Patterico's Pontifications

5/1/2010

Revisiting the “Plain Language vs. Legislative Intent” Debate in Legal Interpretation

Filed under: General — Patterico @ 1:30 pm

In a previous post, I posed the following 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. However, you are convicted after a judge finds irrefutable contemporaneous evidence showing that all legislators who voted for the tax intended to impose it on people making over $10,000 a year. The judge, an “intentionalist,” finds that the intent of the legislature controls, regardless of the plain meaning of the law.

Under the plain language of the law, the tax does not apply to you. Applying the intent of the legislators, it does. Which is the better interpretation?

I argued that the better interpretation in that context is one that looks to the unambiguous plain language of the law, even if that means giving no effect to the legislators’ actual intent — because their intent was not embodied in the plain language of the law.

In its strongest form, this reliance on plain language over intent is called “textualism.” Its most famous adherent is Justice Scalia. Unlike most legal interpreters, who are willing to look to indicators of legislative intent in cases where the plain language is ambiguous, Justice Scalia rejects any reliance on legislative intent that is not reflected in the plain text.

Textualism, Scalia argues in his book “A Matter of Interpretation,” is what undergirds the rule of law: “It is what makes government a government of laws and not of men.” As he says: “We are governed by laws, not by the intentions of legislators.” This survey of Scalia’s textualist approach summarizes the philosophy well: “[I]f the law does not mean what it says and does not say what it means, citizens are left at a loss concerning how they should conduct themselves.” Justice Scalia has put it more succinctly: “Once text is abandoned, one intuition will serve as well as the other.”

“Intentionalists” take a different view. They believe that the intent of the speaker determines the meaning of language. (In the case of interpreting laws and the Constitution, they argue that the intent of the ratifier controls.) In cases where the plain text and the legislative intent diverge, then, they argue that the only linguistically coherent interpretation is one that favors legislative intent over the plain meaning of the text.

Jeff Goldstein recently fleshed out the intentionalist argument in this context, in an interesting post addressing the interface of intentionalism and legal interpretation. His post is lengthy and thoughtful, and while there is much to agree with, I disagree with some parts of it as well. Ultimately, I think his approach provides an unsatisfactory answer to the example at the head of this post, because it privileges an unexpressed legislative intent over the plain text of the law, thus holding citizens responsible for violating provisions that don’t even appear in the law books.

Goldstein’s post sets up what I will argue is a false dichotomy between “textualism” and “originalism” (or at least originalism “in its strongest form,” which he argues is an appeal to original intent). Goldstein extensively quotes Mark Levin arguing in favor of originalism and against a “living Constitution.” I completely agree with Levin on this point, as does Justice Scalia. No judicial conservative subscribes to a “living Constitution.”

But one can reject a categorical application of “intentionalism” in legal interpretation, and still reject the standardless beast that is the “living Constitution.” In other words, one can be a textualist and still be an originalist.

For example, Justice Scalia, the quintessential textualist, rejects a “living Constitution” with no qualms — insisting that the Constitution is “dead” (meaning its meaning was fixed when it was ratified):

The true dichotomy is not between textualism and originalism, but rather textualism and intentionalism. This gets us back to the question at the beginning of the post. What determines the meaning of a law — the plain text or the intent of the legislator? The dichotomy is sometimes expressed as a dichotomy between “original understanding” and “original intent.” This is because a textualist determines what a law means by appealing to “original understanding” — in other words, how would the plain text of the law have been understood by a reasonable audience at the time the law was passed, taking into account all relevant context? This concept is referred to by Goldstein as “convention” — in other words, what is the conventional understanding of a statement?

It is undoubtedly true, as Goldstein persuasively argued in 2005, that there is little difference between the “original understanding” of the public and the “original intent” of the ratifiers when it comes to interpreting the Constitution. This is because the Constitution’s ratification process required broad-based public approval through conventions held in the various states. So the original understanding of the public was roughly equivalent to the original intent of the ratifiers.

Things become more slippery when we discuss mere statutes, where “intentionalism” requires an appeal to the intent of a much narrower group of “ratifiers” — namely, those in the legislature who voted to pass the law.

As I understand Goldstein’s latest post, he argues that textualist judges are, in most cases, reaching the same result as intentionalists would. The reason, he explains, is that lawmakers tend to write laws in a specialized way that appeals to conventionally understood meanings. Accordingly, an interpretive approach that claims to favor conventional meaning will tend to approximate the legislature’s true intent in most cases. Thus, in legal interpretation, the practical distinction between a textualist and an intentionalist is usually a distinction without a difference, at least in terms of results.

However, Goldstein argues, there is a very troubling difference between the two approaches on a theoretical level — because if the textualist is not trying to ascertain the actual intent of the legislators who passed the law, he is simply privileging his own intent over that of the legislature. Judges are interpreting language, Goldstein argues — and language can be understood as language only if you appeal to the intent of the speaker (or, in the case of law, the ratifier). If the judge does anything else, he is (in Goldstein’s view) simply rewriting the law according to his own intent.

But as I noted above, in his writings on interpretation, Justice Scalia has advocated a very different view: that adherence to the text of a law is crucial to the concept of the rule of law. His view is that the rule of law requires citizens to be put on notice as to the content of the laws they are supposed to obey. This notice should take place through the plain language of the statute.

The question, as I have posed it before, is this: what happens when the clear text of the law says one thing, but the intent of the ratifiers was clearly something else?

100,000
Does this number mean 10,000 or 100,000? Your answer may depend on whether you are a “textualist” or an “intentionalist”

In comments to my previous post, Goldstein responded to my hypothetical in this way:

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.

This response addressed a different situation than I had posed in the post. Goldstein here addresses the question of how to handle a situation where legislators attempt a post hoc re-interpretation of their words. In that case, Goldstein argues, a judge is interpreting properly if he is suspicious of their after-the-fact claims regarding their intent, and instead tries to determine their intent at the time the law was passed.

But in my post, I asked readers to assume for the sake of argument that the legislature’s intent indeed really was to impose the tax on people making over $10,000. Assume that, in countless debates over several months, legislators consistently made it crystal clear that the tax was to apply to anyone making over $10,000. The evidence is not post hoc but rather contemporaneous and overwhelming. Assume that we know the addition of the extra zero was a drafting error, turning $10,000 into $100,000.

Yet the bill they passed, and the bill the President signed, contained the term $100,000. How should that term be interpreted by a judge?

Assume further that the judge can’t just tell them to go back and rewrite the statute, because in the meantime there has been an election and the legislature is composed of different legislators. The judge is tasked with determining what the law meant, and there is no way to dodge that task. How should he interpret the term “$10,000″?

In such cases, one might grant Goldstein the argument that the legislature “meant what it meant” regardless of what it said — and so, if the debate is really about “meaning,” we might not really have any debate at all. Obviously they “meant” $10,000 and not $100,000.

But if you’re the judge, and the wording of the law in front of your nose is $100,000, how are you going to interpret the term “$100,000″? The way it’s written? Or in accordance with what you know to be the legislators’ intent?

