Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation

" Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation ," 115 Harvard Law Review 1456 (2002)

"Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation," 115 *Harvard Law Review* 1456 (2002)

Jeanne C. Fromer, Note, Looking to Statutory Intertext: Toward the Use of the Rabbinic Biblical Interpretive Stance in American Statutory Interpretation, 115 Harv. L. Rev. 1456 (2002)

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03/27/06 -8:42 AM 1458 HARVARD LAW REVIEW [Vol. 115:1456 tive study of the Bible and consists primarily of rabbinic exegesis tied to scriptural verses." 12 In interpreting the Torah, rabbis struggled with a problem familiar to American courts and agencies today: how to use a text that is at least occasionally unclear to answer questions of law or to apply law to particular facts. By contrast, rabbis, when acting as judges in cases under Jewish law, employed a legal realist approach, which did not necessarily rely on the Torah. 13 Some of midrash is believed to be an integration of existing law with the text of the Torah. 14 To the extent that is integrative, it merely grounds existing norms in the Torah. Many scholars believe that midrash is also in part a creative interpretation of the law. 15 Midrash's creative interpretation serves two purposes. First, it resolves difficulties in understanding excerpts of the biblical text or in reconciling divergent components of the text, which are assumed to be perfectly and divinely harmonious. 16 Second, it addresses problems arising in daily life, often because of social and technological changes, which the Torah at times does not explicitly address. 17 Genesis provides one example of midrash's harmonization objective. After placing Adam in the Garden of Eden, God told him he would die the day he ate from the tree of knowledge of good and evil. 18 Yet after eating from the tree, he lived to the age of 930. 19 In a midrash, the rabbis resolved this inconsistency by claiming that a day to God is a thousand years long, deriving support for this proposition from -------------------------------------------------------------42. From this time through the end of the fifth century C.E., rabbinic scholars learned and debated the Mishnah, and their efforts resulted in the writing of the Talmud. Id. at 42. The Palestinian academies produced one version of the Talmud (Jerusalem Talmud), and the Babylonian academies produced another (Babylonian Talmud). See Suzanne Last Stone, In Pursuit of the Counter-Text: The Turn to the Jewish Legal Model in Contemporary American Legal Theory, 106 HARV. L. REV. 813, 816 n.13 (1993). 12 Stone, supra note 11, at 816 n.13. Authors of midrash derived support for their exegesis from the Torah: when Jethro, Moses' father-in-law, asked Moses why he judged all day, Moses responded that people came with disputes and he made "them know the statutes of God, and His laws." Exodus 18:13-16. 13 See HANINA BEN-MENAHEM, JUDICIAL DEVIATION IN TALMUDIC LAW: GOVERNED BY MEN, NOT BY RULES 5-17 (1991). 14 1 ELON, supra note 2, at 286. 15 Id. 16 See id. at 286-87. 17 See id. 18 Genesis 2:15-17. 19 Id. at 5:5. Psalms. 20 Therefore, Adam is said to have died the "day" he ate from the tree because he lived less than one thousand years. 21 Interpretation as a response to change continues to arise in Jewish life. One example is the use of electricity on the Sabbath. Jewish law prohibits thirty-nine categories of activity on this day, 22 including making fire, 23 building, 24 and destroying. 25 Following the advent of electricity, it was uncertain whether one could activate or deactivate it on the Sabbath. 26 Rabbinic authorities forbade these activities, 27 but they did allow timers for electricity to be set before the Sabbath. 28 In trying to understand Jewish law and apply it to everyday life, the text of the Torah must be interpreted. By the second century B.C.E., a number of interpretive canons had emerged to guide scholars in their quest for the knowledge hidden in the Torah. 29 The canons were useful not only to provide new interpretations, but also to impose reason on previously rendered interpretations of the Torah. 30 Rabbi -------------------------------------------------------------Ishmael promulgated thirteen such interpretive canons: 31 inference a fortiori (kal va-khomer), inference from the similarity of words or phrases (gezerah shavah), application of a general principle (binyan av), eight canons addressing permissible inferences from the relationship between a generalization and a specification, explanation of an ambiguous word or passage from its context or from a subsequent expression (davar ha-lamed me-inyano ve-davar ha-lamed mi-sofo), and harmonization of two contradictory passages by a third passage (shenei ketuvin ha-makhshishin zeh et zeh). 32 Although not included among Rabbi Ishmael's thirteen, another canon frequently used in rabbinic biblical exegesis is that of scriptural analogy (hekkesh). 33 1. Kal va-khomer. -Kal va-khomer analogizes between two subjects using the logic of a fortiori. 34 It is a bidirectional tool in that it infers from the more lenient to the ------------------------------------------------------------- 31 Hillel is credited with seven interpretive canons, similar to Rabbi Ishmael's thirteen, somewhat rearranged. Tosefta Sanhedrin 7:11, translated in TRACTATE SANHEDRIN: MISHNAH AND TOSEFTA 76-77 (Herbert Danby trans., 1919) [hereinafter TRACTATE SANHEDRIN]. Despite the credit, it is believed that Hillel did not originate these canons -he merely gave them names and clustered them together -because there is evidence of the use of these canons before his time. See 1 ELON, supra note 2, at 315-16, 315 n.106 (placing the canons as early as Sinai). See generally S. Zeitlin, Hillel and the Hermeneutic Rules, 54 JEWISH Q. REV. 161 (1963) (describing Hillel's connection to the seven canons). 32 Beraita deRabbi Ishmael (Gary G. Porton trans.), in 1 JACOB NEUSNER, SIFRA: AN ANALYTICAL TRANSLATION 57, 57-60 (1988) [hereinafter SIFRA]. A study of Rabbi Ishmael shows that he is not as systematic in practice as he is in his canonization: he does not employ all of his canons, and he reasons with other rhetorical tools, such as puns. Gary G. Porton, Rabbi Ishmael and His Thirteen Middot, in 1 NEW PERSPECTIVES ON ANCIENT JUDAISM 3, 5-14, 16-18 (Jacob Neusner, Peder Borgen, Ernest S. Frerichs & Richard Horsley eds., 1990). 33 See BABYLONIAN TALMUD, Zebahim 49b. 34 A New York state judge explicitly invoked the principle of kal va-khomer to reason that if the law provides a "right to adjudicate and award custody[, it] must certainly include the right to independently adjudicate visitation." Johny R. v. Necta V. (In re Juan R.), 374 N.Y.S.2d 541, 548 (Fam. Ct. 1975). The judge justified the invocation of the canon by noting that "it is not unreasonable to assume that the very 'Rosetta Stone' of Talmudic exegesis wherein law was derived from text, history, custom and usage via thirteen principles of construction, played a major part in the development of classic rules of construction in the Common Law." Id. -This canon analogizes between subjects based on similarity in use of language or form. 37 The rule could be invoked in many ways, so to prevent misuse, rabbinic scholars disallowed its usage unless tradition explicitly authorized it. 38 For example, the Torah commands the bringing of a daily sacrifice using the word be-mo'ado (meaning "in its season"). 39 Because there are no exceptions to the requirement, it is understood that this sacrifice is to be brought even on the Sabbath. Using gezerah shavah, the ancient rabbis imported this meaning of be-mo'ado to another context in which it appears: The Torah commands the bringing of the paschal lamb be-mo'ado. 40 Thus, the halakhic authorities inferred that the paschal lamb should be brought on its appointed day, even if that day were the Sabbath. 41 3. Binyan Av. -Binyan av permits analogies between two different subjects on the basis of comparable features. For example, the Torah prohibits sexual relations between a man and any maternal half-sister. 42 In another passage, the Torah prohibits a man from marrying his father's sister. 43 The application of the binyan av canon permits the inference that a man cannot marry his father's maternal half-sister. 44 ------------------------------------------------------------- 35 An example of inferring from the more stringent situation to the more lenient one can be found in deciding what labor is permissible on Jewish festivals. On the Sabbath, no labor is permitted, but on the Jewish festivals, the rules are more lenient. Therefore, because it is permissible to cut food to prepare for its consumption on the Sabbath, when no labor is permitted, it is clearly permissible to do the same on festivals, when more labor is permitted. See BABYLONIAN TALMUD, Bezah 20b. 36 Rabbi Ishmael points out ten examples of this canons explicit use in the text. Genesis Rabbah 92:7, translated in 3 GENESIS RABBAH, supra note 20, at 290. For example, Rabbi Ishmael points to Moses' question of, if the Israelites would not heed his word, how would Pharaoh listen to him? Id. (quoting Exodus 6:12). 37 The rabbis disagreed over the scope of this rule: some said it could only be invoked when language in either of the two references at issue was redundant, while some said it might be used whenever two references had similar language. 