Patterico's Pontifications

4/3/2010

Why “Intentionalism” Is Not Always Compatible with the Rule of Law

Filed under: General — Patterico @ 2:34 pm

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.

106 Responses to “Why “Intentionalism” Is Not Always Compatible with the Rule of Law”

  1. Consider this an experiment for whether commentary dealing with ideas and no personal attacks can work. If it does, I may get stricter about the policy.

    Patterico (c218bd)

  2. I’ve been waiting for this question to come up, in regards to the 3,000-page “health care” bill which NEVER WAS posted for five days for public viewing, as promised by President Obama.

    This parody of legislation was cobbled together in secret, was not extensively debated, and much of it was unveiled at the last minute before the House took its barely-affirmative vote. Many members (dare I say most?) had not read the whole thing, and I’ll venture that nearly no one but the drafters understood it. And of the drafters, each may have understood a few sections, but none the whole thing.

    So it seems that enforcement of this reeking horror will depend almost entirely on the ‘intent’ of its drafters. Am I safe in predicting that it will waste more hours in hearings, Court challenges and general Congressional hot air than any preceding bill enacted by Congress and signed by any President?

    Insufficiently Sensitive (8906ed)

  3. Obama’s health care bill and the issue of children with preexisting medical conditions is a good example of the issue you raise. The Democrats claim that it was their intent to force insurers to issue policies to children with preexisting medical conditions now, rather than in 2014 when other similar provisions of the bill kicked in. The bill itself, however, was not written to provide for immediate mandatory guaranteed issue on the part of insurers, leading to accusations of bad faith on the part of the left toward insurers over what was actually a legislative drafting error.

    daleyrocks (718861)

  4. I agree that they should not interpret intent, just the letter of the law passed. When you start down the other road too many diffeerent interpretations could come into play. That’s a dangerous row to hoe.

    TGSG (1ee953)

  5. daleyrocks,

    That is a great point, and may warrant a follow-up post.

    Patterico (c218bd)

  6. What about cases in which the commonly understood meaning of the word has changed?

    Take for instance the word “welfare”. Many people today are claiming that the General Welfare clause authorizes Obamacare, but it is clear that the Framers used the word “welfare” in a very different manner than the word is used today.

    gahrie (ed7a50)

  7. gahrie,

    Justice Scalia speaks of the “original understanding” of the words to be interpreted. He says — and I agree — that interpretation should not be affected by the changing of the meaning of words over time.

    Patterico (c218bd)

  8. Legislative intent only comes into it when the plain language of the law is ambiguous. Plain language of the statute always trumps. Judges do not go back and figure out what the law MEANT to say, they interpret what it says.

    Only when the language is ambiguous will the courts attempt to divine intention through legislative history/records.

    And the language isn’t as ambiguous as a layperson might imagine a law could be. There are conventions in the law for meaning.
    There is plenty of law to establish: what words said a certain way or order mean.

    And Gahrie – the word means what the law says it means – but the precedents will go back to the time of original use.
    That means the history of the use of the word matters. Plain language doesn’t mean what some guy off the street thinks it means. It means what it means IN THE LAW.

    SarahW (af7312)

  9. those who lust for a more powerful state at the expense of indidual rights have always used any ployto advance thier cause.if the language is not there they perceive emmanations and penumbras.todays headlines focus on militias as threats rather than as lines of national defense. the mentally unstable are sought out to bolster thier argument though they a minor threat.

    clyde (516c47)

  10. Scalia’s an interesting theory, but experience is against it. It has been maybe half a century that common law crimes were abolished and now every element of the offense must be set out. Before that, for maybe a thousand years, “Murder is punishable by death” was considered enough notice and you had better had read all the court decisions on the definition of murder because “ignorance of the law is no excuse”. And don’t don’t set the libertarians off on “our stare decisis constitution”.

    As for the specific example in the post, I think the defendant got enough notice that what he was doing was a crime. Guns and drugs? No!

    BTW, I went to the grocery store today to stock up for Easter and I used money to get the groceries. I suppose I could have told the grocery store owner “Sir, I want these groceries but I have no money. All I have in this world is this gun”. 😉

    nk (db4a41)

  11. Patterico-

    I am a bit confused as to the example cited in the overall context of the issue. Perhaps what I mean by “intentionalism” is more akin to what you call “textualism“. If Scalia claims the instance cited (bartering with an unloaded handgun) was not breaking the law as specified, I see that as “intentionalism”.

    Was there a drug crime committed? Yes. Was there a gun involved? Yes. Does the law say there is a stiffer penalty for a drug crime committed with a handgun? Yes. End of story.

    But, the intent of the law was not concerning “using a firearm” as a method of bartering, but as the threat of lethal violence in the committing of the crime.

    Now, I see from your point of view that at issue is not the “intent” of the legislators, but the straight forward meaning of the text as it would be understood by the average user of American English.

    From previous threads on this I believe I agree with you 100%, but the way we communicate it is different. (Ironic, is it not).

    Included in what I think of as “intentionalism” is the idea that whatever the “separation of Church and State” means as communicated in the Bill of Rights, it allowed for religious services to be conducted within the capital building itself, and allowed for ceasing work on the Constitution for the explicit reason of stopping to pray.

    I heard a quote to the effect that if you’re trusting in the legal language of a contract to keep business honest you’re in trouble. A contract is helpful in making sure there is agreement on details, but the contract has no more power than a handshake to keep the business dealing honest.

    Perhaps the real issue here is similar, honest people of good intent will readily agree what was intended by the text of a law, while those with selfish and dishonest motives will find ways of obfuscating the issue.

    Of course, this is the idea of a member (hopefully) of the reasonable audience.

    MD in Philly (59a3ad)

  12. It disturbs me that implied “intent” can so easily change according to the intentions of whomever is setting the tone for the politics of the time. for instance, the law that allows abortion for the mother’s safety and emotional health is used extensively to make a show of both restricting and allowing the procedure according to the audience being addressed. What one group perceives as a mother’s emotional health and what another perceives as the same are worlds apart.

    I believe Music and not law is meant to be interpreted. I can pretty accurately identify most of the important pianists by their sound and unique touch. I know this example runs far afield but…I do not want to try to identify the intent of a law by who is playing it.

    I am not writing law so please feel free to divine my intent from my inexact language and metaphor here.

    No, English isn’t my first language…how could you tell? ;7}
    Thank you for your patience

    sillyblindharper (1dcf4c)

  13. Or, to quote someone much wiser:

    Words have real meanings

    sillyblindharper (1dcf4c)

  14. Legislative intent only comes into it when the plain language of the law is ambiguous. Plain language of the statute always trumps. Judges do not go back and figure out what the law MEANT to say, they interpret what it says.

    SarahW:

    This is indeed how the law works. However, intentionalists would always privilege intent over “plain language” because for them, language has meaning only to the extent that it is infused with meaning by the intent of the utterer.