Put another way: in this context, should the judge privilege an interpretation of the law that he knows is indeed at odds with what the legislature intended?

And I think the answer here is clearly: “yes.” As Scalia would say, if we are to be a nation of laws and not men, we must be ruled by what the law says, and not by what the men passing it subjectively intended. If they didn’t express their intent clearly in the words of their law, it is wrong to bind citizens according to the legislators’ unexpressed intent.

My point here is not that intentionalism is always (or usually) an inappropriate interpretive method. I am simply arguing that there are certain contexts where the best interpretation of a statement is according to its plain meaning as determined by a reasonable audience — even though that interpretation may be at odds with the intent of the speaker. Otherwise, you can be held accountable for failing to pay a tax that does not even apply to you under the plain terms of the statute.

P.S. As with any post about intentionalism, I’m going to apply my strict no-personal-attacks rule in this thread. Comments must be strictly about ideas, with absolutely no personal comments whatsoever. 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.

Given my restrictive rules, I will accept comments from banned commenters, as long as they follow the rules I have set forth. No personal digs are allowed, no matter how small — but any articulation that hews strictly to the expression of ideas will be allowed.

I will not respond to any argument — whether made here or at any other site — that misstates my argument, or belittles it, or attempts to turn this into a discussion of personalities rather than ideas.

107 Responses to “Revisiting the “Plain Language vs. Legislative Intent” Debate in Legal Interpretation”

  1. Unless you can cite a real-world example of the text being so egregiouly different from the intent, I have to reject the entire premise.

    RTO Trainer (150e93)

  2. That’s fine. The post is directed at people who are comfortable dealing in hypotheticals anyway. If that doesn’t describe you, you’re welcome not to participate.

    If your argument is that argument by hypothetical is inherently illegitimate, however, I reject *that* premise.

    Patterico (c218bd)

  3. RTO Trainer,

    Obama promised the health care bill would provide coverage for all pre-existing conditions in children. It doesn’t but the government issued regulations interpreting his promise as the law instead of relying on the actual text of the new law.

    DRJ (d15e92)

  4. There are many examples of legislative language failing to match apparent legislative intent in various contexts. However, I am not going to cite any of them, because that would lead us into a discussion of how those real-life examples compare to my hypothetical, with the underlying premise of the discussion being that my post is invalid if those real-life examples are shown to be different from the hypothetical.

    I’m not starting down that road, because I reject that premise from the outset. The hypothetical in this post illustrates what I want it to illustrate, and I’d like people to discuss that and not a separate discussion that I consider to be a red herring.

    Patterico (c218bd)

  5. DRJ,

    I appreciate the example and it’s a good one. However, if someone can argue a difference between that example and my hypo, it doesn’t invalidate my hypo.

    Patterico (c218bd)

  6. I still say that “intentionalism” has nothing to do with law about interpreting law.

    There’s a special set of conventions, and a trail of law stretching back over time to govern interpretation of a statute or legal document. Only in cases of ambiguity or clear absurdity of plain language does any resort to legislative history have any relevance.

    SarahW (af7312)

  7. I wasn’t trying to get off-topic. The point was to show him it occurs in the real world and not just in hypos, so it’s worth discussing.

    DRJ (d15e92)

  8. Man….what is wrong with this picture?
    The “reasonable audience” of the 21st century is not the reasonable audience of the 18th century.
    The genius of the living constitution that the right so despises is that the environment is continuously evolving….that is empirical data….so the system must be adaptive.
    Again, the Founders and Framers were geniuses in both language and human nature, and if they had INTENDED for “originalism” to prevail they would have written it in IMMUTABLY.
    They INTENDED for ALL citizens to have to have a representative government.
    The System is WAI (Working As Intended).
    It is just not working like conservatives WANT it too.
    tant pis

    wheeler's cat (f242f6)

  9. DRJ: I know you weren’t, and it’s a good point.

    Patterico (c218bd)

  10. The point was to show him it occurs in the real world and not just in hypos, so it’s worth discussing.

    Which was all I was asking to know, not quickly comming up with an example of my own.

    Thank you.

    RTO Trainer (150e93)

  11. wheeler’s cat:

    That’s really a discussion for another thread. Here, in this thread, we are accepting originalism as a given, and arguing over where its focus should be.

    Patterico (c218bd)

  12. I wonder what an immutable statement would look like and how to tell it form one that was not?

    There are rafts of quotes form the founders that support their intent for originalism.

    RTO Trainer (150e93)

  13. I still say that “intentionalism” has nothing to do with law about interpreting law.

    There’s a special set of conventions, and a trail of law stretching back over time to govern interpretation of a statute or legal document. Only in cases of ambiguity or clear absurdity of plain language does any resort to legislative history have any relevance.

    Sarah:

    It’s still language.

    In addition, there are many categories of speech that have their own special conventions going back over time. Therefore, it seems to me that the fact that convention exists cannot alone serve as a justification for rejecting intentionalism.

    I’m still struggling myself with why it seems clear that intentionalism generally works as an interpretive strategy in most situations — yet there are others, like the example in the post, where it clearly yields an inferior interpretation.

    Patterico (c218bd)

  14. Wheeler’s Cat,

    I hate to side with the Rightists, but this idea of a “living” constitution is just bullshit. Documents don’t live. And the Founding Fathers meant what they said. If you want the Constitution to say what YOU mean, then amend it or leave it alone.

    Triumph (b66fe4)

  15. There are rafts of quotes form the founders that support their intent for originalism.

    Indeed. But all of us judicial conservatives support originalism.

    The more interesting question is: why does intentionalism yield an inferior interpretation in the $10,000/$100,000 example?

    Patterico (c218bd)

  16. Because legislation and statute are specialized functions of language. I know that intent is not to be considered in interpreting contracts under the law either.

    I can only give a hypothetical answer to the hypothetical question; the evidence of intent may be flawed itself or even dishonest. A legislator that intended such a difference, in light of, say evidence that every version of the bill showed 100K and not 10 might justifiably be questioned about his competence and reading ability.

    If this weren’t an old question we wouldn’t have concepts of “spirit” and “letter” of law nor the debates that arise when they seem to differ.

    RTO Trainer (150e93)

  17. Now..that doesn’t mean throw the baby out with the bathwater.
    Conservative justices are simply doing their job of maintaining the tension between hyper-exuberant progress and cautious validated change.
    The problem I have….is that somehow 21st century conservatism has become wholly defined by populist and religious tropes.

    “real” america
    “take back “our” country”
    Obama is “raping” liberty
    the constitution is being “shredded”

    And so any attempt at interpretation of the Founders intentionalism in a 21st context summons a shreiking populist mob of textualists and originalists.
    You should put more effort into educating the base, Honest man.
    Jeff writes beautifully, and so do you, but there is the problem of accessibility.
    The ideological leaders of the conservative movement are Rush, Palin, Beck, Malkin, Levin, NRO (except for Dr. Manzi), etc.
    They are all elites, but none of them are intellectuals.
    You and Jeff are intellectuals.
    Thus the accessibility problem.

    wheeler's cat (f242f6)

  18. But all of us judicial conservatives support originalism.

    I don’t buy that for a second.