1 ELON, supra note 2, at 351-52. 4. Inferences Between Generalizations and Specifications. -The eight canons about permissible inferences between generalizations and specifications are concerned with whether one should rely on a specific set of enumerated items or on an explicit general category to determine the scope of a verse when both are cited. 45 For example, in listing which animals may constitute sacrificial offerings, the Torah allows the use of animals, cattle, and sheep. 46 Because the commandment specifies cattle and sheep after the general category of animals, the rabbis discerned that wild beasts could not be sacrificed. 47 5. Davar ha-Lamed me-Inyano ve-Davar ha-Lamed mi-Sofo. -This principle resolves ambiguity either from context or from a nearby expression. For example, the Ten Commandments prohibit stealing. 48 It is unclear whether this prohibition extends to property or to people (that is, kidnapping, which the Torah labels "stealing of man" 49 ). The rabbis resolved this ambiguity in favor of a prohibition of kidnapping. 50 They reasoned that immediately preceding the prohibition of theft are commandments that prohibit two capital offenses, murder and adultery. 51 Kidnapping, unlike theft of property, 52 also carries the death penalty; 53 therefore, the rabbis concluded, the commandment must refer to kidnapping. 6. Shenei Ketuvin ha-Makhshishin Zeh et Zeh. -Because one may not presume that there is an error in the Torah, authorities must resolve apparent inconsistencies. The rabbis used this canon to resolve possible contradictions between two passages through a harmonizing theory. This canon applies to contradictions within a single verse, 54 be- (a) Explicit Analogy. -Until recent times, many legal systems supported the notion that a rape victim was no victim at all, unless the victim resisted the rapist. 57 The Torah supports a similar notion, but it includes exceptions to the resistance requirement. In describing the prohibition of rape, the Torah states that a betrothed female raped in a field can be considered a victim because any protest she might have made would have gone unnoticed. 58 The Torah compares this rape in a field to a man's murder of his neighbors. 59 Halakhic authorities used this analogy to derive new rules about murder in the context of rape and murder. For example, they derived the principle that a third party can save a rape victim by killing the rapist, if that is the only way to -------------------------------------------------------------that one day is similar to two days and two days to one day; therefore, survival for a twenty-four-hour period sufficed to allow a master to escape vengeance. MEKHILTA DE-RABBI ISHMAEL, Tractate de-Nezikin ch. 7, translated in 3 LAUTERBACH, supra note 50, at 61. 55 One of the Torah's most famous statements is "[Y]ou shall love your neighbor as yourself." Leviticus 19:18. Just one verse earlier, the Torah commands not to hate another in one's heart. See id. at 19:17. If one must love one's neighbor as much as oneself, what is the purpose of not allowing hate? It seems to be a weaker commandment than, and in that sense, contradictory of, the immediately subsequent one. The rabbis interpreted the prohibition on hating to be a prohibition only against hating a person secretly -instead, one must reproach that person. Sifra 19:17, translated in 3 SIFRA, supra note 32, at 108-09. What then of the commandment to love? Some interpret it to mean merely not to do to others what one would not want done to oneself. See, e.g., TARGUM PSEUDO-JONATHAN Leviticus 19:18, translated in 3 THE ARAMAIC BIBLE 177 (Michael Maher trans., 1994). This interpretation resolves the apparent contradiction. 56 An example of a contradiction between two sections occurs in the story of the sacrifice of Isaac. First, God told Abraham that he would have offspring through his son, Isaac. Genesis 21:12. Later, before Isaac had produced any offspring, God commanded Abraham to slaughter Isaac. Id. at 22:2. To cure this inconsistency, rabbinic biblical interpreters reasoned that God had in fact ordered Abraham to place Isaac on an altar but had not ordered him to slaughter Isaac. Genesis Rabbah 56:8, translated in 2 GENESIS RABBAH, supra note 20, at 284. Therefore, God's promise of progeny to Isaac was valid. As another example, recall that although God sentenced Adam to death within one day, he lived for 930 years because a day to God is like one thousand years to people. -One way to invoke implicit analogy is in explaining why two seemingly unrelated passages or topics are placed next to each other in the Torah. For example, the authorities explained that, because laws of divorce and betrothal are juxtaposed in a single passage, 61 similar legal processes govern both. 62 Generally an interpreter can look at any single textphrase, sentence, paragraph, essay, statute, or one hopes, this Note -and discern, because of its coherence, structural and contextual clues to the most valid interpretation of that text. 63 The rules of thumb used to interpret a text in that fashion are textual canons because they look only within that text for answers to interpretive questions. To derive the textual canons, some of the canons of Rabbi Ishmael must be further subdivided. The textual canons are the eight canons of inferences between generalizations and specifications, davar ha-lamed me-inyano ve-davar ha-lamed mi-sofo, shenei ketuvin ha-makhshishin zeh et zeh to the extent that it resolves apparent contradictions between passages in the same section or between parts of the same verse, and hekkesh and kal va-khomer when used on a discrete tex- -------------------------------------------------------------60 BABYLONIAN TALMUD, Sanhedrin 74a. The authorization for a third party to save a potential murder victim derives from Deuteronomy 22:26-27. 61 Deuteronomy 24:2 (stating that when a woman is divorced, she may become betrothed to another man). 62 BABYLONIAN TALMUD, Kiddushin 5a. 63 Many scholars believe that there is not necessarily a "most" valid interpretation of a text. See, e.g., DANIEL BOYARIN, INTERTEXTUALITY AND THE READING OF MIDRASH 39 (1990) ("[T]he Bible, because of its textual heterogeneity, allows for the multiple self-glossing readings of midrash."); Cover, supra note 5, at 15. However, this Note does not claim that there is necessarily a single, most valid interpretation of a text. It simply claims that a legal system may be structured to yield only a limited range of "best" textual interpretations -if not just one -based on the system's goals, standards, and rules. Then, the interpretive question often involves identifying the interpretive stance that gels most closely with the corresponding legal system. The set of most valid interpretations, therefore, derives from application of this identified interpretive stance. HLR NOTE 03/27/06 -8:42 AM LOOKING TO STATUTORY INTERTEXT 1465 tual unit. These canons make inferences internal to a single context. Sometimes an interpreter may want to use other texts to interpret a text. Because rabbinic Judaism assumes that the Torah has a single author and is perfect and harmonious, 64 an interpreter can justifiably use one textual portion to illuminate other textual portions. 65 The rules that govern exegesis between passages are intertextual canons. The remaining canons -devar ha-lamed me-inyano vedavar ha-lamed mi-sofo when it is applied across contexts, shenei ketuvin ha-makhshishin zeh et zeh to the extent it resolves apparent contradictions between passages in different sections, hekkesh and kal va-khomer when used across contexts or sections, gezerah shavah, and binyan av -view the Torah in an intertextual light. T - ------------------------------------------------------------66 They reason across contexts and typically apply when the textual canons do not yield a clear answer. 67 The halakhic authorities had concerns about the validity of some of the intertextual canons, and they sought to restrict them. 68 For instance, they proclaimed that scholars may not infer more than the basic principle involved. 69 Admittedly, it is hard to distinguish between some textual and some intertextual uses of the canons. To reason intertextually means first to erect textual boundaries between passages. For example, employing kal va-khomer using two adjacent Torah verses may be textual or intertextual, depending on whether the verses are part of the same segment. But a general rule is that physically separate texts or cooccurring texts that speak to different subjects should be considered intertext. In any case, the conceptualization of 64 Many recent biblical scholars believe that the Torah originally had multiple authors. See generally RICHARD ELLIOTT FRIEDMAN, WHO WROTE THE BIBLE? (1989). 65 For other reasons that rabbinic Judaism may use the concept of intertext to interpret passages, see section V.B, pp. 1471-74, below. 66 Cf. BOYARIN, supra note 63, at 15 ("[T]he very fractured and unsystematic surface of the biblical text is an encoding of its own intertextuality, and it is precisely this which the midrash interprets."). 