47 Colum. L. Rev. 527 (1947)
Some Reflections on the Reading of Statutes

handle is hein.journals/clr47 and id is 605 raw text is: COLUMBIA LAW                                     REVIEW
Vol. 47                       MAY, 1947                          No. 4
SOME REFLECTIONS ON THE READING OF STATUTES*
FELIX FRANKFURTER'
A single volume of 320 octavo pages contains all the laws passed by Con-
gress during its first five years, when'measures were devised for getting the
new government under way; 26 acts were passed in the 1789 session, 66 in
1790, 94 in 1791, 38 in 1792, 63 in 1793. For the single session of the 70th Con-
gress, to take a pre-depression period, there are 993 enactments in a monstrous
volume of 1014 pages-quarto not octavo-with a comparable range of subject
matter. Do you wonder that one for whom the Statutes at Large constitute his
staple reading should have sympathy, at least in his moments of baying at' the
moon, with the touching Congressman who not so long ago proposed a Com-
mission on Centralization to report whether the Government has departed
from the concept of the founding fathers and what steps should be taken to
restore the Government to its original purposes and sphere of activity ? Inevi-
tably the work of the Supreme Court reflects the great shift in the center of
gravity of law-making. Broadly speaking, the number of cases disposed of by
opinions has not changed from term to term. But even as late as 1875 more
than 40%o of the controversies before the Court were common-law litigation,
fifty years later only 5%, while today cases not resting on statutes are reduced
almost to zero. It is therefore accurate to say that courts have ceased to be the
primary makers of law in the sense in which they legislated the common law.
It is certainly true of the Supreme Court that almost every case has a statute at
its heart or close to it.
This does not mean that every case before the Court involves questions of
statutory construction. If only literary perversity or jaundiced partisanship can
sponsor a particular rendering of a statute there is no problem. When we talk
of statutory construction we have in mind cases in which there is a fair con-
test between two readings, neither of which comes without respectable title
* Sixth Annual Benjamin N. Cardozo Lecture delivered before the Association of
the Bar of the City of New York, March 18, 1947. This address is reprinted with per-
mission from 2 THE REcoRD OF THE Ass'N OF THE BAR OF THE CITY OF NEv YoRx No. 6
(1947).
1. It gives me pleasure to make acknowledgment to my learned friends, Philip El-
man, Louis Henkin and Philip Kurland, Esqs. They have no responsibility for what I
have said; they are merely subjected to my gratitude.

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