    RTO Trainer (150e93)

  19. I can only give a hypothetical answer to the hypothetical question; the evidence of intent may be flawed itself or even dishonest. A legislator that intended such a difference, in light of, say evidence that every version of the bill showed 100K and not 10 might justifiably be questioned about his competence and reading ability.

    Your hypothetical answer rewrites my hypothetical question. I am asking you to ASSUME that their intent was to tax people making over $10,000. Your response is essentially to reject the assumption.

    I understand that rejecting the assumption makes it easier to argue from an intentionalist perspective. But, you see, that’s precisely why the hypothetical asks you to accept the assumption as true.

    Patterico (c218bd)

  20. There is depressing truthness there about who are the ideological leaders.

    happyfeet (c8caab)

  21. Because legislation and statute are specialized functions of language. I know that intent is not to be considered in interpreting contracts under the law either.

    That’s not quite accurate; contract law is multi-faceted and subtle.

    So are you arguing that it is legitimate to apply interpretive methods other than intentionalism any time the language in question fulfills a “specialized function”? Because that applies to a lot of categories of speech.

    And even if you accept the “specialized function” distinction, what is the *principle* by which you justify carving out such categories of speech from the general intentionalist rule that language must be interpreted by appealing to the speaker’s intent?

    Patterico (c218bd)

  22. But all of us judicial conservatives support originalism.

    I don’t buy that for a second.

    Then name me a judicial conservative who rejects originalism.

    To me, adhering to a philosophy of originalism is essentially the *definition* of a judicial conservative. Anyone who argued for a living Constitution wouldn’t deserve the label of “judicial conservative” as far as I’m concerned.

    Patterico (c218bd)

  23. Jeff writes beautifully, and so do you, but there is the problem of accessibility.

    Well, thank you — but I think it’s inherent in the nature of the issue that it takes more effort to follow it.

    I try to make it as accessible as possible, by starting the post with an easy to follow example. But it’s true that the post itself (like Jeff’s) takes effort to get through. I think both are perfectly clear if you put in the effort, but it takes effort. That’s sometimes the nature of abstract discussions.

    Abstract as the discussion may be, however, the choices judges make have real-world effects, as DRJ’s example makes quite clear. (I’m sorry I got worried when she brought it up; I was afraid responding to RTO Trainer’s first comment might throw the discussion off track, but it clearly didn’t.)

    Patterico (c218bd)

  24. If I’m innocent under the letter of the law then no harm should come to me, even if the letter of the law is very different from the intent of the incompetent people who wrote it.

    But the converse does not necessarily hold. If I’m guilty under the letter of a badly written law, a court might reasonably say that no reasonable person should have expected the law to really mean what it says, and so overturn my conviction.

    Consider a law forbidding child pornography, that winds up implying that a child who takes sexual pictures of himself is a sex criminal. Idiot prosecuters have actually prosecuted children for this! Is it unreasonable for a court to say that this is so far from legislator-intent/common-understanding that the conviction should be overturned?

    LTEC (7c27aa)

  25. “The problem I have….is that somehow 21st century conservatism has become wholly defined by populist and religious tropes.”

    nishi – That is merely your interpretation of 21st century conservatism, which is by no means universal, as you well know.

    daleyrocks (1d0d98)

  26. LTEC:

    I agree that the extent of one’s devotion to the concept of textualism may depend on the nature of the law that is being examined. I am not so much invested in a blind adherence to textualism so much as I am trying to show that we cannot universally adhere to an intentionalist interpretive method in all contexts.

    Patterico (c218bd)

  27. That is why I dodn’t like the hypothetical. i had to assume a legislature full of people who are so poor at communication that they could intend something so egregiously different than what they wrote.

    So I don’t see it as rewriting the original. As you didn’t offer an example of the evidence that the judge relied upon, my answer, the legislators are incompetent or ill-educated, follows from the given situation.

    RTO Trainer (150e93)

  28. So are you are arguing that it is legitimate to apply interpretive methods other than intentionalism any time the language in question fulfills a “specialized function”?

    I’m not describing what should be or offering my own opinion, only describing what is. Have these methods not been in use for a long time in law?

    And even if you accept the “specialized function” distinction, what is the *principle* by which you justify carving out such categories of speech from the general intentionalist rule that language must be interpreted by appealing to the speaker’s intent?

    I don’t have a choice as to what I will or won’t accept–it’s history and convention. As for any “intentionalist rule,” I don’t know of any rules.

    RTO Trainer (150e93)

  29. “Because legislation and statute are specialized functions of language. I know that intent is not to be considered in interpreting contracts under the law either.”

    I’ve got to disagree here as well. Communication or language can be written or spoken. I don’t understand why different tools should be used to interpret written legislation or statutes than a blog post or newspaper article. Saying intentionalism should not apply to legal writings or statutes because [insert your reason] defeats the purpose of having a tool to analyze communication. Only use Tool 1 in communication situations A-F, Tool 2 in situations G-M, etc. and you wind up ceding control of language to the arbitrary rulemakers.

    daleyrocks (1d0d98)

  30. Textualism gives the correct meaning to the $100,000. The legislature meant $100,000 but knew that would be unpopular, so they say they meant $10,000 to avoid complaints. If the legislature really meant $10,000 they can quickly amend the text to that figure, filing papers with the courts requesting that such cases be held until the text of the law is corrected. They haven’t, therefore, they didn’t, and they are content with the law as it is written.

    Someone who writes a contract with secret meanings … is undeserving of being a party to a contract.

    htom (412a17)

  31. That is why I dodn’t like the hypothetical. i had to assume a legislature full of people who are so poor at communication that they could intend something so egregiously different than what they wrote.

    So I don’t see it as rewriting the original. As you didn’t offer an example of the evidence that the judge relied upon, my answer, the legislators are incompetent or ill-educated, follows from the given situation.

    I did offer examples. From the post:

    “But in my post, I asked readers to assume for the sake of argument that the legislature’s intent indeed really was to impose the tax on people making over $10,000. Assume that, in countless debates over several months, legislators consistently made it crystal clear that the tax was to apply to anyone making over $10,000. The evidence is not post hoc but rather contemporaneous and overwhelming. Assume that we know the addition of the extra zero was a drafting error, turning $10,000 into $100,000.”

    I asked you to make an assumption. In your answer, you refuse to make the assumption. That is your right, just as it is my right to point it out.

    That legislators may be incompetent or ill-educated, or that they might have missed a typo, really doesn’t matter to whether you choose to accept my assertion that they intended “$10,000″ in the hypo.

    Patterico (c218bd)

  32. “I’m not describing what should be or offering my own opinion, only describing what is. Have these methods not been in use for a long time in law?”

    Sure. What I am interested in, though, is people’s views on what interpretive methods should be used.

    “As for any ‘intentionalist rule,’ I don’t know of any rules.”