    My main goal in this post is to show one real-life situation (statutory interpretation) where such a strict adherence to “intentionalism” leads to an interpretation that most fair-minded people would conclude is the wrong interpretation.

    Patterico (c218bd)

  15. I’m not a lawyer, but it seems the entire health care bill is a mere shell that contains a lot of room for wiggly interpretations of intent. The stated intent of the law is that the Secretary of the HHS and various boards and commissions are left with the job of creating that which will fill that shell. This will lead IMHO to years of litigation and chaos and very little health care reform. It’s inevitable! Every activist group will seek judicial clarification of what the intent is. It thus creates a revolving credit account of power in the federal government as they constantly refine what their present intent is.

    BTW I always wondered why liberals believe in a living constitution in every case except the Second Amendment. That must be construed from a textual standpoint. :)

    Patricia (fa8e06)

  16. Was there a drug crime committed? Yes. Was there a gun involved? Yes. Does the law say there is a stiffer penalty for a drug crime committed with a handgun? Yes. End of story.

    No, it says there is a stiffer penalty for someone who “uses” a handgun. Scalia’s view is that the term “uses a firearm” plainly does not include “shows an loaded firearm to the seller so that the seller can see if he wants to accept the firearm in exchange for drugs.”

    No matter what Congress subjectively intended.

    As Scalia puts it in the book:

    The phrase “uses a gun” fairly connoted use of a gun for what guns are normally used for, that is, as a weapon. As I put the point in my dissent, when you ask someone, “Do you use a cane?” you are not inquiring whether he has hung his grandfather’s antique cane as a decoration in the hallway.

    Makes sense, right?

    Patterico (c218bd)

  17. I think the issue of the passage of time and the changes in meaning of words is important. “Militia” is a great example. “A well regulated militia” meant something entirely different in 1824 when Jackson should have been elected by the militia, which meant all the able men between the ages of 17 and 35. In 1828, the same segment of the population did elect him. The original definition in US law excluded blacks and women, blacks maybe on purpose because of fears of slave uprisings. The Supreme Court seems to be concluding that the second amendment should be interpreted by “original intent.”

    How does that square with your argument, Patrick ?

    Mike K (2cf494)

  18. “My main goal in this post is to show one real-life situation (statutory interpretation) where such a strict adherence to “intentionalism” leads to an interpretation that most fair-minded people would conclude is the wrong interpretation.”

    I think in the law one big difference is the formal procedures that must be followed in order for something to become law. So you have to have to pass both houses and be signed by the president. Whose “intent” is followed?

    imdw (c9a2fa)

  19. In any case, Aeschylus’s Oresteia dealt with strict interpretation of punitive laws 2,500 years ago. And we’re still talking about it.

    “Ah, you young gods who are trampling on established usage”. 😉

    nk (db4a41)

  20. BTW, I went to the grocery store today to stock up for Easter and I used money to get the groceries. I suppose I could have told the grocery store owner “Sir, I want these groceries but I have no money. All I have in this world is this gun”.

    If the context shows that the gun is being used to cause fear in a robbery, Scalia and I would agree it has been “used.”

    But if the drug seller and purchaser were on the phone beforehand, and agreed to trade a gun for drugs, and then meet in person, and the buyer gives the unloaded firearm to the seller in a nonthreatening manner and says “here is that gun we were talking about having you take in exchange for the drugs” then that would be a very different context from your supermarket example.

    In that case, showing the gun is clearly not “using” it as a weapon to cause fear.

    At the supermarket, showing the gun would likely be seen as part of an effort to intimidate. That is “using” the gun.

    Context.

    See the difference?

    Patterico (c218bd)

  21. Now, we’re headed into absurdity. If by “bite me, mofo,” I mean to ask somebody what they want from Santa, I should not be surprised to find myself with a mouthful of bloody chicklets.

    Dan Collins (6e9303)

  22. Patterico, the problem with intentionalism is that it seems to be used as a justification for current political fashions. In the gun and cocaine case, I would bet quite a bit of money the rationale was used to add more prison time to the drug dealer.

    This is the danger of that approach. I don’t have the actual quote, but didn’t a certain SCOTUS decision invoke a “emanation from the brooding pnumbra of the Bill of the Rights”? The take home lesson there, misquotation or not, is how a judge can use her or his current ideology to decide law.

    And the problem with that, of course, is that ideologies change.

    Which how we get to so much hypocrisy!

    Eric Blair (c8876d)

  23. Scalia makes valid criticisms of the use of legislative history. Committee reports (which are not themselves law) can be written with the intent to skew later interpretation of the statute. And what exactly is the “intent” of, say 253 individual House Members, and 64 Senators, who voted in favor of a particular bill? Is there one “intent,” or 317?

    That said, I don’t think your hypo proves his point. In fact, it’s a bit of a straw man. I doubt there’s anyone remotely in the mainstream of American legal thought would support the actions of the judge in your hypo, or who would say that “the plain meaning of language is … irrelevant.” Do you have any examples of people who actually profess to believe that? Supporters of the use of legislative history do not believe “intent” should trump the plain language of statutes. Rather, they say something like this: “Start with the statute. If the language of statute is ambiguous, that’s the end of the matter. However, if it’s ambiguous, then we can look to legislative history to figure out the true intent behind the statute.” See, e.g., Caminetti v. US, 242 U. S. 470 (1917).

    In your hypo, “people making over $100,000 per year” is unambiguous. There’s no justification for looking to legislative history or intent; everyone knows exactly what “people making over $100,000 per year” means. The gun case you mention, however, is different. There, “use” is ambiguous. The common definition of “using” a gun is to shoot it, or at least brandish it, with the threat that it may be fired. A somewhat less plausible definition of “using” a gun would be what the defendant did there: trade it for something else. In such a case, I don’t think it’s unreasonable to look to legislative intent to see what the statute was truly aimed at. (No pun intended.)

    Ben Sheffner (2d68f4)

  24. That’s what I meant! What Eric Blair said…

    Thank you, Sir, much more elegantly put.

    sillyblindharper (1dcf4c)

  25. Ok. Here is a good example. This is the relevant part of Illinois’s DUI statute:

    (a) A person shall not drive or be in actual physical control of any vehicle within this State while:
    (1) the alcohol concentration in the person’s blood or breath is 0.08 or more based on the definition of blood and breath units in Section 11‑501.2; [or]

    (2) under the influence of alcohol;

    I am sitting in my kitchen with my second glass of Pinot Noir (La Crema, not at all a bad California wine but look out for corking in the 2007 vintage). My car is in the garage with the door open, in my direct sight, and my car keys are within reach on the kitchen counter. I could be guilty of DUI under a strict interpretation of the statute.

    Not trying to be a wiseass about it. I think that both legislatures and judges try to make it easy to obtain convictions in case which they they think, at the time, involve dangers to society which require extreme measures.

    nk (db4a41)

  26. Well, my lawyer better make the dumbass judge produce his/her “irrefutable evidence”, and press as to why if this was their intent, the legislature did not follow its usual practice of amending errors

    Intentionalism of this sort would completely screw up contract law.