67 Cf. 1 ELON, supra note 2, at 343-44 (suggesting the precedence of explicative and logical canons over analogical canons). There is a partial ordering within the intertextual canons. Explicit analogy within the Torah has the highest precedence within the intertextual canons, because it is as if the rule has been stated directly by the Torah. Id. at 360. Next comes gezerah shavah, because its use is restricted to explicitly authorized traditional uses. Id. Ranked third is kal va-khomer, which is invoked in the Torah. Id. Binyan av should be invoked next. Id. 68 [Vol. 115:1456 the canons as either textual or intertextual is useful to the extent that the assumptions of authorial unity and textual perfection give license to use intertextual canons. 70 There are potential advantages and disadvantages to intertextual reasoning across a work that may, in reality, have multiple authors or editors or may not be intended by its creators to be consistent. 1. More Interpretive Information. -In interpreting a legal text, there invariably are gaps, either because the text is unclear or because the text's author did not explicitly anticipate a particular factual situation. 71 In either case, interpreters must turn to some methodology (even one that is ad hoc) to excavate meaning from the text. As section IV.B.2 notes, interpreters in the American legal system -judges, agencies, and others -have many different tools with which to excavate meaning, including dictionaries from the time the text was authored, current dictionaries, authorial history, other texts, logical principles, judicial precedent, social goals, authorial purpose, and authorial intent. And as section V.A describes, different interpretive theories prefer certain shovels to others. Some theories might prefer related textual, or intertextual, information in interpreting a text. That is the approach of rabbinic Judaism: when an interpreter cannot discern the meaning of the Torah's text through the textual canons, he turns to the intertextual canons. 72 More information makes it easier for halakhic authorities to fill gaps. These authorities could just as easily turn to other sources, such as the social mood or numerology, 73 to inter- -------------------------------------------------------------70 See Stone, supra note 11, at 854 ("Because the [Jewish] law as practiced is supposed to reflect the will of God and achieve substantive ends, conflicting legal propositions that result in behavioral divergence are . . . problematic for Jewish law . . . ."). 71 See REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 22 (1975). 72 See BOYARIN, supra note 63, at 16 ("The Torah, owing to its own intertextuality, is a severely gapped text . . . . [The rabbis'] own intertext -that is, the cultural codes which enable them to make meaning and find meaning, constrain the rabbis to fill in the gaps of the Torah's discourse with narratives which are emplotted in accordance with certain ideological structures."). 73 Some rabbinic scholars do turn to numbers to interpret the Torah. These scholars assign a distinct number to each letter of the Hebrew alphabet. A word's numeric value is the sum of the numeric values of its letters. Through the interpretive process called gematria, words (or phrases or letters) are connected to others HLR NOTE 03/27/06 -8:42 AM LOOKING TO STATUTORY INTERTEXT 1467 pret the Torah. But rabbinic Judaism posits a single author for the Torah and a perfectly harmonious text. These religious assumptions lead its practitioners to prefer what they consider the holy and perfect intertextual portions of the Torah to external sources to fill gaps. 2. Consistency. -When a text is viewed or is intended to be viewed as a single unit, even if it has multiple authors or inconsistencies, the interpreter imputes consistency to the text. There are merits to a coherent legal system. First, there is greater integrity in a legal system that coheres plausibly, even if it is composed of multiple elements. Second, consistency is often a jurisprudential or an aesthetic preference. Third, a consistent legal system is typically more acceptable to adherents because it is relatively easier for them to understand their commitments; a consistent system has easily digestible standards, even if it also has a multiplicity of rules. As mentioned above, rabbinic Judaism imputes consistency to the Torah. However, it condones multiple interpretive authorities without any supreme arbiter. 74 Therefore, not all interpreters will interpret the Torah consistently with each other, but each interpreter will impute internal consistency to the Torah. 3. Ignorance of Possible Realities. -Another implication of sanctioning intertextual reasoning is that, unless it is certain that the authors (or author) of multiple texts intended for them to be read together, the interpretive tools rest on a fiction. That fiction may be benign when the authorial intent that multiple texts should not be read as a unit is irrelevant to the legal system, or more generally, when the benefits of reading the texts as a unit outweigh the costs. The fiction is malignant, or neutral at best, in all other cases. People are typically averse to following a legal system that fundamentally rests upon malignant fictions. 75 -------------------------------------------------------------with the same or related numeric values to derive mystical meanings. See SION, supra note 29, at 238-40. 74 See infra note 82; see also BEN-MENAHEM, supra note 13, at 8-9; 1 ELON, supra note 2, at 78-79 (describing the multiplicity of Jewish communities, which leads to some different legal rules). 75 Those without faith in a system have good reason to opt out of it. Because adherents have no conclusive proof that God did not compose the Torah or that the Torah was not meant to be read as a single unit, by virtue of believing in the system and adhering to it, they do not experience the cognitive dissonance that a nonbeliever faces. Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 4. Implausible Interpretations. -The unreality of some intertextual assumptions can lead to forced interpretations that cut against common sense. 76 For example, it may seem forced to harmonize, as the rabbis did, God's promise to Abraham that Isaac would bear him progeny with God's commandment to Abraham to sacrifice Isaac. 77 As long as one is willing to assume the perfect consistency of the Torah, such interpretations seem unproblematic. But to a healthy skeptic, it may seem that halakhic authorities engage in unrealistic harmonizing or intertextual interpretations to explain away apparent inconsistencies or oddities in the Torah. 78 This Part explores whether it is illuminating to crosspollinate between the rabbinic legal system, based on its approach to midrash, and the American legal system by comparing interpretation in the two systems. 79 Specifically, it looks to the Torah and to the collection of federal statutes as examples of unitary statutory texts. There are many similarities between the rabbinic Jewish system and the American legal system. First, both systems rest on foundational texts "adopted by consent into law." 80 Second, both the Torah and the body of federal enactments purport to describe adherents' day-to-day legal responsibilities. Third, both mainly center on prescribed and proscribed actions, rather than beliefs. 81 Fourth, adherents of each sys- -------------------------------------------------------------76 Cf. Amar, supra note 1, at 799 ("Carried to extremes, [constitutional] intratextualism may lead to readings that are too clever by half -cabalistic overreadings conjuring up patterns that were not specifically intended and that are upon deep reflection not truly sound but merely cute . . . or mystical."). 77 See supra note 56. 78 For this reason, many authorities insist that the canons should not be used "to exceed the bounds of plausibility." 1 ELON, supra note 2, at 380; see id. at 380-83 (citing examples of boundaries set by the authorities). 79 This Note does not attempt any comparisons between the Jewish and American judicial approaches; rather, it compares midrashic interpretation to American statutory interpretation, whether by courts or agencies. 80 Emil A. Kleinhaus, Note, History as Precedent: The Post-Originalist Problem in Constitutional Law, 110 YALE L.J. 121, 145 (2000). 81 See Robert M. Cover, Obligation: A Jewish Jurisprudence of the Social Order, 5 J.L. & RELIGION 65, 67 (1987) ("[T]o be one who acts out of obligation is the closest thing there is to a Jewish definition of completion as a person within the community."). Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 -Rabbinic Judaism is a religion, with all the implications that such a classification entails. Americanism, despite its noted similarity in many respects to a religion, 83 fundamentally lacks the theistic notions of most religions. 84 American statutes are understood to be humanmade. For rabbinic Judaism, however, the divine authorship of the Torah is a central tenet and confers a holy status upon the Torah. Adherents of rabbinic Judaism firmly believe in its correctness and absolute importance. By contrast, of course, no one believes that federal laws are infallible. 