    I am referring to the foundational principle of intentionalism: that interpretation must appeal to the speaker’s intent.

    Patterico (c218bd)

  33. “I don’t have a choice as to what I will or won’t accept–it’s history and convention.”

    RTO – In the case of legislation, statutes or contracts, litigation is frequently chosen as a means of ultimately resolving what people will accept as well as the underlying intent of the communication.

    daleyrocks (1d0d98)

  34. The legislature meant $100,000 but knew that would be unpopular, so they say they meant $10,000 to avoid complaints. If the legislature really meant $10,000 they can quickly amend the text to that figure, filing papers with the courts requesting that such cases be held until the text of the law is corrected. They haven’t, therefore, they didn’t, and they are content with the law as it is written.

    This conclusion is at odds with the example in the post in two ways.

    First, I said that it was a drafting error. That rules out the conclusion that it was a nefarious plot to insert a different term that would be more popular.

    Second, I said that the judge can’t resort to the dodge of saying the legislature should rewrite the law, because the legislature is different now — an election having happened in the interim. So you can’t interpret what the law means based on the legislature’s current action or inaction.

    Patterico (c218bd)

  35. Well, that’s why we have Due Process and rules of statutory construction. The law has to give a reasonable person reasonable notice and a reasonable opportunity to conform his conduct to its requirements. Nobody should be convicted, or even civilly assessed, under the hypo.

    On the other hand, if your wife says: “I don’t want a Christmas present this year. Why don’t we just skip presents and make Christmas what it should be — a time for us and our family”, you darn well better buy her a damn present! 😉

    nk (db4a41)

  36. Then name me a judicial conservative who rejects originalism.

    One need not reject originalism to fail to be an originalist. I’d offer Rhenquist in this vein and certain decisions of Scalia.

    RTO Trainer (150e93)

  37. Scalia does give weight to precedent in some situations, even when he disagrees with it. It has upset me in certain instances (like Raich) but that is another discussion.

    Patterico (c218bd)

  38. I am entirely in your corner here Patterico. As a lit professor we often speak of the intentional fallacy. That is, claiming to know the mind of the author is hubris. The text is what it is and any claim otherwise is a gross distortion of the text no matter the intent.

    Dr T (8897e3)

  39. I don’t think there’s a “foundational principle” here to point at becasue there’s no ideology, or doctrine to be so supported. One either privileges the intent of the speaker or doesn’t.

    RTO Trainer (150e93)

  40. Which is to say that using legal examples is really not the best way to illustrate intelectualism because about three thousand years of law (I’m going back to the Roman Republic now) have told us how to interpret the stupid things legislatures write.

    And my wife loved all her presents my daughter picked out and promptly exchanged them. 😉

    nk (db4a41)

  41. Not intelectualism. Yikes. Intentionalism. And that was not a Freudian dig against anyone except possibly Scalia who says one thing in his lectures and does another in his opinions.

    nk (db4a41)

  42. Okay. The legislators made statements, over and over again, that they were either incompetent or ill-educated, such that they could consistently and collectively miss a typo, presumably through many versions of the bill as it went through the legislative process.

    They won’t be getting my vote in the next election.

    RTO Trainer (150e93)

  43. They won’t be getting my vote in the next election.

    OK. But what about the question posed by the post?

    Do we go with plain meaning or intent?

    Patterico (c218bd)

  44. The legislators made statements, over and over again, that they were either incompetent or ill-educated, such that they could consistently and collectively miss a typo, presumably through many versions of the bill as it went through the legislative process.

    I don’t know why you presume that. How about presuming that it said $10,000 in every version but the final one?

    Patterico (c218bd)

  45. I don’t think there’s a “foundational principle” here to point at becasue there’s no ideology, or doctrine to be so supported. One either privileges the intent of the speaker or doesn’t.

    Indeed. Which do you do, in this context?

    Patterico (c218bd)

  46. Comment by Dr T — 5/1/2010 @ 3:30 pm

    I have always taken literature as poetry and what the author writes is entirely different from what I read and that’s fine with me. But that’s not something you want when you’re not relaxing on your couch on a quiet evening.

    nk (db4a41)

  47. Which is to say that using legal examples is really not the best way to illustrate intelectualism because about three thousand years of law (I’m going back to the Roman Republic now) have told us how to interpret the stupid things legislatures write.

    Again, this appears to be an argument that the existence of convention is itself a reason to reject intentionalism.

    I’m not sure I buy that because there is a conventional meaning available for all sorts of speech.

    Patterico (c218bd)

  48. Presidents should refuse to sign poorly written laws, because his/her signature carries a huge weight of endorsement.
    I realize they sign tons of stuff, but the staff needs to be the absolute best and they need to catch that. The legislative staff needs to not send bills for signing that has mistakes.
    OK
    Something slipped through.
    The new legislature and President need to rectify the poorly written law.
    But I have to go with what is written and signed if I have to decide in court.
    But as a judge I’d try to apply wisdom and do everything possible under the rules to ensure the governments ineptitude did not hurt the citizen in front of me.
    I’d follow the written range of consequences and would reach for the minimum.

    Unfortunately as a judge, I may not be wise enough and can *bleep* up the system..

    But when we head off into intent of the founders on terms like “commerce” or anything else that is written into law and is challenged as vague; or at odds with intent… intent as shown by all the writings and meetings and speeches that went into the ratification of the constitution, as a society we fall back of our wisest and most intellectually honest. People like Roberts, Scalia, Sotomayor, Stevens etc hash it out.
    This process is subverted by parties in power defining intellectually dishonest, political partisans as “wise” and then appointing them to lifelong positions.

    Steve G (7d4c78)

  49. I am entirely in your corner here Patterico. As a lit professor we often speak of the intentional fallacy. That is, claiming to know the mind of the author is hubris. The text is what it is and any claim otherwise is a gross distortion of the text no matter the intent.

    I can’t agree in every instance. For example, you and I could privately agree to speak in code — and what we said would “mean” what we had agreed it would mean, regardless of what the words actually said in their plain meaning.

    Context is important to all interpretive questions. Just as you can’t always appeal to authorial intent (as this post demonstrates), you can’t always simply appeal to plain text either.

    Patterico (c218bd)

  50. All speech is perfectly conventional and arbitrary. The word “fire” does not burn or hiss or pour out smoke. ?

    nk (db4a41)

  51. Do we go with plain meaning or intent?

    I think the judge was wrong in his assessment of the intent. The legislature is incompetent and as such can’t really know what they intended, despite their statements. The judge is wrong to ascribe competence.

    RTO Trainer (150e93)

  52. I think the judge was wrong in his assessment of the intent. The legislature is incompetent and as such can’t really know what they intended, despite their statements.

    You persistently refuse to accept the assumptions of the hypothetical. The hypothetical asks you to take it for granted that the judge was correct regarding the legislature’s intent. You really don’t seem to want to answer the hypo under that assumed fact.