    “About your bill; I have irrefutable evidence that I intended to write down $1,000,000 as the contract price, so thanks for the $100K but you have $900,000 balance outstanding at the interest rate of $18%. When will I be getting the check?”

    The counter would be that “Well, that’s neat, because I have irrefutable evidence that I intended for you to give me a rebate in the form of a new Lexus 450LX upon the payment of $100K plus a $900K client bonus… leaving aside the $900K for now… where’s my car?”

    Of course the contract dispute degenerates into a “he said/she said” irrefutable evidence festival.

    In your discussion a powerful judge is dictating what he/she has predetermined to be irrefutable evidence of intent. Absent the original framer, the intent has to be the written word in the language of the day it was generated.
    Anything beyond that is both journey off into the ether and an abuse of authority.
    MLK said “I have a dream”. Judges shouldn’t be allowed to dream S*** up.
    My biggest fear with Obama is that he will appoint judges who “dream s*** up”.

    Steve G (7d4c78)

  27. Now, we’re headed into absurdity. If by “bite me, mofo,” I mean to ask somebody what they want from Santa, I should not be surprised to find myself with a mouthful of bloody chicklets.

    Dan, I think you get what I am saying generally, although I think my specific point is slightly different in a subtle way.

    Let’s say some really terrible parents think it would be funny to tell their child, just before he sits on Santa’s lap: “Tell Santa ‘bite me, mofo.'” The child asks what that means, and they say: “It means I want an XBox for Christmas.” The child has no idea he is saying anything bad, so he says “bite me, mofo” to Santa — thinking he is saying something Santa will appreciate.

    That child should not expect to get a negative reaction from Santa. Intentionalists will tell you that in this context, “bite me, mofo” actually means “I want an XBox for Christmas.” And they would be right. What’s more, if Santa heard the parents give this instruction, and could tell that the child was an innocent, he would have no cause to interpret what the child said as hostile (at least coming from the child).

    By contrast, let’s say that YOU say “bite me, mofo” to a child in the presence of his parents. You really mean to ask him “What do you want for Christmas.” (Why do you choose those words if you really mean something so different? Maybe you’re subjectively intending to make some obscure and uncommunicated point about intentionalism.)

    In that case, I would argue that you can’t completely separate your intent from the fact that you know that the listeners’ reasonable reaction is going to be negative. The phrase you are using has a commonly understood meaning, and reasonable listeners will understand it that way unless you give them other cues to let them know you mean something else.

    In that case, your intent has to somehow encompass the fact that you have deliberately chosen words that a) don’t reflect what most people would understand to be your intent, and b) are chosen with the knowledge that they will reasonably be interpreted differently from your subjective intent.

    Still, intentionalists will tell you that the proper interpretation is still the one that matches the speaker’s intent. The choice of words in the second example seems to give clues to intent, but the goal is still to find the actual intent.

    The point of my post is slightly different. I mean to argue that there are actually situations where the proper interpretation is not the one that matches the speaker’s intent (or here, the ratifiers’ intent). The specific example I give is the one in the post, where the plain language of the statute precludes prosecution, but subjective intent could support it.

    Here, I am not just saying that the words provide clues to intent, but that the goal is still to find intent. Here, I am saying the proper interpretation is the one that adheres to the text and not the subjective and unexpessed intent.

    Patterico (c218bd)

  28. Let’s assume that personal speech (such as speech between family members) is almost always about intent. And public speech (such as legislative text) is almost always about how that speech is reasonably interpreted. Where is the dividing line? It would be easy to view all written communication as the latter and all spoken communication as the former, but what about the televised speech of a President or other leader?

    DRJ (daa62a)

  29. I think in terms of a jury trial. Perhaps the diciest decision a given jury must arrive at is the intention of the defendant. A crime can not be committed without such intention, right?

    Now, I can see a jury reading into the statute the intention of the folks who wrote the statute. I thought such nullification was to be frowned upon by the courts?

    Why is it then ok for judges to engage in this type of behavior?

    Ed from SFV (7f3244)

  30. Still, the law encompasses intention in a variety of ways. It makes those distinctions when it says “intentional homicide” or “unintentional manslaughter” or “malice aforethought” or “premeditation” or any such distinctions. If a law states “trespassers shall be violated” rather than “trespassers shall be prosecuted,” it is technically a law; whether it comprehends cruel and unusual punishment is another matter altogether.

    Dan Collins (6e9303)

  31. Ben Sheffner,

    Everything you say is completely correct — except when you call the post a strawman, because I think you misapprehend my target audience. Your comment actually supports the argument I am making.

    I am aiming this post at people who maintain that the only valid goal of language interpretation is to ascertain the intent of the speaker. These people maintain that there is no validity to any interpretation of language that looks to the reasonable interpretation that an audience might give to a statement. The speaker’s intent is what gives meaning to the statement, according to these people.

    If you think that no such people exist, or that the argument I set forth in the previous paragraph is a strawman, let me know, and I can provide you examples. I assure you that this argument is made with regularity in the blogosphere.

    And my point is to take issue with that premise.

    You support my point when you say:

    Scalia makes valid criticisms of the use of legislative history. Committee reports (which are not themselves law) can be written with the intent to skew later interpretation of the statute. And what exactly is the “intent” of, say 253 individual House Members, and 64 Senators, who voted in favor of a particular bill? Is there one “intent,” or 317?

    I think this is a problem for the strict intentionalists. My best guess is that they would look to the subjective intent of the majority of the ratifiers. (Of course, if you could read legislators’ minds to ascertain their ACTUAL intent as to any particular disputed provision of a complex piece of legislation, you would usually find that their intent is: “Hell if I know. My staffer wrote that. I voted the way I thought would get me re-elected.”)

    I doubt there’s anyone remotely in the mainstream of American legal thought would support the actions of the judge in your hypo, or who would say that “the plain meaning of language is … irrelevant.”

    I agree (although I think some judges will profess to see ambiguities where there are none). However, the point I am making is that intentionalists appear to assign to words only the meaning that is intended by the speaker. I agree that the mainstream of American legal thought is to the contrary, and the point of the post is to provide a hopefully compelling example of why this might be so.

    In your hypo, “people making over $100,000 per year” is unambiguous. There’s no justification for looking to legislative history or intent; everyone knows exactly what “people making over $100,000 per year” means. The gun case you mention, however, is different. There, “use” is ambiguous. The common definition of “using” a gun is to shoot it, or at least brandish it, with the threat that it may be fired. A somewhat less plausible definition of “using” a gun would be what the defendant did there: trade it for something else. In such a case, I don’t think it’s unreasonable to look to legislative intent to see what the statute was truly aimed at. (No pun intended.)

