Principles of Statutory Construction
475
These general principles of interpretation articulated by Story and derived in part from ancient law, Roman law, and English law, have been
acknowledged as binding on courts since the earliest days of the American republic. Throughout American history, judges have subscribed to
the ancient maxim of Sir Francis Bacon, who admonished the judges of
England ‘‘to remember that their office is jus dicere, and not jus dare—to
interpret law, and not to make law, or give law.’’ This fundamental principle, as we noted earlier, is nowhere stated in the Constitution. Like
federalism and separation of powers, it is nevertheless an implicit rule
of the Constitution. It defines the judicial function, governs the behavior of judges, and is the essence of what is known as the doctrine of judicial self-restraint.
Because this rule is self-imposed and is not explicitly mandated by the
Constitution, observance of it has not always been consistent. Judges, after all, are human beings, subject to the same temptations of power as
any legislator or executive. Those who yield to such temptations are said
to be judicial activists—judges who read their own bias into a law or the
Constitution, in disregard of the lawmakers’ or Framers’ intent, in order
to reach a decision they personally favor, or believe is convenient. The
argument has even been made that judges have a special duty to promote
‘‘moral values’’ or that all citizens are entitled to certain undefined, philosophically based ‘‘natural rights,’’ and that judges are therefore at liberty
to render any interpretation they please in order to secure those ‘‘values’’
or ‘‘rights.’’ Such practices may, however, produce judicial decisions that
are in conflict with the Constitution. A judge, wrote Story in his Commentaries, should not ‘‘enlarge the construction of a given power beyond the
fair scope of its terms merely because the restriction is inconvenient, impolitic, or even mischievous. If it be mischievous, the power of redressing
the evil lies with the people by an exercise of the power of amendment.
If they do not choose to apply the remedy, it may fairly be presumed that
the mischief is less than what would arise from a further extension of the
power, or that it is the least of two evils.’’ Moreover, said Story, ‘‘it should
not be lost sight of that the government of the United States is one of limited and enumerated powers, and that a departure from the true import
and sense of its powers is pro tanto the establishment of a new constitution. It is doing for the people what they have not chosen to do for them-