    Patterico (c218bd)

  53. The judge was wrong. But not because of what RTO said. There is a presumption that the legislature did not intend an injustice. And, another, that if the law is punitive the interpretation that punishes least is what was intended. And, finally, that the legislature is sane, conscientious and know what to read what they wrote.

    nk (db4a41)

  54. I don’t know why you presume that. How about presuming that it said $10,000 in every version but the final one?

    It’s okay then for you to rewrite the hypothetical, but not me. Cool. Now I know the rules (until you change them).

    If that’s the case then there are other factors at play. The defendent had ample opportunity to know the intent and it now appears to me that he was simply making an attempt to take advantage of a typo. He’s not quite the victim made out to be. Failure on his part to be aware of the actions of the legislature that will impact his business surely isn’t a defense, is it?

    The legislature has a duty to apply some remedy to the text so that it properly signifies their intent, now that they know about it.

    RTO Trainer (150e93)

  55. As an administrrative law judge, by error, both another ALJ and I were assigned to hear the same case on different days.

    The Appellant’s attorney, seeing an opportunity, did not tell the docketing clerk or either judge about the duplicate hearings. He was hoping to get two different opinions.

    However, although the other judge was as liberal as I was conservative, the law was plain and we both rendered the same decision against his client. The attorney took the case to the New York State Supreme Court where the sitting judge ignored the plain text language of the law and went to the legislative record of the negotiations about the proposed law.

    The judge picked out an idea that was mentioned by one of the legislators but was never discussed by the legislators or made part of the final bill.

    Here we have a judge who ignored both the plain text of the law as well as legislative intent. When I retired, the matter was still working its way through the courts.

    The old common law rule that if a law was not clear on it’s face, the court should find it void is still the best solution. Let the legislature try again. Anything else can corrupt the judicial process.

    Longwalker (996c34)

  56. It’s okay then for you to rewrite the hypothetical, but not me. Cool. Now I know the rules (until you change them).

    Your sarcasm is noted and misplaced. Let me remind you once again what I said in my post:

    But in my post, I asked readers to assume for the sake of argument that the legislature’s intent indeed really was to impose the tax on people making over $10,000. Assume that, in countless debates over several months, legislators consistently made it crystal clear that the tax was to apply to anyone making over $10,000. The evidence is not post hoc but rather contemporaneous and overwhelming. Assume that we know the addition of the extra zero was a drafting error, turning $10,000 into $100,000.

    If we assume (as you ask us to) that every version of the bill said $100,000, that would fly in the face of the post’s statement that the legislators consistently made it very clear that the tax was to apply to people making over $10,000.

    If we assume (as I asked you to in a comment) that every version of the bill said $10,000, that would be consistent with the post’s assumptions that the intent was clear all along.

    Your comments are simply trying to evade the assumption I asked you to accept: that the legislature’s intent was clear. If you import a new assumption on previous drafts that contradicts the post’s assumptions on intent, you are rewriting my hypothetical to make it easier to stick with the intentionalism perspective. If I ask you instead to make an assumption that on previous drafts that is consistent with the post’s assumptions on intent, then I am not rewriting the hypothetical.

    Patterico (c218bd)

  57. If that’s the case then there are other factors at play. The defendent had ample opportunity to know the intent and it now appears to me that he was simply making an attempt to take advantage of a typo. He’s not quite the victim made out to be. Failure on his part to be aware of the actions of the legislature that will impact his business surely isn’t a defense, is it?

    The legislature has a duty to apply some remedy to the text so that it properly signifies their intent, now that they know about it.

    I really think you need to go back and read the post, because it explicitly addresses the last argument you made:

    Assume further that the judge can’t just tell them to go back and rewrite the statute, because in the meantime there has been an election and the legislature is composed of different legislators. The judge is tasked with determining what the law meant, and there is no way to dodge that task.

    It’s tough to confront the hypo in the post as written and maintain that the intentionalist view is always right.

    And you clearly are reluctant to confront the hypo in the post as written.

    Patterico (c218bd)

  58. The defendent had ample opportunity to know the intent and it now appears to me that he was simply making an attempt to take advantage of a typo. He’s not quite the victim made out to be. Failure on his part to be aware of the actions of the legislature that will impact his business surely isn’t a defense, is it?

    I simply disagree with the notion that every citizen is responsible for familiarity with committee reports, floor debates, and draft legislation of every bill that might affect them.

    As Justice Scalia has said:

    “It may well be true that in most cases the proposition that the words of the United States Code or the Statutes At Large give adequate notice to the citizen is something of a fiction, albeit one required in any system of law; but necessary fiction descends to needless farce when the public is charged even with knowledge of Committee Reports.”

    To that I say: Amen.

    Patterico (c218bd)

  59. Why can’t the judge rule that it’s unconstitutionally vague given the totality of the circumstances, void the statute and let the new legislature start over? Is the new legislature somehow enjoined from altering the statutes of past legislatures?

    Not that I think he should. If this is a typo, as you have altered the deal, he should go with the intent. The defendant is just being a dirty opportunist taking advantage of a typo.

    RTO Trainer (150e93)

  60. Assume that we know the addition of the extra zero was a drafting error, turning $10,000 into $100,000

    Do we know this was a drafting error (typo) based on evidence?

    If so, then the ruling should be it WAS an error. Because to look at a proven typo and to take it literally and contrary to evidence is to privilege one’s own intent.

    Example: years and years ago I went to my ATM to withdraw $20 and found on the receipt that the balance in my checking account had gone up by $12,000. Yes, twelve thousand dollars.

    Obvious error by BofA…but I thought I’d just let it be and see how long it would take for them to discover. According to my monthly statements, *I* only had 30 days in which to notify them of any errors *I* found in my account then BofA would no longer correct any errors.

    34 days later the $12,000 was gone and I got a very nasty phone call from them vaguely threatening me – they could have charged me with “stealing” since I didn’t notify them. However, I pointed out to them they put it in my account and I never touched the balance. If my account was $12,000 richer after the 30 day timelimit, why shouldn’t I assume by plainly looking at my statement that the $12,000 was not meant for me? BofA did not intend to put $12,000 in my account, but there it was.

    Darleen Click (fe8e8e)

  61. I simply disagree with the notion that every citizen is responsible for familiarity with committee reports, floor debates, and draft legislation of every bill that might affect them.

    To that extent, perhaps. But to the extent that they should be aware of what issues are being considered and familiar with the broad outlines of them? Which should be sufficient here, especially given all those public statements by legislators as to their intent.

    RTO Trainer (150e93)

  62. 59.Why can’t the judge rule that it’s unconstitutionally vague given the totality of the circumstances, void the statute and let the new legislature start over?

    That’s what happens in First Amendment cases and I have never understood why the right to speak is more important than the right to stay out of prison.

    nk (db4a41)

  63. And you clearly are reluctant to confront the hypo in the post as written.

    Not at all. Unless “As written” also precludes extrapolating unknown data from known data.

    RTO Trainer (150e93)

  64. If so, then the ruling should be it WAS an error. Because to look at a proven typo and to take it literally and contrary to evidence is to privilege one’s own intent.