    Again, my target audience is not so much judges and lawyers as it is people who have been told that the only legitimate method for interpreting a statement is to ascertain what the speaker meant. Regardless of the extent of ambiguity in the plain language, I think you and I can agree that a pure appeal to subjective intent (without regard to the interpretation of a reasonable audience) is incompatible with the rule of law in the context of statutory interpretation.

    To lawyers this observation is completely pedestrian, and that’s why you want to get into more interesting questions having to do with more ambiguous situations. But first I want to convince my target audience that interpretation need not always appeal to the speaker’s subjective intent. If my example used to illustrate this seems obvious, that’s because I want it to, so there is little room for rational people to disagree.

    Patterico (c218bd)

  32. Consider legislative intent – During house or senate conferences, it clearly intented the new law to apply to “X” & “Y”. However during conference committee, it changed to only apply to “Y”. The only record of the exclusion of “X” is the written text. – Are we to treat the new law as applying to X?

    Joe (dd01fd)

  33. You cannot rule out intent entirely. Most Constitutional interpretation hinges on intent. The First Amendment is pretty cryptic – I expect justices to ask themselves “what did the people writing this about establishment of religion mean and intend here?”

    At the same time judges should not be able to make things up in definance of the clear text of the law. The Founders seem to have expected that judges who do this would be thrown out of office. It should happen a lot more often than it does.

    Subotai (d3abd9)

  34. Subotai:

    My main point is to show that there are situations where appealing SOLELY to the intent of the speaker (or in the case of a law, the legislature ratifying it) is not always the way to interpret.

    Patterico (c218bd)

  35. Is this really about intentionalism, or it it about the power of judges to say what the law is? Because intent is only one of many rationales which judges can abuse if they want to make up their own law.

    Subotai (d3abd9)

  36. As a rule of thumb its best to tract laws and constitutions as contracts. If a plain text reading is insufficient then and only then should interpretation be used and that only to the extent that the words used are defined in the commonly used meaning of when they were drafted. If pretzel logic is required to tease out the meaning, its probably a wrong conclusion. It should always be the intent of the lawmakers to make laws that are clearly understood in the plain text.

    cubanbob (409ac2)

  37. “Legislative intent only comes into it when the plain language of the law is ambiguous.”

    That’s not correct. For example, the courts ignore what the 1st, 2nd and 13th amendments say on a routine basis, and there is nothing ambiguous in what the law says. And, the argument that they usually use to justify their pervisions of the law, is the “intent” argument in some form (Holmes’ fatuous nonsense about fire in a crowded theater in U.S. v Schenk being an example)

    “Section 1. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”

    There’s no ambiguity in that…but, when liberals feel like fighting wars (or even when there is no war), they force people to serve in the armed forces anyway…and the courts have always let them do it.

    Like it or not, we live in a nation ruled by men, not laws. The law means whatever the government wants it to mean, no matter how unambiguous the words of the law are.

    Dave Surls (040a08)

  38. My main point is to show that there are situations where appealing SOLELY to the intent of the speaker (or in the case of a law, the legislature ratifying it) is not always the way to interpret.

    I agree then. The speaker has an obligation to communicate in language his audience can understand.

    You can’t just pass a bill stating that motherhood is a good thing and than announce that you intend it to be understood as making you undisputed dictator. This goes to epistemology more than to the law.

    Subotai (d3abd9)

  39. I think the issue of the passage of time and the changes in meaning of words is important. “Militia” is a great example. “A well regulated militia” meant something entirely different in 1824 when Jackson should have been elected by the militia, which meant all the able men between the ages of 17 and 35. In 1828, the same segment of the population did elect him. The original definition in US law excluded blacks and women, blacks maybe on purpose because of fears of slave uprisings. The Supreme Court seems to be concluding that the second amendment should be interpreted by “original intent.”

    How does that square with your argument, Patrick ?

    I think the key issue with the Second Amendment is whether the “militia” clause limits the clear language of the rest of the provision. I don’t think it does, nor does the Supreme Court — so a changing meaning of the word “militia” doesn’t really govern the question of who may bear arms.

    Patterico (c218bd)

  40. Scalia’s view is that the term “uses a firearm” plainly does not include “shows an loaded firearm to the seller so that the seller can see if he wants to accept the firearm in exchange for drugs.”

    Thanks for the response.

    I think we agree, I certainly agree with what Scalia did here. I guess my view is that I would be tempted to say, “That’s not what they meant (i.e., having an unloaded gun for bartering) when they wrote the bill” which sounds like saying “that was not their intention“. But, as you point out, the other way of looking at it/describing it with words, is to ask what the majority of people would understand the text to say.

    I agree that words mean something, and I agree that communication is a two way street, and I agree that people will twist words to mean what they want them to mean when they can get away with it. (Started a long time ago when satan misquoted God to stir up curiosity.)

    MD in Philly (59a3ad)

  41. We also do not really “know” what a legislature meant. That some number of them stood at a lecturn and spoke for awhile does not mean that the legislature as a whole “voted” for that meaning.

    But we do know certainly what text was in front of them and was voted upon and adopted. Well, we do so long as Nancy Pelosi is not running the legislature …

    SPQR (26be8b)

  42. If I use cocaine to barter for malaria medication for the poor while holding a gun that does not work should I get the max penalty?

    highpockets (c5de3a)

  43. If the written text was not important there would be no written text – there would only be a title, if anything.

    Language is important. If what is written is not what is meant, re-write it. The onus is on the lawmaker to express himself, not the judge to read the lawmaker’s abscure intentions.

    Laws are meant to be understood by more than just mind readers.

    Amphipolis (17a9b7)

  44. Let’s replay the scenario:

    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!
    .
    Excellent, Your Honor. Sounds interesting. Move for a Writ of Habeas Corpus ……”

    Arbalest (e68e2a)

  45. “I think we agree, I certainly agree with what Scalia did here. I guess my view is that I would be tempted to say, “That’s not what they meant (i.e., having an unloaded gun for bartering) when they wrote the bill” which sounds like saying “that was not their intention“. But, as you point out, the other way of looking at it/describing it with words, is to ask what the majority of people would understand the text to say.”

    I guess the issue is: what if the legislative intent, as shown by the debates and signed statements of the Congresscritters who voted, was that the language covered the barter situation — but you agree with Scalia and me that the plain language of “uses” does not include that situation?

    (Unlike the example I gave in the post having to do with the tax, one *could* argue that the “uses a firearm” example is ambiguous, as Ben Sheffner argues. But assume you agree with Scalia and me that it’s not — or at least that it is far less plausible that the barter example falls within the statute’s purview.)

    Are you happy to substitute an appeal to unexpressed intent over plain language?

    The intentionalists are.

    Patterico (c218bd)

  46. 18 Mike K wrote: “‘Militia’ is a great example. ‘A well regulated militia’ meant something entirely different in 1824 when Jackson should have been elected by the militia, which meant all the able men between the ages of 17 and 35. In 1828, the same segment of the population did elect him. The original definition in US law excluded blacks and women, blacks maybe on purpose because of fears of slave uprisings.”

