If a legislature passes a law that says one thing, but the legislature really meant something else, how should the law be interpreted? According to the plain language of the law? Or according to the intent of the legislature, even if it contradicts the statute’s plain language?
Adherents of “intentionalism” claim that the only legitimate interpretation of words is according to what the speaker intended. Any other interpretation is a rewriting of the text and can’t be considered a legitimate interpretation. Presumably, intentionalists interpreting a law would say that the intent of the laws’ ratifiers (i.e. the legislature) is always considered paramount.
But when it comes to interpreting statutes, a strict reverence for the intent of the legislature is not compatible with the rule of law. This is Justice Scalia’s view as well as mine.
Consider this example.
Assume you make $50,000 a year. The legislature passes a law imposing a hefty tax on “people making over $100,000 per year.” Since the law does not apply to you, by its plain terms, you do not pay the tax.
One day there is a knock at your door. It is a policeman, who places you in handcuffs for failure to pay the tax.
“But it doesn’t apply to me!” you say.
“Tell it to the judge,” says the cop.
So you do, resulting in the following dialogue.
The judge: “It is true that the plain language of the statute says that the tax applies only to people making over $100,000 per year. However, I have irrefutable evidence that the legislature intended to impose the tax on ‘people making over $10,000 per year.’ The legislative debates clearly show this.”
You: “But I didn’t listen to those debates. I’m too busy to watch C-SPAN constantly. All I did was read the law — and the law says it applies only to people making over $100,000 per year. I don’t make that much. It’s not fair to hold me responsible for paying the tax when the plain language of the statute doesn’t apply to me. That’s not reasonable. It’s not fair!”
The judge: “But you aren’t the speaker. In matters of interpretation, the intent of the speaker must be privileged. The only proper interpretation appeals to the speaker’s intent — or in this case, the ratifiers of the law, meaning the legislature. You are merely the audience, and we cannot privilege your intent. If I were to interpret the law according to your interpretation, I would be privileging the audience’s reasonable interpretation. That’s nothing but creative writing.”
You: “Interpreting $100,000 to mean $100,000 is creative writing?”
“Judge: Correct. I must interpret $100,000 to mean $10,000. It is the only legitimate interpretation. Bailiff, take this man away.”
This is why Justice Scalia argues that “legislative intent” is an improper focus for judges. For years I have owned a copy of “A Matter of Interpretation,” which is an essay by Justice Scalia on interpretation of language. Various scholars (such as Laurence Tribe) respond with commentary, and Justice Scalia responds to their points.
Justice Scalia famously rejects the concept of combing through legislative history for clues to legislative intent. This is his philosophy:
The text is the law, and it is the text that must be observed. I agree with Justice Holmes’s remark, quoted approvingly by Justice Frankfurter in his article on the construction of statutes: “Only a day or two ago — when counsel talked of the intention of a legislature, I was indiscreet enough to say I don’t care what their intention was. I only want to know what the words mean.” And I agree with Justice Holmes’s other remark, quoted approvingly by Justice Jackson: “We do not inquire what the legislature meant; we ask only what the statute means.”
These concepts come up in real-world situations, and Justice Scalia cited one. Congress once passed a law imposing a higher prison term on a defendant who “uses a firearm” in a drug trafficking crime. The defendant sought to purchase a large quantity of cocaine (which he presumably later intended to resell), and hoped to pay for the cocaine by bartering an unloaded firearm, which he showed to the drug seller. The Supreme Court said that the defendant “used a firearm” by showing the unloaded firearm to the drug seller. Justice Scalia dissented, saying that the plain meaning of “uses” could not possibly include the defendant’s actions.
It didn’t matter to Justice Scalia what Congress subjectively intended. The word “uses” could not be reasonably be interpreted by citizens (the audience) to include the defendant’s actions. Justice Scalia argues that textualism, with its inherent formalism, is necessary for the rule of law. “It is what makes government a government of laws and not of men.”
I agree with Justice Scalia, when it comes to statutory interpretation. The rule of law cannot require citizens to be governed by the subjective intentions of the men passing the laws, unless those subjective intentions are communicated to citizens in plain language that they can reasonably understand.
This view has broader implications for interpretation of language generally. Words mean things, and the plain meaning of language is not irrelevant. Pure intentionalists hold that words are imbued with meaning purely as a function of what the speaker intends and nothing more. This ignores the fact that effective communication involves two sides. Yes, there is value to appealing to the speaker’s intent. But if communication is to be a two-way street, there is also significance to be attached to how a reasonable audience, which is trying to ascertain the speaker’s intent, interprets the speaker’s plain language.
Otherwise, you could find yourself arrested for violating laws that, by their own plain terms, don’t even apply to you.
A NOTE ABOUT COMMENTS: Because threads about language have a strange tendency to degenerate into name-calling, this thread will have a special rule for comments. Comments are expected to be strictly about ideas, with absolutely no personal comments whatsoever. I am going to be very, very strict about enforcing this. Comments that do not follow this rule will be summarily deleted. Comments that blatantly violate the rule may earn the offending commenter a time-out or a ban.
I am eager to discuss the ideas discussed in this post, but I will not respond to arguments (made here or anywhere else) that contain the slightest hint of personal attack or mockery, whether directed at me or anyone else. “Justice Scalia (or Justice Stevens) is the idiot who decided Case x” is a good example of a comment that will be deleted.
UPDATE: Given my restrictive rules, I will even accept comments from banned commenters, as long as they follow the rules I have set forth. No personal digs, no matter how small.