2. Availability of Background Materials for the Text. -The portions of the oral law that rabbinic Judaism holds were passed down from Moses provide the only interpretive background material for the Torah. Because there were no floor debates between God and Moses regarding codification 85 and 82 See Kleinhaus, supra note 80, at 144. A purported distinction between the two legal systems cited by some comparative scholars is the acceptance of multiple, even conflicting, halakhic answers in rabbinic Judaism as compared with the American legal system's anticipation of a single, correct answer to a legal question. See, e.g., Cover, supra note 81, at 69. Professor Stone, however, shows that this depiction of Jewish law is incomplete. Although Jewish law includes rejected halakhic opinions in the Mishnah and the Talmud, it does not indefinitely tolerate behavioral pluralism. Stone, supra note 11, at 836. But see Hanina Ben Menahem, Is There Always One Uniquely Correct Answer to a Legal Question in the Talmud?, 6 JEWISH L. ANN. 164, 167-75 (1987) (presenting examples of a single law that contains incompatible norms, both of which are binding but irreconcilable, so that a person bound by the law can follow either norm). Furthermore, this picture of the American legal system is also incomplete. Because the U.S. Supreme Court does not (or cannot) resolve every legal question, different jurisdictions will have some different legal answers. 83 See JEROLD S. AUERBACH, RABBIS AND LAWYERS: THE JOURNEY FROM TORAH TO CONSTITUTION 5 (1990) (claiming that the "interweaving of American history with biblical text has profoundly molded the self-conceptions of the American people"); cf. SANFORD LEVINSON, CONSTITUTIONAL FAITH 29-30 (1988) (presenting Protestant and Catholic visions of American constitutional interpretation). 84 See AUERBACH, supra note 83, at 44-45; Stone, supra note 11, at 894. 85 One may choose, however, to see interpretations in the Mishnah, Talmud, midrash, or later halakhic authorities as a time-delayed floor debate between halakhic authorities. That said, the "debate" would occur after the enactment at issue, which makes any argument for an analogy to floor debates or congressional reports at best a loose fit. because there is no way to consult God on authorial intent, 86 halakhic interpreters have available only the Torah's text and the discussions among halakhic authorities. 87 It is thus crucial for interpreters to have interpretive standards or canons with which to glean insights from the text, their only historical source. 88 In comparison, interpreters of American statutes have a plethora of historical material from which to divine statutory meaning. Given the option, American interpreters may feel less compelled to turn to other statutes only. As Part V demonstrates, however, there is good reason to consider the entire body of American statutory law in interpretation. 3. Consistency of the Text. -By assuming that the Torah is perfectly harmonious, rabbinic Judaism has imputed an internal consistency to the multilayered text by ensuring that it will be coherently interpreted by each interpreter. But there are no explicit constitutional or common law requirements that insist on imputing any consistency to the multitextured collection of federal statutes. 4. Amendability of the Text. -The Torah specifies that nothing can be added to or subtracted from it. 89 To rabbinic Jews, that means that all religious obligations are already contained within the Torah. 90 By contrast, it is relatively -------------------------------------------------------------86 See Stone, supra note 11, at 840 ("[T]hose who believe that the revelation is closed must approach God indirectly and discern God's will by studying the various interpretations of His will accumulated over the generations."). 87 See Kleinhaus, supra note 80, at 147. 88 See DAVID KRAEMER, THE MIND OF THE TALMUD: AN INTELLECTUAL HISTORY OF THE BAVLI 121 (1990) ("[I]f divine will was available only in a text, then that divine will could be known only through interpretation."). 89 Deuteronomy 4:2. 90 See, e.g., MISHNAH, Aboth 5:22, translated in DANBY, supra note 6, at 458. There are, however, two "exceptions" to this belief. First, the Torah's laws must be continually reconstrued to understand new factual or social situations, cf. Noam J. Zohar, Midrash: Amendment Through the Molding of Meaning, in RESPONDING TO IMPERFECTION 307, 307 (Sanford Levinson ed., 1995) (contending that midrash allowed authorities to "'amend' divine revelation"), but only within "the confines of specific norms" to prevent unbounded recreation of halakhah, David R. Dow, Constitutional Midrash: The Rabbis' Solution to Professor Bickel's Problem, 29 HOUS. L. REV. 543, 559 (1992). Second, rabbinic Judaism sometimes finds it acceptable to legislate outright in the form of takkanot. Id. at 561-62 (describing rabbinic legislation and its justifications). In the Torah's commandment not to stray to the right or left of the word that halakhic authorities declare, Deuteronomy 17:11, authorities have found support for legislating. See BABYLONIAN TALMUD, Shabbath 23a. Rabbis, however, consider such legislation inferior to the Torah, a temporary power to be used only under special circumstances, preservative of the halakhic system. Dow, supra, at 561-62; Kleinhaus, supra note 80, at 146 n.122. HLR NOTE 03/27/06 -8:42 AM LOOKING TO STATUTORY INTERTEXT 1471 easy to amend federal law. 91 That said, as with Jewish law, a federal law must fall within the confines of specified norms -here, the Constitution. 5. Timing of the Text's Creation. -Rabbinic Judaism holds that the Torah's text was composed all at once. This belief ascribes to the Torah a single social and historical context. The implication is that when halakhic authorities reason intertextually, they do not have to consider the possibility of varying social, historical, or linguistic conditions for different passages. Different federal statutes, however, are clearly enacted at different times and with varying social and historical conditions. Thus, interpreting two statutes together may require comparing their respective social and historical conditions. 92 In sum, important distinctions exist between the rabbinic Jewish and American legal systems. Therefore, it is not immediately acceptable to incorporate the rabbinic Jewish interpretive stance of intertextuality into theories of American statutory interpretation. Incorporation would, however, be possible if there were independently acceptable reasons within American legal theory for treating Congress's collection of enacted statutes as one textual unit. This Part sets forth reasons that an intertextual approach to statutory interpretation is both useful and justified when a statute does not yield a clear interpretation. The intertextual approach is a valuable tool to interpreters -courts, agencies, and others -of diverse philosophies, from originalism to dynamic interpretivism. The most popular contemporary theories of statutory interpretation rely on finding the original meaning of a statute. 93 Both intentionalism 94 -determining the intent of the -------------------------------------------------------------91 See U.S. CONST. art. I, § 7. Note, however, that political will must exist. 92 Many scholars point out that interpretation at a particular point in time incorporates the interpreter's cultural conditions. See, e.g., KUGEL, supra note 10, at 6-7 ("[T]he Jews of [the post-exilic] period turned to their own ancient writings to legitimate their political views."). 93 See generally WILLIAM N. ESKRIDGE, JR., DYNAMIC STATUTORY INTERPRETATION 13-47 (1994). Originalist interpreters typically try to carry out the will of the majoritarian, enacting legislature. Id. at 14. 94 See id. at 14-25. enacting legislature -and purposivism 95 -evaluating the enacting Congress's original purpose -are key methods of understanding a statute's original meaning. Significantly, however, it is difficult to determine the intent or purpose of Congress, a body composed of numerous people, except through the texts they enact into law. 96 Both intentionalism and purposivism often pierce the congressional veil to discover clues regarding intent 97 or resort to "imaginative reconstruction" of legislative intent. 98 Therefore, they ultimately cut against majoritarian values, 99 and as sections B and D of this Part argue, it is preferable to use intertextual clues to determine purpose or intent. A third flavor of originalism is textualism, which posits that an interpreter need look to only the statutory text to interpret a statute. 100 The benefit of textualism is its connection to rule-of-law values, because ordinary citizens can theoretically read and understand their legal responsibilities and because the "statutory text has the strongest connection to majority preferences." 101 However, texts are often ambiguous, and interpreters must look to sources outside the text to resolve ambiguities. 102 Those sources have no constitutionally preferred status, 103 and while it is preferable to look to the text as a first measure, ambiguities that remain after a textualist reading preferably should be resolved by reference to constitutionally preferred documents. 104 -------------------------------------------------------------95 See id. at 25-34. 96 See id. at 16-25. 97 See id. at 16-21, 26-34 (demonstrating the need to look to statements of individual legislators or committee reports to discern intent). Another theory of statutory interpretation is the dynamic variety, that an interpreter should construe a statute in light of current conditions, which may have been unanticipated when the statute was enacted. 