    1) The militia and voters were never the same set. Not in 1824, not in 1828, not in 1776-1788. Rather obviously, minors did not vote, and old men did.

    2) In 1824, there was still no real popular vote count. Six states had no popular vote, and several states had only a token popular vote.

    3) Circa 1788, free black men did serve in the militia, quite routinely. (Some also voted.) They were excluded later on, when militia service came to imply citizenship, and strict race barriers were wanted.

    10 NK: Yes, you used the money. That is what money is for – to be exchanged for goods or services. A gun is for shooting bullets into things, or to make the threat of same. A gun offered as an item of trade is not being used. Or more precisely, it is being used as another class of thing.

    Suppose I’m buying drugs, the dealer wants $30,000 for 10 kilos of cocaine, and I’m short of cash. I give him $20,000 and three full-auto AK-47s – which I don’t have with me, but I’ll send them around tomorrow. Have I used those guns in the crime? What if the dealer has associates in Mexico who need some firepower, and I have an associate in Mexico who will deliver the guns there?

    Or suppose I leave a car, some bling, and a gun with the drug dealer as security for cash to be paid later?

    Rich Rostrom (7a3582)

  47. It seems to me that you, Patterico, have used an intentionalist’s argument to support your argument for the meaning of “uses” in this:

    Congress once passed a law imposing a higher prison term on a defendant who “uses a firearm” in a drug trafficking crime.

    You wrote in comment 21,

    In that case, showing the gun is clearly not “using” it as a weapon to cause fear.

    But, the “statute” says nothing about “fear” or causing fear. One does not get to the issue of “fear” until one starts musing about what Congress’ intention might have been.
    I say we start with the plain language of the law and then look to evidence of intent to make sure we’re getting it right. Of course, the plain language should usually prevail (note the word “usually”) and when judicial interpretation of a statute (as opposed to a constitutional provsion) differ from what a current legistlature thinks is the correct interpretation, then the legislature should do what it is elected to do.

    Ira (28a423)

  48. PS: Great thread!

    Ira (28a423)

  49. Scalia is correct, words have specific meanings. Intent is a slippery slope that erodes the entire concept of the rule of law. Upon hindsight if a legistlative body concludes they have made an error in crafting a law they are free to revist it and make their meaning more clear.

    There has been entirely too much interpretation of meaning by judges. This diminishes the system of checks and balances by improperly usurping the power of the legistlative branch.

    Amused Observer (7fb53d)

  50. But we do know certainly what text was in front of them and was voted upon and adopted.

    But how do we know what they meant by the words in that text? It is rarely as clear as the numerical example Pat gave. Usually judges are called on to interpret English words and phrases.

    Subotai (d3abd9)

  51. 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.”

    So, who is at fault here? The judge or the legislature? I think it is clearly the judge. It can sometimes be appropriate to look to the intent of the legislature, but only if the text is ambiguous. There is no ambiguity in the scenario Pat provided.

    Subotai (d3abd9)

  52. I guess the issue is: what if the legislative intent, as shown by the debates and signed statements of the Congresscritters who voted, was that the language covered the barter situation — but you agree with Scalia and me that the plain language of “uses” does not include that situation?
    Are you happy to substitute an appeal to unexpressed intent over plain language?

    As I said, I agree with you. If someone showed me a transcript of the debate on the bill and was able to show their “intent” was different than the accepted meaning of the text, I would say they did a very poor job of wording the law, and if they want it to mean something different than what you and ma and Scalia agree it means, they need to rewrite it.

    That would not be a problem if all were interested in the good of the Republic. Odds are, that if the legislative process focused on what it should and in the manner it should, one would not expect “typos’ voted into law.

    MD in Philly (59a3ad)

  53. Subotai:

    So, who is at fault here? The judge or the legislature? I think it is clearly the judge. It can sometimes be appropriate to look to the intent of the legislature, but only if the text is ambiguous. There is no ambiguity in the scenario Pat provided.

    Then you agree the author(s)’ intent shouldn’t matter?

    DRJ (daa62a)

  54. “at issue is not the “intent” of the legislators, but the straight forward meaning of the text as it would be understood by the average user of American English.”

    No no no. Not “average user of American English”, but by persons trained in the conventions of legal language and precedent.

    Not the jury, but the jurist.

    SarahW (af7312)

  55. Patterico – strange formatting in the comments. What’s up with that?

    SarahW (af7312)

  56. I’m in the unaccustomed of defending the judges on this thread.

    If a judge is to give legal life to a phrase such as “Congress shall make no law respecting an establishment of religion”, he has to have some knowledge of what “respecting an establishment of religion” entails.

    The appropriate way for him to get that knowledge is to attempt to discover what an “establishment of religion” meant to the people who wrote those words. Failure to go through this process is the cause of much SCOTUS mischief.

    Subotai (d3abd9)

  57. SarahW #56 – when first saved, the comments are one giant paragraph as far as the commenter can tell … as soon as you do a “Refresh” on the page, the comments show in all their glory, for all to see …

    It’s a recent feature of this fine blog …

    Alasdair (205079)

  58. BTW, I think the inclusion of 😉 in the text of his comment leads one to the common understanding nk was not serious about his “use” of a gun. It doesn’t matter what I think his intent was, the winking smiley conveys the meaning that it was a joke.

    MD in Philly (59a3ad)

  59. Sarah: they’re working on the comments and some other aspects of the blog. It’s slow going, but the people are volunteering their time.

    Patterico (c218bd)

  60. No no no. Not “average user of American English”, but by persons trained in the conventions of legal language and precedent.

    Not the jury, but the jurist.

    Why do you say that, Sarah?

    Patterico (c218bd)

  61. The thing is …

    In Illinois, if you point a loaded gun at somebody

    You can be guilty of aggravated assault punishable by up to 364 days in the county jail

    or

    Attempt (sic) murder punishable by a minimum of six years in prison and up to forty-five years enhanced.

    If First Amendment rights are not involved, almost anything that can fit into the text of a criminal statute will go to the trier of fact and your fate is in the hands of the prosecutor who chooses what charges to bring and the judge who chooses the jury instructions.

    nk (db4a41)

  62. If Scalia wants to bring First Amendment interpretation generally into all criminal statutes, I will be the first to kiss his hand.

    nk (db4a41)

  63. “Legislative intent” is not “what the legislature intended”. It is “what can be inferred that it rationally intended?” Sorry, Patterico.

    nk (db4a41)

  64. Here are another pair of examples that bear a similarity to a case that actually went to the Supreme Court.

    1. Congress passes a law that says a tax applies to anyone who starts a new job before December 31, 2010.

    2. Congress passes a law that says a particular government benefit can be obtained by anyone who applies for it before December 31, 2010.

    Joe Taxpayer is hired and starts work on December 31. Stanley Sponge applies for his benefit on December 31, 2010.