    So you’re OK with paying a tax that, as written, has no application to you?

    What if the law includes penalties for nonpayment of the tax? Would you also be OK with paying penalties for nonpayment of that tax that you had no idea applied to you?

    Patterico (c218bd)

  65. Not at all. Unless “As written” also precludes extrapolating unknown data from known data.

    It does, when extrapolating the unknown data causes you to discard an assumption that the post asks you to accept.

    Once again: I am asking you to ASSUME that the court was right, and the legislators INTENDED the tax to apply to people making over $10,000. As written, the law applied to people making over $100,000.

    You make $50,000 a year. Should the tax be interpreted to apply to you, or not?

    Patterico (c218bd)

  66. No idea? If that’s true it’d be my own fault. Sorry, but I expect people to have a basic interest in the operating of their government. No sympathy from me unless the law was passed in secret.

    And according to the hypothetical, it was not.

    RTO Trainer (150e93)

  67. Oh. I see you answered it:

    “Not that I think he should. If this is a typo, as you have altered the deal, he should go with the intent. The defendant is just being a dirty opportunist taking advantage of a typo.”

    No, in the hypo he doesn’t pay the tax because the plain terms do not apply to him. There is no indication that he knew it was supposed to.

    What if he didn’t know? What if there were penalties for nonpayment? Should he be responsible for those penalties? Even though the plain language of the statute has no application to him?

    Patterico (c218bd)

  68. Asked and answered @59.

    If this is a typo, as you have altered the deal, he should go with the intent. The defendant is just being a dirty opportunist taking advantage of a typo.

    BTW, if as you have just written, I must assume that the court was right, I have no coice but to accept that the tax be interpreted to apply to me.

    RTO Trainer (150e93)

  69. No idea? If that’s true it’d be my own fault. Sorry, but I expect people to have a basic interest in the operating of their government. No sympathy from me unless the law was passed in secret.

    And according to the hypothetical, it was not.

    So, unlike Scalia, you would hold citizens responsible, not just for knowing the plain language of the law, but also all background information shedding light on legislative intent — even when that intent flies in the face of the plain language of the law?

    Would you be OK with penalizing them with fines for nonpayment of the tax — if they were unfamiliar with that underlying evidence of intent that undercut the law’s plain language?

    Patterico (c218bd)

  70. First, I said that it was a drafting error. That rules out the conclusion that it was a nefarious plot to insert a different term that would be more popular.

    Second, I said that the judge can’t resort to the dodge of saying the legislature should rewrite the law, because the legislature is different now — an election having happened in the interim. So you can’t interpret what the law means based on the legislature’s current action or inaction.

    I understand that it’s your hypothetical, but you cannot reasonably claim it’s a drafting error; that’s inferring someone else’s intent from previous speech. You may believe it, or hope it; here you’ve stipulated it. The legislature could have made that claim. Maybe it was an actual error, but there is no way for us to know this. If it’s an error, the current legislature corrects it, and the case evaporates. Those already convicted … I’m not a lawyer; is there a procedure for dealing with these? (Inquiring mind wants to know, but doubts that there is.)

    The judge can refuse to enforce the law as written, I suppose, setting aside a conviction as contrary to the meaning of the law or some such, giving those first convicted a double jeopardy pass while the current or the next legislature makes a better law (judicial nullification?) This might be a kind of “rough justice”, but probably would be very unpopular with everyone but the defendant, who would still have the costs of his defense, so she wouldn’t be happy either. All lose.

    htom (412a17)

  71. There is no indication that he knew it was supposed to.

    So what? It’s his own fault that he didn’t know given all the public statements of the legislators. Even absent that I think people have a duty to know what their government is doing. One need not follow committee reports to know that.

    RTO Trainer (150e93)

  72. I understand that it’s your hypothetical, but you cannot reasonably claim it’s a drafting error; that’s inferring someone else’s intent from previous speech. You may believe it, or hope it; here you’ve stipulated it. The legislature could have made that claim. Maybe it was an actual error, but there is no way for us to know this.

    Sure there is. It’s a hypothetical and I have told you it is so.

    If it’s an error, the current legislature corrects it, and the case evaporates.

    As I already explained to you once, that “out” is not available because I ruled it out in the post. There are new legislators and there is no political will to revisit the issue either way. No matter; the law is on the books and must be interpreted.

    Like you said, it’s my hypothetical. You don’t have to answer it — some people just don’t like hypotheticals — but you shouldn’t change it and then claim to have answered it.

    The judge can refuse to enforce the law as written, I suppose, setting aside a conviction as contrary to the meaning of the law or some such, giving those first convicted a double jeopardy pass while the current or the next legislature makes a better law (judicial nullification?)

    I don’t follow. There is no conviction here if the law is enforced as written.

    Patterico (c218bd)

  73. I’m sure I’m missing something here, whether that is because I’m not a lawyer or for some other reason.

    If the law has unambiguous wording, it means what it says. If the unambiguous wording is not what was intended or is incorrect because of a typo, it is at it stand until it is corrected in the proper way, which for a law is to rewrite the law.
    In every other aspect of life, the words mean what they mean unless officially corrected in the accepted way. A doctor writes a medication order in a chart at the hospital, the nurse calls it in to the pharmacy, the pharmecy delivers it to the floor, the nurse on the floor gives it. In practice, the nurse and pharmacist are responsible to check the order against the recommended use of the medication. If there is no obvious error, the medicine will be given as ordered, whether or not that was the doctor’s “intention”. At any point along the way if a nurse or pharmacist thinks there is a mistake, the way to correct it, and the only way to correct it, is to go back to the source (or a representative of the source) and get it corrected so the process as described can be implimented.

    This is the same for a engineer with technical drawings or instructions, a computer programer, a head chef.

    If the law was written and signed other than what was intended, fix it, and consider firing the people responsible, including at the ballot box. They have no business passing a law and signing it when they don’t know what it says (not knowing the unintended consequences is bad enough), any more than a doctor has of ordering a medication he doesn’t know.

    Now, if the doctor writes for “Whatever is the hospital formulary drug for reflux esophagitis”, that is ambiguous, and the nurse and pharmacist would need to decide if they know enough to judge the doc’s intent or not. They would say no, because that is to broad. If the doc says “Use what is on the hospital formulary for acid-pump inhibitors after you do a computer check on drug interactions”, well the intent is better understood, but I bet the nurse and pharmacist will call and check anyway.

    So, if the law says 10,000 it means $10,000 until changed. Whether there would be a situation where that decision would cause harm and needs to have something done before the legislature returns to session, I’ll leave to you.

    But in something such as what does it mean for the fed govt. to establish a religion or not, I’m not sure where it fits, and I think it is reasonable to ask what evidence is there for what that is supposed to mean. I think inherently to “establish a religion” is more ambiguous than to say a complete stop at a stop sign.

    MD in Philly (0f793a)

  74. What if the legislature intended to offer a $10,000 rebate to anyone making under $10,000 and instead made a mistake and wrote “over $10,000″ and then the President signed it?
    My guess is that I’d never get the money.

