81 Indiana Law Journal 1001 (2006)
American courts have always interpreted statutes contrary to their plain meaning to avoid absurd results. John Manning, a prominent new textualist scholar, has recently challenged the legitimacy of the "absurdity doctrine" on the grounds that it cannot be justified by legislative intent or squared with principles of constitutional law. His critique relies, however, upon deeply contested economic theories of the legislative process and constitutional structure that view lawmaking as a market in which self-interested participants compete for resources.
This Article provides a comprehensive theoretical defense of the absurdity doctrine that relies instead upon significant aspects of civic republican theory, as well as liberal and pragmatic values, to suggest that while American lawmakers have broad authority to regulate in the public interest, our constitutional republic also has a responsibility to avoid needless harm to the extent fairly possible. When courts interpret laws to avoid absurd results-or privilege a statute's "spirit" over its "letter"-in circumstances that were unanticipated by the legislature, they are justifiably seeking to serve the common good that legislation is presumed to embody, rather than undermining a fragile compromise struck in back-room deals by economic theory's proverbial "rent-seekers." The absurdity doctrine also promotes specific constitutional norms of fairness and equal treatment in a manner that avoids most of the institutional concerns that would arise from more aggressive approaches to judicial review. Not only is Professor Manning's critique of the absurdity doctrine therefore mistaken, but his apparent willingness to incorporate the same underlying principles into his "kinder and gentler" version of textualism demonstrates both the undeniable validity of those principles and the fundamental shortcomings of the economic theories of the legislative process and constitutional structure that underlie the new textualism.
Indiana Law Journal:
3, Article 5.
Available at: http://www.repository.law.indiana.edu/ilj/vol81/iss3/5