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Minnesota Law Review




Minn. L. Rev.

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This Article challenges the modern statutory interpretation of criminal laws. In doing so, it makes two distinct, but related contributions. First, it demonstrates that courts historically played a significantly more active role in interpreting criminal laws than they currently play. In particular, courts routinely interpreted statutes to reach no further than the text or the purpose, and they treated broadly written laws as ambiguous and in need of narrowing constructions. Put simply, courts used their interpretive powers to deliberately favor criminal defendants and constrain the criminal law. Second, it explains how a more active judiciary would combat some of the pathologies of the modern criminal justice system and protect important constitutional principles. Specifically, if modern courts were to use the historic rules of constraint, they would better protect important constitutional principles such as the separation of powers and democratic accountability. In making these points, the Article does not claim that courts are obliged to take a more active role in interpreting statutes; rather, it claims that courts are allowed to take this more active role and that there are good reasons to do so. In other words, while we do not argue that judges must use their interpretive powers to narrowly construe criminal statutes, we argue that they should.

The Article proceeds in three parts. Part I begins by providing an overview of the dominant theories of statutory interpretation, both of which are premised on the idea that courts should act as faithful agents of the legislature when interpreting statutes. It then explains how, with only small exceptions that have little practical consequence, those theories of interpretation treat criminal laws the same as non-criminal laws. Part II demonstrates how these modern theories depart from historical practice in failing to distinguish between criminal and other statutes and by assuming that judges’ main interpretive task is to carry out the will of the legislature. It traces the development of the rules of statutory construction that judges used to constrain the reach of criminal laws, and it describes how these rules were widely accepted by early state and federal courts. Part III explains how, in abandoning their role as an institution that independently constrains the criminal law, modern courts have countenanced a disastrous expansion of the criminal justice system. If courts were to once again embrace their role as an institutional constraint on the scope of criminal law, rather than merely seeking to effectuate legislative will by enforcing the purpose or the text of a criminal statute, they could help curtail some of that expansion and better protect important constitutional values, such as the separation of powers and democratic accountability.

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