    Your hypo is one where Joe Citizen gets his/her butt ground under the slow wheels of justice.

    The other thing about the hypo is that it is one that encourages judges to go on a walkabout searching for a way to do justice rather than have to slam a gavel on an obviously flawed law.

    I know you are looking for a different perspective from your hypo, but personally, I’d just pay up and not fight it. I can’t afford to fight the government over that amount

    Steve G (7d4c78)

  75. If the law has unambiguous wording, it means what it says. If the unambiguous wording is not what was intended or is incorrect because of a typo, it is at it stand until it is corrected in the proper way, which for a law is to rewrite the law.

    I think the hypo is exposing the divide between the intentionalists and the rest of us. I agree with you, MD in Philly, that in this context the law must mean what it says.

    From the intentionalist side, we have Darleen and RTO Trainer saying that the judge is entitled to ignore the plain language of the law ($100,000 means $100,000) and interpret it in accordance with legislative intent ($100,000 means $10,000).

    I haven’t seen Jeff Goldstein weigh in on the particular hypothetical — like RTO Trainer’s initial comments here, Jeff’s comments on my previous post addressed a different question than the one I was asking — but the reasoning of his latest post suggests to me that he too would say the proper interpretation is the one that lines up with legislative intent, even undisclosed legislative intent.

    Justice Scalia and I (and apparently you, MD in Philly, and most people I know who engage in legal interpretation) believe that unambiguous plain language in a statute cannot be interpreted in a way that contravenes the plain meaning of the words used.

    The intentionalists believe otherwise.

    I think this approach is unworkable when it comes to interpreting laws.

    Patterico (c218bd)

  76. What we see in ‘intentionalism’ vs ‘textualism’ is the very sort of difference in law at multiple levels of jurisdiction as seen in the time of Bracton. This part from relatively early on is telling in our modern views reflecting this prior conception of law:

    [010] Though in almost all lands use is made of the leges and the jus scriptum, England
    [011] alone uses unwritten law and custom. There law derives from nothing written [but]
    [012] from what usage has approved.4 Nevertheless, 5it will not be absurd to call English
    [013] laws leges, though they are unwritten, since whatever has been rightly decided and
    [014] approved with the counsel and consent of the magnates and the general agreement
    [015] of the res publica,6 the authority of the king or prince having first been added
    [016] thereto,7 has the force of law.8 9England has as well many local customs, varying
    [017] from place to place, for the English have many things by custom which they do
    [018] not have by law, as in the various counties, cities, boroughs and vills, where it will
    [019] always be necessary to learn what the custom of the place is and how those who
    [020] allege it use it.

    During that era a judge would need to differentiate between multiple jurisdictions and could be called in on a case in which the written law had been decided differently than in other areas… or there existed no written law but a series of local decisions that was the equivalent of such law.

    Do note that ‘intentionalism’ on the written side was not a consideration: prior judgments were the guiding factor for such laws.

    Unwritten laws, either via the written judgments or via local use of customary law (that law which is based on custom and not upon script), has its own domain in which such laws are well known and established within their locale and England is notable for having much of that going for it.

    National law, that law which applies to everyone, was seen as being those concepts held widely across the Nation and any King (or Parliament) wishing to establish such law for the Nation must take into consideration not just scripted law but the unwritten or customary law as well. National law could not have ‘intentionalism’ attached to it in that framework as it must be the scripted law that establishes a single, uniform law across all jurisdictions and it was unreasonable to expect all citizens to know an unwritten intent by those at the National level.

    At the other end of the scale intentionalism via the unwritten law was considered as the force for law, and judges were expected to be guided by prior findings to establish uniformity of judgment.

    From this we then find that ‘intentionalism’ in the modern era is a distinct attempt to re-order all National law into an unwritten law that all citizens cannot know. We have much of that in the Federal Regulations (not just the FAR but also in all other regulations that have criminal processes attached to them for punishment of transgression). There have been a few recent judgments in which federal regulations and the language from Congress has been so vague that the Courts have tossed them out: Congress by being unable to say, exactly, what it wants leaves too much leeway to interpretation and the expectation of a citizen reading a law to actually know what it is about has been lost.

    What is fine at the local and community level (parish or county) is unfeasible and unworkable when you go to the next higher level of organization: you cannot live by intent after a certain population and coverage area are reached. Scripted law is meant to eliminate vagueness and impart precision to the law so all citizens can understand the meaning of it from the law itself. Do we really want citizens to be forced to listen to tens or hundreds of hours of Congressional hearings to try and divine intent? That is unreasonable on its face and creates a system of living in an indeterminate situation for anything you do in life because the ‘intent’ of what the lawmakers want must be determined for everything you do before you do it.

    ajacksonian (87eccd)

  77. Do we really want citizens to be forced to listen to tens or hundreds of hours of Congressional hearings to try and divine intent? That is unreasonable on its face and creates a system of living in an indeterminate situation for anything you do in life because the ‘intent’ of what the lawmakers want must be determined for everything you do before you do it.

    I completely agree. It’s bad enough that there are so many laws on the books, but requiring citizens to divine unexpressed intent as well seems to me to be, as you say, “unreasonable on its face.”

    Patterico (c218bd)

  78. Pat

    I dealing with your post’s hypo — a judge could and should find that the 100,000 is a typo and still invalidate the statute on its face because published law should be clear. Kick it back to the legislature and not hold citizens liable for the legislature’s failure to clearly write the law.

    Just because a judge should hold that the 100,000 is a valid error doesn’t let the legislature off the hook.

    Darleen Click (fe8e8e)

  79. Patterico

    If the 100,000 is a typo then “plain language” cannot apply anymore then I could claim to keep the extra $12,000 in my bank account JUST BECAUSE it was there.

    An error is just an error.

    Darleen Click (fe8e8e)

  80. Scripted law is meant to eliminate vagueness and impart precision to the law so all citizens can understand the meaning of it from the law itself.

    Agreed.

    However, what happens if the printers make an error in the publishing? Does that constitute a new law to be read as “plain language” or do we just recall all the inerror copies and reissue newly corrected ones and hold harmless anyone that followed the inerror copy?

    IMHO the issues isn’t intentionalism v plain language but the high standards and exacting language required by law is different than how language itself works (even as they overlap at times)

    Darleen Click (fe8e8e)

  81. 4th para above the P.S.: Shouldn’t the language in “front of your nose” be “100,000” not “10,000”?

    Robert (9b1fdd)

  82. Robert: indeed, and I just changed it.

    Interestingly enough, the typo you identified is a good example of one where even Justice Scalia himself would interpret $10,000 as $100,000. In his book, he explains that a clear scrivener’s error (a typo) can be treated as such if the speaker’s intent is clear from the context of the surrounding writing. That was the case in the post, and so even before my correction, a textualist could interpret my typo for what it was.

    Which is to say: a textualist is not unbending and insensitive to context and the possibility of typos. He merely requires that the context be clear from the text itself.