105 To some extent, interpreters can evaluate the social, cultural, economic, and other changes that may have occurred since the passage of a statute by analyzing texts of related, subsequently enacted statutes, a constitutionally preferred source. 106 There is a concern, however, that dynamic interpretation will interfere with the legislative supremacy of Congress. 107 Article I of the Constitution limits federal legislative power to Congress. 108 Judges interpret federal law in resolving cases or controversies, as does the executive in executing federal laws. 109 In interpreting a statute, if the executive and the judiciary stray beyond the statutory text, constitutional and normative alarms sound. 110 The constitutional concerns 105 See id. at 50 ("[S]tatutory meaning is not fixed until it is applied to concrete problems."). The constitutional basis for this theory is that interpretive responsibilities are distinct from legislative responsibilities, so interpreters should work from their current perspectives. Id. at 58. 106 See United States v. Fausto, 484 U.S. 439, 453 (1988) ("Th[e] classic judicial task of reconciling many laws enacted over time, and getting them to 'make sense' in combination, necessarily assumes that the implications of a statute may be altered by the implications of a later statute."). 107 ESKRIDGE, supra note 93, at 120; see K Mart Corp. v. Cartier, Inc., 486 U.S. 281, 325 (1988) (Scalia, J., concurring in part) (maintaining that dynamic interpretation overruns "the prerogative of each currently elected Congress to allow those laws which change has rendered nugatory to die an unobserved death if it no longer thinks their purposes worthwhile; and to allow those laws whose effects have been expanded by change to remain alive if it favors the new effects"). If an interpreter invalidates a statute he finds currently unsuitable via dynamic interpretation, it is unlikely that the legislature would override the interpretation, partly because large, losing groups often lack political clout. ESKRIDGE, supra note 93, at 152. 108 U.S. CONST. art. 1, § 1. 109 To go beyond the four corners of a statute in judicial interpretation is a suspect practice. See, e.g., Passamaquoddy Tribe v. Maine, 897 F. Supp. 632, 637 (D. Me. 1995) [Vol. 115:1456 arise from the theory of separation of powers and the method of lawmaking. Thus, interpreters of a statute should first look to the statute itself both because it is the document in question and because it has a constitutionally preferred status. 111 But just as the Torah has gaps that need filling, whether because of social changes, new factual situations, or linguistic ambiguities, so do federal statutes. 112 Important questions include when interpreters should look beyond the text and to which sources interpreters should turn for help with statutory interpretation. Just as halakhic authorities turned to the intertextual canons only when the textual canons were unhelpful, so too should statutory interpreters turn to other sources only when the text at issue is unyielding. 113 Once judges deem it necessary to look beyond the text of a statute, they should turn to the intertext: the entire canon of American statutes. 114 Turning to the statutory canon is a question of relative institutional competence. 115 After consulting the primary document -------------------------------------------------------------termine whether a statute is obsolete, whether in one way or another it should be consciously reviewed"); ESKRIDGE, supra note 93, at 58 (arguing that because the Constitution separates interpretive responsibilities from legislative responsibilities, interpreters have grounds to work from their current perspectives); id. at 116 (positing that "the framers' views [of the Article III judicial power] were informed by the same practical, hermeneutical, and institutional considerations that render statutory interpretation dynamic"); WILLIAM D. POPKIN, STATUTES IN COURT: THE HISTORY AND THEORY OF STATUTORY INTERPRETATION 2 (1999) (arguing that judges should engage in "ordinary judging" and "fit statutes into their past and future"). 111 Scalia, supra note 110, at 22 ("The text is the law, and it is the text that must be observed."). 112 See ESKRIDGE, supra note 93, at 9 ("At the time of its enactment, a statute usually resolves the most pressing legal questions that gave rise to it . . . . For such issues there is no need for 'interpretation'; the statute is clear. Interpretation is required for those issues that were either unanticipated or politically sidestepped."). While criticizing departure from the text, Justice Scalia, arguably the nation's most noted textualist, acknowledges that "words do have a limited range of meaning." Scalia, supra note 110, at 24. This comment implies that the text itself cannot resolve all ambiguities. 113 A statute is unclear only when "there are decent arguments for each of two competing interpretations of it." RONALD DWORKIN, LAW 'S EMPIRE 352 (1986). 114 See Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring in the judgment) ("The meaning of terms on the statute books ought to be determined . . . on the basis of which meaning is . . . most likely to have been understood by the whole Congress which voted on the words of the statute . . . [and is] most compatible with the surrounding body of law into which the provision must be integrated . . . ."). 115 See POPKIN, supra note 110, at 2-3 (insisting that theories of statutory interpretation should look to the institutional competence of courts rather than to the legitimacy of courts in determining the best interpretive approach). HLR NOTE 03/27/06 -8:42 AM LOOKING TO STATUTORY INTERTEXT 1475 and finding it unhelpful, judges should turn to other majoritarian documents written and enacted by the same entity -Congress -before consulting sources that lack the constitutionally preferred majoritarianism, such as social conditions, floor debates, committee reports, and unenacted statements of legislative purpose. Furthermore, it is important to ascribe to Congress's work a single, coherent set of principles. 116 As Professor Dworkin argues, judges should "identify legal rights and duties, so far as possible, on the assumption that they were all created by a single author -the community personified -expressing a coherent conception of justice and fairness." 117 As discussed above, a law that has a clear interpretation should be interpreted as such, even if inconsistent with the body of laws. 118 However, when it does not, integrity and consistency are valuable second-best motives. 119 Although Congress is composed of hundreds of members and its composition changes with each election, it is, in a real sense, a single entity. 120 There is a sense of continuity from one Congress to the next. 121 It may seem formalistic to use a federal statute from the 1800s to interpret a recently enacted statute, but Congress creates a body of laws. If a Congress disfavors a prior law, it can repeal it, and it knows that future Congresses can do the same. 122 Old and new legislative enactments are equal in force. - ------------------------------------------------------------116 DWORKIN, supra note 113, at 166; see also id. at 52 (arguing that it is important to "impos[e] purpose on an object or practice in order to make of it the best possible example of the form or genre to which it is taken to belong"). 117 Id. at 225. 118 Id. at 401. 119 Professor Dworkin argues that, as elements of the legislative process to which integrity should be imputed, legislative history and committee reports are important components of statutory interpretation. Id. at 342-43. However, as this Note argues, these sources lack a majoritarian, constitutionally preferred signature and therefore do not deserve the same respect as the body of federal laws. 120 But see William W. Buzbee, The One-Congress Fiction in Statutory Interpretation, 149 U. PA. L. REV. 171, 173 (2000) ("[T]he concept of a single Congress producing legislation is undoubtedly a fiction. . . . [D]ifferent members, coalitions, parties, moods, and leadership change the nature of each Congress."). 121 Two-thirds of senators remain in their positions from one congressional configuration to the next. See U.S. CONST. art. I, § 3, cl. 2. Moreover, the vast majority of incumbents win reelection in the House of Representatives. Peter H. Schuck, The Thickest Thicket: Partisan Gerrymandering and Judicial Regulation of Politics, 87 COLUM. L. REV. 1325, 1373 n.179 (1987). 122 Cf. ESKRIDGE, supra note 93, at 220-21 (describing the Burger Court as willing to presume congressional acquiescence to earlier laws from its silence or failure to change them). One concern is that it is unrealistic to assume that Congress, in enacting a particular statute, actively seeks to harmonize every inconsistency with earlier statutes or actively anticipates the harmonization of the statute with future statutes. 123 However, as Justice Scalia has noted, this is a "benign fiction." 