    Joe is penalized by the IRS for nonpayment of the tax. Stanley is refused his benefit by the local welfare office.

    Each goes to court.

    Now, one could say that Congress obviously meant “before the end of the year” or “before the end of the day on December 31″ when they wrote “before December 31.”

    You are the judge in each case. You have sworn an oath to apply the law regardless of your personal predilections, meaning you can’t simply rule for the working man because he’s a working man, and against the sponge because he’s collective welfare. You have to apply the law evenhandedly.

    1) How do you rule in Joe’s case?

    2) How do you rule in Stanley’s case?

    3) In either case, do you go hunting through committee reports and transcripts of legislative floor speeches for clues about legislative intent? Do you apply the plain language of the statute? Or do you alter the plain language, even without resort to legislative history?

    What are your self-imposed rules of interpretation in these cases?

    I may make a post out of this.

    [UPDATE: I have rewritten one of the sentences for clarity. The example was a mess before. — P]

    Patterico (c218bd)

  65. That’s easy. If it’s punitive, it is construed strictly. If it’s ameliorative, it is construed liberally.

    nk (db4a41)

  66. There is always a presumption that the legislature does not intend injustice.

    nk (db4a41)

  67. The biggest problem with “intentionalisim” is that it undermines a fundamental concept of our system of government – separation of powers. A properly functioning three-branch government, legislative, judicial, executive, achives the “best” law by each exercising, within their restrictions, their appropriate roles.

    Example: in a proper functioning system, the legislature passes a well-meaning law, but it over-reaches and creates a law that is unconstitutional. Despite this, the President signs the law. A suit ensues, and the Judicial system appropriately rules the law unconstitional. The legislature responds by narrowing the law, addressing the unconstitional sections, and forwarding an acceptable law. The President signs, a suit ensues, but this time, the Supreme Court upholds. That is how it is SUPPOSED to work

    However, in a system where “intentionalism” rules, judges are, in effect, short-circuiting the process, and changing the law according to unwritten rules. The problems here are many-fold. First, a single arbiter has designated himself/herself as “the” authority on what the law was “meant” to say. Second, how does the law ever get corrected in such a system? Why not just right generic laws – “speeding is bad” and allow judges to determine what that means? Third, how do the people correct laws that were passed decades or centuries ago during different times if judges keep reinterpreting them to fit what they were “intended” to mean?

    These are just a few of the problems of “intentionalism.” It is nothing more than a short-cut around the proper working of a healthy three-branch government.

    Gregg (4458df)

  68. “Legislative intent” is not “what the legislature intended”. It is “what can be inferred that it rationally intended?” Sorry, Patterico.

    I don’t know what “Sorry, Patterico” means. In fact, I don’t quite understand what you are arguing here.

    You know that judges comb committee reports and transcripts of floor speeches for evidence of what the legislature actually intended, right?

    I oppose that. But it happens.

    Patterico (c218bd)

  69. 67.There is always a presumption that the legislature does not intend injustice.

    Comment by nk

    I thought ObamaCare changed that. If not, cap and trade will.

    MD in Philly (59a3ad)

  70. Judges don’t claim to have read the legislature’s collective mind. They do, as you say, comb the legislative process to find support for their decision. But, in the end, they only draw an inference. And they give great deference to any rational “legislative intent”.

    nk (db4a41)

  71. Subotai:

    If a judge is to give legal life to a phrase such as “Congress shall make no law respecting an establishment of religion”, he has to have some knowledge of what “respecting an establishment of religion” entails.

    The appropriate way for him to get that knowledge is to attempt to discover what an “establishment of religion” meant to the people who wrote those words. Failure to go through this process is the cause of much SCOTUS mischief.

    I disagree. While I believe a judge should read the original documents and the legal precedents that interpret it, considering what history books and other sources say on the topic simply opens the door to incorporating foreign law and pundits’ opinions into our laws. IMO that’s not good.

    DRJ (daa62a)

  72. I don’t know what “Sorry, Patterico” means.

    I don’t think judges practice intentionalism. I think they are in the same state as the poor shmoe in front of them, trying to infer what the law is. With rules to keep them within limits.

    nk (db4a41)

  73. I don’t think judges practice intentionalism.

    I don’t think they do either.

    But the intentionalists think they should.

    Do you agree?

    Patterico (c218bd)

  74. Judges formerly claimed the right to make bizarre rulings based on what a two hundred year old law said, now they want to make bizarre rulings based on what a law said that was written yesterday. If a law is so badly written one must go over transcripts of floor speeches to figure out what the hell the law means, the law should be thrown out and the legislators strongly urged to rewrite the law.

    Charlos (73a780)

  75. Do you agree?

    Comment by Patterico — 4/3/2010 @ 8:39 pm

    Hard question. I mentioned common law crimes before. And some of the rules of construction. Where do we stop the merry-go-round? I don’t know.

    I got paid, if not all that well ;), over things like these.

    nk (db4a41)

  76. I really thought intentionalism had more fans than this.

    Who wants to argue that the judge got it right?

    Patterico (c218bd)

  77. For myself, when I hear the word “intention” in the context of law, I’m thinking of Bill of Rights and understanding what the law meant as it was written, rather than it being reinterpreted for our current society. So I think of it in terms of maintaining what the text meant as originally written, which is different than a judge trying to find a rationale to say the law is something different than what it says. If that made any sense.

    Good night, West Coast.

    MD in Philly (59a3ad)

  78. I added an update inviting any banned commenter to leave a comment. Generally, commenters are banned because they leave comments that violate the rules set forth in this post. So I am willing to approve any argument that really goes to the merits and doesn’t contain even the slightest personal attack or commentary in any way.

    Patterico (c218bd)

  79. I’ve never seen “use” to be construed legally as anything other than what the item’s normal function actually is. Sounds sorta like Bubba’s, “Depends what the meaning of “is” is.”–doesn’t it.

    I use a fork to eat or manipulate food with. If I tell someone to give me your money or I will stab you, while brandishing a fork, it is not used as an utensil, but as a weapon. It is described then as a weapon first, then with the description of the actual item that is used as a weapon.

    If a firearm is used as a form of payment, then it is not being used as it’s primary purpose as a weapon, but as another form of cash. If this decision stands, then only anarchy can possibly result. Words will mean diddly squat and communication will cease. I might as well just type:

    okasjfpao dfkjodadf jkdfaodfj0 dfjwopeijarepo34 kjfoa,md83rr i8jkapd98 dklfja098ermnkjdfako m0dfiksd fjfoe kj9iew; kdfjuU and let you just figure out what I actually was saying.

    peedoffamerican (3ab0c7)

  80. Scalia made the point that:

    1. Most laws tend to be politically unpopular

    2. Legislative debate is more or less about re-elecion that statutes

    3. Using CYA campaigning sound bites is a poor evidenciary benchmark for a impartial justice system

    4. The intent of a widely diverse body of individuals cannot be remotely measured except by their vote on a constant set of written language

    EricPWJohnson (dad704)

  81. For what it’s worth, I would have to agree with Patterico and Justice Scalia on this.

    Intentions don’t really matter. All a judge has to go on is the letter of the law and precedent. Supreme Court justices have to interpret the law as to its constitutionality. No more, no less.

