The Amended Statute
We live in a republic of amended statutes. In each Congress, our laws are amended tens of thousands of times. Individual statutes make amendments that number in the thousands. As a result, the amended statute has become the central democratic text of our age—a remarkable development for a type of document unknown at the Founding. Yet the amended statute has been relegated to an afterthought in legal theory. This is incredible neglect for an essential source of modern law—one that anchors innumerable rights in U.S. society.
This Article demonstrates that, instead, the amended statute belongs at the center of public law. To that end, it undertakes three projects with respect to the amended statute: documenting, theorizing, and interpreting.
It begins with documenting. Through a study consisting of over seven hundred searches of the Statutes at Large, it identifies—for the first time—the nearly half-million amendments made to federal statutes since the Founding. In so doing, it tells the story of statutory amendments in U.S. law. It is a story of remarkable transformation: from a statutory corpus with no amendments through the 1830s to one that now undergoes over eight thousand amendments each year. Contemporary statutes, it reveals, typically are amended statutes.
Next, the Article theorizes amended statutory law. Despite its neglect in current legal theory, the amended statute was transformative. It created a new idea of the “statute” in the United States—introducing a new document, and one with different traits than the traditional statute. The Article theorizes the key changes this introduced into: (1) legislation, (2) the legislative process, (3) the institution of the legislature, and (4) statutory interpretation. These changes include enabling the rise of textualism, making methodological originalism impossible in interpretation, and divorcing the drafter from the legislator. The Article chronicles these many theoretical insights.
Finally, the Article asks how to interpret amended statutory law. Revisiting two recent classics of statutory interpretation, Niz-Chavez v. Garland and Van Buren v. United States, it uncovers the unknown amendatory stories behind these landmark cases. In so doing, it shows the contemporary Supreme Court’s troubling inability to locate democratic decisions beneath the amended statute. And it models a competing method of interpretation—one more appropriate for a republic of amended statutes.