124 A Congress with an unlimited amount of time to enact, repeal, and amend laws would enact every law it supported, amend every law it would support in an amended form, and repeal every law it did not support. In that case, an interpreter could be certain that each statute could be read consistently with the statutory canon. In reality, however, because each Congress has limited time to enact and repeal laws, it must select which laws to address and thus may not address all inconsistencies. Previously enacted statutes that go untouched must be presumed to have been less important to Congress than those it chose to enact, amend, or repeal, 125 and therefore acceptable as valid law. Absent this presumption, Congress would collapse under the enormous weight of its task. For this reason and because only the majoritarian statutory canon is available, it is necessary to use it. Another objection to intertextual statutory interpretation is that statutes are enacted under varying historical and social conditions, and the same word, form, or topic in one statute may have a significantly different meaning in another. Congress can reference the relevant historical and social conditions within that statute, but it cannot be expected to incorporate a complete dictionary and encyclopedia into every statute it enacts, even if it includes some definitions; any intertextual interpretive theory must allow only for conservative -------------------------------------------------------------123 See Buzbee, supra note 120, at 234; cf. Sorenson v. Sec'y of the Treasury, 475 U.S. 851, 867 (1986) (Stevens, J., dissenting) (arguing that "'it defies belief' to assume that a substantial number of legislators were sufficiently familiar with [a congressional act] to realize that somewhere in the vast piece of hurriedly enacted legislation there was a provision that changed [a] 6-year-old [program]"). 124 Green v. Bock Laundry Mach. Co., 490 U.S. 504, 528 (1989) (Scalia, J., concurring in the judgment). 125 Professor Dworkin analyzes why statutes go untouched: A statute owes its existence not only to the decision people made to enact it but also to the decision of other people later not to amend or repeal it. Of course "decision" may be too strong to describe the negative attitudes that allow most statutes to survive, sometimes long after they serve much use. They survive by inattention and default rather than by any conscious and collective decision. DWORKIN, supra note 113, at 318-19. Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 If the intertext is unhelpful in answering an interpretive question, there may be good reason to pierce the congressional veil by examining individual members' statements 127 or to look to past or present social conditions. But considering the values of separation of powers, the legislative process, majoritarianism, and integrity, reference to the statutory text must take precedence in statutory interpretation, followed first by the canon of statutes, and then by other interpretive guides. 128 This section draws on the rabbinic interpretive canons and finds analogous applications in the interpretation of American statutes. 129 This enumeration by no means limits intertextual stances that interpreters can take, nor does it suggest a preference for one over another. The rabbinic biblical approaches merely illustrate the intertextual approach to statutory interpretation. Interpreters can use a canon akin to gezerah shavah to determine the definition of an undefined word or phrase by looking at other statutes' uses of that word or phrase. Wielding such an intertextual canon is delicate because the meaning of a word or phrase can change, even subtly, over time. Furthermore, in a large statutory canon, words and phrases will be repeated often and in varying contexts. Just as halakhic authorities limited the use of gezerah shavah to traditionally authorized instances, this canon may be most useful when other signals suggest that different statutes could be read together. - ------------------------------------------------------------126 See infra p. 1475 (outlining a conservative approach). 127 See Breyer, supra note 103, at 848-61. But see ESKRIDGE, supra note 93, at 222 (noting that legislators may make statements for strategic purposes that are unrelated to their actual intent, let alone Congress's intent). 128 Cf. Jerry L. Mashaw, Textualism, Constitutionalism, and the Interpretation of Federal Statutes, 32 WM. & MARY L. REV. 827, 844 (1991) ("The textualist views the enterprise of giving meaning through interpretation not as the carrying out of a collective intent that everyone had a fair chance to shape, but as the authoritative application of a text that has an appropriate constitutional pedigree."). 129 Cf. U.S. Sav. Ass'n v. Timbers of Inwood Forest Assocs., 484 U.S. 365, 371 (1988) ("Statutory construction . . . is a holistic endeavor. A provision that may seem ambiguous in isolation is often clarified by the remainder of the statutory scheme -because the same terminology is used elsewhere in a context that makes its meaning clear, or because only one of the permissible meanings produces a substantive effect that is compatible with the rest of the law." (citations omitted)). [Vol. 115:1456 An example of such a permissible use occurred in Christianson v. Colt Industries Operating Corp. 130 In that case, the Supreme Court determined that the "arising under" language in the statute 131 that grants exclusive jurisdiction to federal district courts to hear patent cases should be accorded the same interpretation as the "arising under" language in the statute 132 that grants original jurisdiction to federal district courts to hear federal question cases. 133 The court identified two reasons such intertextual interpretation is appropriate: First, the statutes are neighbors in the same title of the United States Code, which suggests that Congress intended that similar language in the two be construed similarly. 134 Second, the "arising under" language in both statutes mirrors language in an external source -the Constitution's jurisdictional grant in Article III -which provides independent support for the notion that each use of the phrase was intended to codify the same statutory meaning. 135 Given similar situations, intertextualists should feel secure giving the same meaning to similar language in different statutes, even if the statutes were passed at different times. Sometimes two statutes contain seemingly contradictory commands, and interpreters seek to reconcile the apparent inconsistencies by interpreting them harmoniously. 136 For - ------------------------------------------------------------130 486 U.S. 800 (1988). 131 28 U.S.C. § 1338 (1994). 132 Id. § 1331 ("The district courts shall have original jurisdiction of all civil actions arising under the Constitution, laws, or treaties of the United States."). 133 Christianson, 486 U.S. at 808, 814. 134 Congress has delegated to the Office of the Law Revision Counsel of the U.S. House of Representatives the power to specify where in the United States Code a newly enacted law should be placed when Congress does not so specify. See 2 U.S.C. § § 285, 285b(4) (2000). However, Congress specified that 28 U.S.C. § 1338 would reside near § 1331. See Revision of the Judicial Code, ch. 646, 62 Stat. 869, 930-31 (1948) (codified as amended at 28 U.S.C. § § 1331, 1338). 135 It is conceivable to interpret both statutory occurrences of "arising under" as having the same definition as the "arising under" language in Article III. Cf. John Donofrio & Edward C. Donovan, Christianson v. Colt Industries Operating Corp.: The Application of Federal Question Precedent to Federal Circuit Jurisdiction Decisions, 45 AM. U. L. REV. 1835, 1858-59 (1996) (arguing that it is erroneous to assume the equivalence of "arising under" in both statutes "because the phrase 'arising under' appears in both the Constitution and 28 U.S.C. § 1331, and is interpreted differently"). 136 This motivation is analogous to that driving the constitutional doubt canon, which requires statutory construction to avoid constitutional problems and thus remain harmonious with the Constitution. Like the constitutional doubt canon, harmonizing two seemingly contradictory statutes should neither make the impossible possible nor require one to infer more than necessary to solve the problem at hand. Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 Occasionally, a statute may explicitly reference other statutes, inviting analogies between the statutory contexts. 142 For example, in Royce v. Hahn, 143 the Third Circuit determined that possession of a firearm by a convicted felon is not a "crime of violence" that would trigger a federal statute 144 requiring federal prison officials to notify local authorities upon an inmate's release. 145 The notification statute refers to another statutory provision that defines "crimes of violence." 146 The court used the latter provision to determine that possession of a firearm is not a crime of violence. 147 ------------------------------------------------------------ § 275.11, 275.83 (2001). 141 World Duty Free, 94 F. Supp. 2d at 66. Although either reading would have been harmonious, to be consistent, the court needed to pick one. The court noted the public interest in "consistency and clarity in the enforcement of the laws enacted by Congress." Id. at 68. This interpretive method deviates slightly from Rabbi Ishmael's canon of shenei ketuvin ha-makhshishin zeh et zeh in that no third passage is used to resolve the contradiction. See supra pp. 1459-60. It comports more exactly, however, with Hillel's canon of inference from the relationship between two passages (katuv ekhad ushenei ketuvin). See Tosefta Sanhedrin 7:11, translated in TRACTATE SANHEDRIN, supra note 31, at 77. 