Interpretation as Statecraft: Chancellor Kent and the Collaborative Era of American Statutory Interpretation

Farah Peterson

A fundamental institutional dilemma lies behind our debates over theories of statutory interpretation: what can judges do when lay legislatures, out of ignorance, inattention, or democratic zeal, enact statutes that threaten the working structure of specific areas of law or contravene deep-rooted rule of law principles? During the first decades of the nineteenth century, the question of what a judge could do to rein in a runaway legislature was particularly urgent because of the enormous amount of authority legislatures were given under the first American constitutions. In an overreaction to colonials’ decades of experience with corrupt governors and judges who took their cues from their masters in London, the first state constitutions gave legislatures broad powers without practical limits. In many states, the legislative branches actually controlled the judicial branches through appointment and removal authority, the ability to change tenure length, and salary dependence. It wasn’t long before many Americans regretted these original grants of authority.