    It’s up to the legislature — Congress — to assure there is no ambiguity in the law. That’s why they are elected and paid. If they can’t fulfill that obligation, they should be dismissed at the polls.

    If the law doesn’t rise to the standards of constitutionality, we have to suffer the consequences and make sure we consider long and hard before marking a ballot.

    Ag80 (f67beb)

  82. Nothing particularly novel about Scalia’s philosophy and it used to rather common. It seems a shame to me that legal theory has become so diluted that a straightforward legal positivist philosophy is worth talking about in basic terms. Honestly, this is a real old debate and I see nothing new here – if you are interested read Austin’s 1932 The Province of Jurisprudence Determined or some those who have followed him.

    Austin presents a much more coherent argument for positive law than I ever could.

    max (383bf5)

  83. Honestly, this is a real old debate and I see nothing new here . . .

    Indeed — and yet, the people calling themselves “intentionalists” would pronounce it a travesty for anyone to interpret words in any way not directly tied to the intent of the speaker (or in the case of laws, the intent of the ratifier). They have incessantly mocked the idea of interpretations that give any weight to the reasonable interpretation of the audience. I’m surprised nobody is here to defend their purely intentionalist point of view.

    Patterico (c218bd)

  84. #77 I’m not sure what the debate here is. No one holds the view you describe as “intentionalism” with respect to statutory interpretation (contract is a very different matter)

    As pointed out by an earlier commentator, the law already is that plain language (subject to a set of interpretive principles established by case law) is dispositive unless there is some ambiguity, in which case legislative history is one tool for figuring out what meaning should be gleaned.

    This is because speaking of the “intentions” of a collective body like Congress is pretty meaningless, except to the extent the same majority which votes for a bill simultaneously approves an interpretive commentary, preamble, etc.

    Scalia believes that legislative history should never be used. Part of his distaste arises because of the plethora of individual legislators in Congress inserting their views of what a bill means, which statements are often contradictory. In contract, in California judges normally use committee reports only, which usually don’t have the “he said, she said” nature of individual legislator’s speeches.

    Cyrus Sanai (311cd8)

  85. Hmmm … I wonder how close a “strict constructionist” is to an “intentionalist” ? Was/is Judge Bork either ?

    Alasdair (205079)

  86. Roe v. Wade is a perfect example here. In deciding that case, the SCOTUS cited the 14th Amendment to the COTUS:
    “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

    — Because the unborn are not citizens they do not enjoy equal protection; right? Wait a minute . . . where does it say that the unborn are NOT persons? Answer: it doesn’t say that. So, if there is a law that makes it a crime to take the life of a person, how does that not apply to the unborn? Answer: it does apply, unless state law defines the unborn as “not persons”.

    Read it again. It does not say “nor deny to any CITIZEN within its jurisdiction the equal protection of the laws”. It specifically says “person”, and nowhere does it say that the unborn are not persons — it only says that they are not citizens. The phrase “all persons born” does not constitute a definition of the unborn as non-persons; in fact, it implies a definition of persons either born OR unborn. The born are citizens, the unborn are not; either way, they are persons.

    The SCOTUS further determined that “privileges”, “immunities” & “liberty” all add up to a constitutional “right to privacy” for a pregnant woman.

    The “right” to take the life of the person residing within her body; this, despite the fact that what the 14th actually says is [emphasis mine]: “nor deny to any person within its jurisdiction the equal protection of the laws”.

    In writing their opinion the SCOTUS very carefully avoided the “when does life begin” question. They basically said that it was above their pay grade. But arbitrarily determining that a woman’s “right to privacy” extends to the killing of her unborn in the womb — playing God, and determining who lives and who dies, without due process — wasn’t.

    Icy Texan (2a4a40)

  87. “But, the “statute” says nothing about “fear” or causing fear. One does not get to the issue of “fear” until one starts musing about what Congress’ intention might have been.”

    And Congress may not have been concerned specifically about the causing of fear, but more generally with the involvement and mixture of drugs and guns. So under that latter sense, trading a gun for drugs would be a ‘use’ of the type congress sought to penalize.

    [note: fished from spam filter. –Stashiu]

    imdw (0069f8)

  88. Patterico wrote:

    .. when it comes to interpreting statutes, a strict reverence for the intent of the legislature is not compatible with the rule of law.

    That may well be true, but I think it’s important to ask *why* it should be true? The answer, I think, is that strict reverence for the intent of the legislature is rarely practical.

    Law, like communication, must function in an imperfect world populated by people who – for various reasons – read the exact same words and interpret them differently. This is why the “reasonable man standard” is a useful legal convention even though it is demonstrably true that people are not, in fact, reasonable much of the time :p

    So in a way, I think both things go on – the original onus is on lawmakers to express their intent clearly. But also we acknowledge that proper application of even clearly written laws to a wide variety of circumstances (some unanticipated by the legislature and some resulting from the collision of two legitimate competing interests) can be problematic in practice.

    Though we usually think of the reasonable man standard in connection with negligence cases, I think it is applied informally any time a court tries to decide whether a person made a good faith effort to comply with the law. We don’t ask, “Gosh – whatever could the lawmakers have possibly meant by this?” because who has time to review hours of hearing and testimony in the limited decision space most of us are afforded in every day life? That places too great a burden on ordinary people. It’s unworkable in practice.

    Instead, we say, “How should a reasonable person interpret this? How much of an effort should a reasonable person make to understand and comply with the law?”

    My problem with intentionalism has always been that the speaker best knows what he or she meant.

    Therefore, if we’re trying to assign responsibility for ensuring clear communication, the person with the most knowledge (i.e., the speaker) has the best chance of making that happen. Only he knows what he means and it’s not practical to expect others to understand him if he hasn’t made his intent clear.

    But the speaker’s duty to communicate clearly is not absolute because externalities like experience, education and emotion form part of the context listeners use to resolve ambiguity and assess intent.

    The only practical answer is for speakers to be as clear as possible and for listeners to be reasonable in their attempts to interpret ambiguous communications. The entire process rests upon the presumption of good faith.

    I think that’s where the process most often breaks down – the assumption of good faith is not always warranted.

    Cassandra (b137c4)

  89. Wow! Who would have thought that words actually mean something?

    For years, semanticists have been pushed off to a little corner of academia, and generally ignored.

    Today, for one brief moment, somewhere, S.I.Hayakawa is smiling.

    AD - RtR/OS! (f8d905)

  90. #65

    That is why contract documents written by competent people use language like “..on or before December 31, 2010″
    Otherwise you are stuck with the strictly literal and specific
    “before December 31, 2010″

    If the writer did not intend to exclude the day of the 31st, they should take responsibility for their mistake and amend the document.