142 The interpretive rule of in pari materia approves of explicit statutory analogies. See Buzbee, supra note 120, at 222; cf. Muenich v. United States, 410 F. Supp. 944, 946-47 (N.D. Ind. 1976) (finding that when one statute incorporates another statute by reference, an amendment to the incorporated statute amends the incorporating statute). 143 151 F.3d 116 (3d Cir. 1998 A statute may also analogize implicitly, presenting an opportunity to employ hekkesh. For instance, when two statutes enacted at different times are placed within the same title of the United States Code, it may be a fair inference that they are related. 148 In NBD Bank v. Bennett, 149 the Seventh Circuit relied on such an inference to permit banks in towns of fewer than 5000 inhabitants to sell insurance to people living elsewhere. 150 The statutory provision at issue allowed banks in such towns to be agents for the sale of insurance. 151 The court reached its conclusion by looking to the interpretation of another banking provision 152 in the same title. 153 The Supreme Court had interpreted this other provision based on the location of the bank, rather than on the residence of its customers. 154 Therefore, the Seventh Circuit imparted a similar interpretation to the statute before it. 155 This section discusses the four implications introduced in section III.B and a fifth one relevant to the American statutory context. 1. More Interpretive Information. -If interpreters look at enacted statutes as a unit, they have more material with which to answer interpretive questions. 156 Extrastatutory sources are needed to fill gaps, and intertextual data is better for this purpose than are other sources. 157 Therefore, more intertextual data is helpful in the American statutory interpretive context. - ----------------------------------------------------------- 3. Ignorance of Reality. -Intertextual readings ignore the reality that congressional statutes are enacted under varying social and historical conditions, and by different coalitions within any one Congress. 160 However, looking to the intent of a statute's sponsors is no more realistic. All statutory interpretation, except in the case of unambiguous text, requires the use of fictions. Nevertheless, some fictions are better than others, and it is preferable to look to majoritarian statutory text when adopting interpretive fictions than to look to unmajoritarian texts. 161 4. Implausible Interpretations. -Intertextual readings can lead to awkward, unrealistic interpretations in both the American statutory context and the rabbinic context. 162 For -------------------------------------------------------------158 Cf. W. Va. Univ. Hosps., Inc. v. Casey, 499 U.S. 83, 100-01 (1991) ("Where a statutory term . . . is ambiguous, we construe it to contain that permissible meaning which fits most logically and comfortably into the body of both previously and subsequently enacted law . . . not because that . . . meaning is what the lawmakers must have had in mind . . . , but because it is our role to make sense . . . out of the corpus juris." (citation omitted)). Justice Scalia notes the practical importance of consistency in contemporary times: [Professor Glendon] makes the point that it is difficult to maintain and apply a coherent theory of statutory interpretation when dealing with statutes that are themselves incoherent . . . . That is unquestionably true. I would add, however, that what has been rendered more difficult has also been rendered more important. The more episodic and oblivious of adjacent law modern legislation becomes, the more crucial is the judicial function of making sense out of the whole . . . . Antonin Scalia, Response, in A MATTER OF INTERPRETATION,supra note 99,at 129,supra note 113,at 338, Buzbee, supra note 120, at 174; see United States v. Monia, 317 U.S. 424, 444 (1943) (Frankfurter, J., dissenting) ("If a single draftsman had drafted each of these provisions in all seventeen statutes, there might be some reason for believing that the difference in language reflected a difference in meaning."). 161 Statutory interpretation is about finding the most accurate meaning within the limits of the Constitution and its structure. The interpretive endeavor in the statutory context may be quite different from other interpretive ventures -such as interpreting literature -because the Constitution does not similarly constrain. In other situations, interpreters may want to use context and background of all sorts to derive meaning. 162 Cf. Buzbee, supra note 120, at 176 (arguing that intertextual interpretation "gives judges a Herculean interpretive task of making sense of the law as a whole, Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 [Vol. 115:1456 this reason, interpreters should limit their use of intertextual canons and standards to situations that do not make the impossible possible or infer more than necessary. 163 It is important to establish an order for employing each standard or canon, leaving the interpretive approaches that typically produce more awkward results for use as a last resort, if at all. 164 5. Evolution of Legal Meaning. -Under an intertextual interpretive theory, statutory ambiguities may be resolved differently depending on the set of statutes in existence at a particular time. Thus, legal meaning may change by virtue of subsequently enacted or repealed statutes. 165 Intertextual interpretation may ultimately ensure some dynamic interpretation, giving statutes "a long, useful life." 166 As in the rabbinic context, an intertextual interpretive stance is useful to divine meaning when a statute is unclear. The intertextual stance is firmly grounded in a respect for separation of powers, the process of legislation, majoritarianism, and integrity. There are shortcomings to the intertextual approach, namely the fictions that are required to employ it and the awkward interpretations that may result from unbounded intertextual reasoning. Intertextual fiction, how-------------------------------------------------------------and may free them to engage in just the kind of unpredictable and unprincipled ends-oriented interpretation so vehemently criticized by advocates of textualist methods of interpretation"). 163 See supra note 136. There may be no way to define objectively how to limit awkward interpretations, but one can define systematic ways by prioritizing the intertextual rules or by limiting their use to specific reasonable explanations. 164 A system of prioritization would also respond to the frequent criticism of interpretive canons that "when existing canons conflict with each other they fail to offer much guidance." Breyer, supra note 103, at 869. 165 Professor Dworkin describes how intertextual readings account for change: The argument from textual integrity will also be sensitive to time because it will take account of other decisions that Congress and the courts have made in the meantime; if shifts in public opinion or economic or [substantive] circumstance have been great, those intervening political decisions will have been made in a very different spirit, so an interpretation embracing them and the act will likely be different from an interpretation required to fit the act alone. DWORKIN, supra note 113, at 349-50. 166 Mashaw, supra note 128, at 836; see id. ("[T]he exclusion of legislative history is more likely to increase the flexibility of statutes than to render them static or rigid. After all, inquiry is directed necessarily away from pre-statutory history and toward later text including . . . later statutes."). Professor Eskridge defends dynamic statutory interpretation as a necessary component of any reasonable theory of statutory interpretation. ESKRIDGE, supra note 93, at 9-11. Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 LOOKING TO STATUTORY INTERTEXT 1483 ever, is preferable to other interpretive fictions, and it can be circumscribed to avoid awkwardness. In the end, intertextual interpretation may breathe life into old statutes by allowing for evolution in legal meaning. 1 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES: HA-MISHPAT HA-IVRI (Bernard Auerbach & Melvin J. Sykes trans., 1994).3 Although the term "Torah" may also refer to the entire contents of the Hebrew Bible -the five books of Moses and the writings of the prophets and the scribesor more generally to all the teachings of Jewish law, this Note uses the term to refer only to the five books of Moses.4 Deuteronomy 31:9; 1 ELON, supra note 2, at 192 n.7, 193, 233. 5 See generally Robert M. Cover, The SupremeCourt, 1982 Term-Foreword: Nomos and Narrative, 97 HARV. L.REV. 4 (1983) (describing the interaction between narrative and norm-building in Judaism and as an ideal).6 E.g., MISHNAH, Aboth 1:1, translated in THE MISHNAH 446 (Herbert Danby Genesis Rabbah 8:2, translated in 1 GENESIS RABBAH75-76 (Jacob Neusner trans., 1985) ("Since a day, so far as [God] . . . is concerned, is a thousand years, as it is said, 'For a thousand years in your sight is like a day when it is passed.'" (quoting Psalms 90:4)). KUGEL, supra note 10, at 67-71 (noting difficulties with this reconciliation, however). Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 99 See Laurence H. Tribe, Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348

