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Extracted Text (OCR)
4 JAM v. INTERNATIONAL FINANCE CORP.
BREYER, J., dissenting
. as,” provide no greater help. The majority finds sup-
port for its dynamic interpretation in the Civil Rights Act
of 1866, which gives all citizens the “same right” to make
and enforce contracts and to buy and sell property “as is
enjoyed by white citizens.” 42 U.S.C. §§1981(a), 1982
(emphasis added). But it is purpose, not words, that read-
ily resolves any temporal linguistic ambiguity in that
statute. The Act’s objective, like that of the Fourteenth
Amendment itself, was a Nation that treated its citizens
equally. Its purpose—revealed by its title, historical
context, and other language in the statute—was “to guar-
antee the then newly freed slaves the same legal rights
that other citizens enjoy.” CBOCS West, Inc. v. Hum-
phries, 553 U.S. 442, 448 (2008). Given this purpose, its
dynamic nature is obvious.
Similarly, judges interpreting the words “same ... as”
have long resolved ambiguity not by looking at the words
alone, but by examining the statute’s purpose as well.
Compare, e.g., Kugler’s Appeal, 55 Pa. 128, 128-125 (1867)
(adopting a dynamic interpretation of “same as” statute in
light of “plain” and “manifest” statutory purpose); and
Gaston v. Lamkin, 115 Mo. 20, 34, 21 S.W. 1100, 1104
(1898) (adopting a dynamic interpretation of “same as”
election statute given the legislature’s intent to achieve
“simplicity and uniformity in the conduct of elections”),
with O'Flynn v. East Rochester, 292 N.Y. 156, 162, 54
N. E. 2d 348, 346 (1944) (adopting a static interpretation
of “same as” statute given that the legislature “did not
contemplate” that subsequent changes to a referenced
statute would apply (interpreting N. Y. Gen. Mun. Law
Ann. §3860(5) (West 1984))). There is no hard-and-fast rule
that the statutory words “as is” or the statutory words
“same as’ require applying the law as it stands today.
The majority wrongly believes that it can solve the
temporal problem by bringing statutory canons into play.
It relies on what it calls the “reference canon.” That canon,
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