    This is the problem we get from three thousand pages of laws, rules, regulations written in haste by fools.
    Enforced by literalists like the IRS.

    In your case above, the poor guy getting hit by the IRS would have to hire someone scour the text for ambiguous language of ay kind… hopefully some about “end of year”.
    (I’ve gotten a favorable discretionary ruling in house from the IRS before… rulings that would have gone the other way with a different regional director)

    The welfare guy probably has a free social worker fill out an appeal for him to sign, who then signs him up for several other programs for the interim.
    The

    SteveG (11baba)

  91. I disagree. While I believe a judge should read the original documents and the legal precedents that interpret it, considering what history books and other sources say on the topic simply opens the door to incorporating foreign law and pundits’ opinions into our laws.

    Then how is a judge supposed to understand such phrases as “cruel and unusual” or “militia” or “subject to the juristiction thereof” or “establishment of religion”? Just looking at the words on paper, these phrases could mean anything. If you want to know what they mean you have to be a bit of a historian. In fact the recent SCOTUS rulings on the Second Amdt depended on just this sort of historical research.

    Legal precedents, which judges pay far too much attention to, have to be based on something tangible initially. Otherwise they boil down to “Because we say so!”

    Subotai (6be5f6)

  92. If there’s any problem with the drug case in an intentionalism argument, it’s that it did involve intending to use the gun in barter for drugs–a type of transaction that Congress could reasonably be presumed to object to given the overall state of drug and gun crime at the time. Suppose the case had involved the drug seller using the butt of an unloaded rifle to grind ingredients during the manufacture of the drugs–the gun is still being “used” in the commission of a felony, but it is not being used transactionally or in a way distinguishable from how a smooth rock might be used. Would the Supreme Court have been likely to rule in the same manner?

    M. Scott Eiland (c552ec)

  93. […] a debate taking place between Marc Danziger (Armed Liberal) and Patrick Frey (Patterico) on their respective blogs and in the comments of the posts on legal philosophy that I […]

    Reasonable Interpretation (420763)

  94. What interest does a lawyer have in crafting legislation that is not intentionaly hard to understand?

    This is not an attack.

    I want to believe those serving are motivated to only do what is best for our nation.

    I no longer believe this is true.

    We can blame Unions , Coporations and even Trial Lawyers, but until we change the idea of what serving the nation means we are lost.

    BTW Patterico I am never ever ever ever doing a crime where you work :).

    highpockets (c5de3a)

  95. “But, the “statute” says nothing about “fear” or causing fear. One does not get to the issue of “fear” until one starts musing about what Congress’ intention might have been.”

    Indeed. And nk’s supermarket example was not a drug transaction.

    I was shorthanding a lot, and assuming that everyone followed that we were talking about a different “use” of a gun in nk’s example. In his example, the underlying crime would not be a drug transaction but a robbery. And one “uses” a gun in a robbery if they display it as a weapon to cause fear. Because causing fear is one way people accomplish robberies (they can also happen through force as well).

    That’s where the reference to fear came from.

    Patterico (c218bd)

  96. I think intent should only be invoked where the language of the law is unclear or ambiguous. To disregard intent is to give permission to the courts to do as they have so often done, interpreted the law to mean whatever the court wants ignoring both the intent and the letter of the law.

    Ken Hahn (913a6f)

  97. Ken, then courts that want to impose their own policy find ambiguity where there was none.

    SPQR (26be8b)

  98. I had a post from December which addressed many of the “intent vs. plain meaning” arguments we are discussing here. Click the link; I think you’ll find it worth another read.

    Patterico (c218bd)

  99. Man am I confused.

    I argue relentlessly that the Founding Fathers’ intent is crucial to the correct understanding and application of the Constitution’s provisions. Some say I am a strict constructionist and I guess I am. If the Congress and Supreme Court were held accountable to the framers’ intent we would not be bearing the burden of 60+ years of the Commerce Clause cloaking every power grab of the federal government.

    As you know so well, the Commerce Clause was designed to prevent the states from erecting barriers to interstate commerce. It has become the remainders bin, catch-all justification for any demand for more government intervention and suppression of the power of the enumerated rights as a restraint on federal power.

    I suggest that EVERY law should be subjected to a Constitutionality hurdle long before we worry about defining ambiguous terms within the law.

    Do you support a macro level test which includes original intent? In an age when a Congressman from the President’s state proudly pronounces the Constitution is irrelevant when measured against legislative action based on “feelings”, and the Speaker fobs off with “you’ve got to be kidding” a demand for a Constitution citation that supports the HCR legislation I think it is time to launch a whole new era where the Framers’ intent is raised again to be the Golden Standard. Anything less will see the Constitution and our liberties relegated to the “dustbin of history” so beloved by socialists and Marxists around the globe.

    in_awe (44fed5)

  100. in_awe:

    I argue more for an “original understanding” of the Constitution. With the Constitution, there is even an intentionalist justification for this, since the intent of the ratifiers is technically what you look to, and (unlike with statutes) the “ratifiers of the Constitution” is a phrase that encompasses a very broad group of people, going beyond the narrow confines of the Founding Fathers.

    But I agree with you that the ORIGINAL meaning is the one to look to.

    Patterico (c218bd)

  101. Just think how long some of this legislation will get in page count if we demand that Congress add addendums defining each and every word in the legislative act – which might not be a bad idea, just unworkable (probably).

    For thousands of years, some of us were guided by ten simple statements originally inscribed on stone tablets….just think how far we’ve advanced.

    AD - RtR/OS! (73c6b4)

  102. Just now finding this.

    Listen: it’s rather simple. If textualists want to interpret “plain text” apart from what they believe the intent behind them is, they are being judicial activists, and they are essentially creating their own texts. But of course, textualists aren’t avoiding “intentionalism” by doing so. They are merely privileging their own intentions.

    If, on the other hand, the same textualists don’t buy post hoc claims to intent that they believe don’t match what they read as plain language in a statute, they are merely interpreting, and so can conclude the same thing without committing themselves to charges of judicial activism.

    The very fact that they are reading the statute at all — that they consider it language — presumes intent.

    In one example, the legislature wrote “$1,000,000″ then later claimed it meant “$10,000.” Okay. So? They failed to signal their intent. Law working as it does, the judge has every right to doubt their ex post facto claims to that intent. And he has every right to tell them that, if that’s what they really intended, perhaps they should rewrite the law in such a way that their intent is signaled more clearly.

    Dismissing authorial intent altogether, though, privileges the intent of the receiver only. Precedent may provide a check on that over time. But the practice is still linguistically incoherent.

    If a judge reads plain language, finds no ambiguity, and proceeds from there, all that suggests is that he believes he’s properly understood the intent. And that’s the case whether he believes himself to be doing so or not.

    If, however, in cases where there is ambiguity, he decides that what he reads takes precedent over what the legislators intended, he has essentially rewritten the law.

    Jeff G (1600ff)


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