B. The Canons of Biblical Interpretation

61 Deuteronomy 24:2 (stating that when a woman is divorced, she may become betrothed to another man).

68 [Vol. 115:1456 the canons as either textual or intertextual is useful to the extent that the assumptions of authorial unity and textual perfection give license to use intertextual canons. 70

B. Implications of Sanctioning Intertextual Reasoning

There are potential advantages and disadvantages to intertextual reasoning across a work that may, in reality, have multiple authors or editors or may not be intended by its creators to be consistent.

71 See REED DICKERSON, THE INTERPRETATION AND APPLICATION OF STATUTES 22 (1975).

IV. IMPORTING FROM RABBINIC BIBLICAL EXEGESIS INTO AMERICAN STATUTORY INTERPRETATION

B. The Basis for Using Statutory Intertext

This section discusses the four implications introduced in section III.B and a fifth one relevant to the American statutory context.

Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348

1 MENACHEM ELON, JEWISH LAW: HISTORY, SOURCES, PRINCIPLES: HA-MISHPAT HA-IVRI

KUGEL, supra note 10, at 67-71 (noting difficulties with this reconciliation, however).

99 See Laurence H. Tribe, Electronic copy available at: https://ssrn.com/abstract=1271348 Electronic copy available at: https://ssrn.com/abstract=1271348