Deferentialism and Adjudication
Deferentialism and Adjudication
The author argues that Deferentialism offers a distinctive form of judicial restraint. In normal adjudication, the deferentialist judge seeks to apply the law made by the legislature, the content of which is fixed, not by the linguistic meaning of the legal text, and not by the intended downstream consequences of the enactment, but by what the legislators said or stipulated when they laid it down. The author suggests that we should identify this stipulated content with the content of certain intentions that an informed interpreter would impute to the authors of the law. The framers and ratifiers of (say) the 14th amendment may have any number of long term goals, and any number of beliefs about the consequences of their legislative act. But according to the deferentialist, these real intentions and expectations are irrelevant. If we want to know the legal content of the Due Process Clause, we should ask: What would an interpreter, apprised of the relevant history and context, take the framers and ratifiers to have intended the legal effect of the provision to be? The author’s view is that the deferentialist should regard this as a hard question for which there is no determinately correct answer.
Keywords: deferentialism, legal interpretation, constitutional interpretation, semantics, pragmatics, law and language, originalism, Due Process
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