    Patterico (c218bd)

  83. a textualist is not unbending and insensitive to context and the possibility of typos.

    then s/he is engaging in figuring out the intent behind the signs – what is trying to be communicated.

    Darleen Click (fe8e8e)

  84. I myself have always inclined to originalism and textualism, but sometimes you have to ask the speaker/writer what his intent is. For example, when some argue that something is “constitutional” or “unconstitutional,” there appear to be three possible meanings: 1. what the Constitution itself says; 2. what Supreme Court precedents have interpreted it to mean; 3. which way one expects five of nine Justices to rule….

    Robert (9b1fdd)

  85. If I am guilty of conflating very different points, apologies.

    I am loving the prospect of watching various federal judges striking down the Arizona immigration law on grounds that the language is overly broad. What makes this particularly relevant is that both the Arizona legislature and its Governor have bent over backwards in all speeches to insist that no portion of the act was intended to run afoul of basic search protections.

    So, what we will have, is judges who will ignore the clearest intent imaginable, because of the limitations of the written word. Neat little trick for the usual and customary “living law” types, eh?

    Ed from SFV (f0e1cb)

  86. And yet, Ed, if the language of the law runs afoul of the Constitution (I don’t think it does, but assume it does for the sake of argument), I don’t think it *should* matter that legislators didn’t “intend” it to be unconstitutional.

    Patterico (c218bd)

  87. Intent should be secondary to the plain text.

    Yes, there are situations where ambiguity in the law requires going into legislative intent.

    But once precedent is set, courts should stick to precedent.

    Secret Squirrel (6a1582)

  88. Yes, Pat, if there is a clear, direct, issue with a right(s), of course it should be struck down. But here will be a case where “overly broad” will be used. This is a highly subjective standard and it bears almost no relation to any known facts.

    It is the greatest weapon the judicial activists, liberals, and progressives, have used to the detriment of our republic for decades.

    But I cannot recall such an immediate amendment to a law like this. To me, this is the all-time clearest instance of doubling down of intent by a state.

    Ed from SFV (f0e1cb)

  89. But once precedent is set, courts should stick to precedent

    even if the precedent is in error?

    Darleen Click (fe8e8e)

  90. So, unlike Scalia, you would hold citizens responsible, not just for knowing the plain language of the law, but also all background information shedding light on legislative intent — even when that intent flies in the face of the plain language of the law?

    I’ve stated twice that I would agree that the general citizen need not be conversant with every detail of the legislative process, only a broad familiarity.

    And in the hypothetical, as amended by you, the legislators had made many public statements as to the intent of this legislation. I would expect the general citizen to be aware of that.

    RTO Trainer (150e93)

  91. I think the proper solution given all the constraints is that someone would dispute the accuracy of the law, giving evidence that there really is a typo or other patent error in publication that should be corrected. To avoid injustice, enforcement under the corrected terms would be delayed until people had a reasonable time to adjust to the correction.

    I’ll bet most governments actually have a published policy on what will be done to address an error like this. In that case, just follow the rule that specifies how to handle it.

    To extrapolate back to more general interpretation, I favor the textualism approach unless there is overwhelming evidence of a distortion caused by an “error” such as that in the hypothetical example.

    To preserve our ideal of a nation of laws, not men, we should try to anticipate such circumstances and agree upon rules in advance, so it isn’t just an intuitive tug of war when this comes up.

    Ken in Camarillo (645bed)

  92. I dealing with your post’s hypo — a judge could and should find that the 100,000 is a typo and still invalidate the statute on its face because published law should be clear.

    I think that’s not very far from what I’m saying: a judge could find the legislature intended one thing, but refuse to interpret the law so as to give effect to that intent — because to do so would fail to notify citizens with clarity what conduct is required of them.

    Which means that you don’t always believe in interpreting language in a way that gives effect to the speaker’s intent.

    Patterico (c218bd)

  93. And in the hypothetical, as amended by you, the legislators had made many public statements as to the intent of this legislation. I would expect the general citizen to be aware of that.

    And I, like ajacksonian above, reject that position. There are so many laws, and so many possible venues for the expression of legislative intent, that to require the average hardworking citizen to be aware of all of it is (in my mind) utterly untenable.

    So, we’ll just have to disagree on that one.

    Patterico (c218bd)

  94. Would you be OK with penalizing them with fines for nonpayment of the tax — if they were unfamiliar with that underlying evidence of intent that undercut the law’s plain language?

    Yes.

    RTO Trainer (150e93)

  95. People hear what they want/expect to hear and not the other way around.

    nk (db4a41)

  96. I completely agree. It’s bad enough that there are so many laws on the books, but requiring citizens to divine unexpressed intent as well seems to me to be, as you say, “unreasonable on its face.”

    So you’ve changed the hypothetical again?

    RTO Trainer (150e93)

  97. When I say “unexpressed” I mean in the actual operative language of the statute.

    As I have said many times, I think it’s utterly untenable to require citizens to keep up with expressions of legislative intent that aren’t written into law.

    Patterico (c218bd)

  98. So, we’ll just have to disagree on that one.

    So ignorance of the law is an excuse?

    Or is there anunderlying hostility to republican government?

    RTO Trainer (150e93)

  99. So ignorance of the law is an excuse?

    Or is there anunderlying hostility to republican government?

    Ignorance of the law is no excuse.

    However, I consider “the law” to be what is written.

    As for your second question, I don’t know what you mean. How much more clear can I be that I believe the rule of law requires statutes to be clear? Why in the world would that suggest a hostility to a republican form of government?

    I think if you’re going to make an insinuation like that, you’re going to have to back it up with some kind of argument.

    Patterico (c218bd)

  100. There’s more to the expression of intent than actual operative language.

    If that’s untenable, then the foundation of republicanism is also untenable.

    RTO Trainer (150e93)

  101. “There’s more to the expression of intent than actual operative language.”

    RTO – Is there more to our laws than the actual operative language?

    daleyrocks (1d0d98)

  102. What “insinuation?” No less than Alexander Hamilton was not a fan of republicanism. I serve with an NCO who is a monarchist and thinks less of George Washington for refusing to be King.

    RTO Trainer (150e93)

  103. RTO – Is there more to our laws than the actual operative language?

    Yes. Beyond question.

    RTO Trainer (150e93)

  104. “Yes. Beyond question.”

    There’s the rub.

    daleyrocks (1d0d98)

  105. Which means that you don’t always believe in interpreting language in a way that gives effect to the speaker’s intent.

    Not so, Pat. Acknowledging the speakers intent doesn’t obligate my behavior in acting on that intent.

    IF the judge has discretion, s/he will acknowledge the error while holding others that relied on that error harmless … or give them time to comply.

    You’ve never addressed my BofA error example, so here’s another one.

    I once worked as Exec Secretary to the VP of Loan Servicing for American Savings & Loan in the early 1970’s. We serviced thousands of VA/FHA loans. Many of those loan holders were too poor to have checking accounts so they often paid their mortgages with money orders.

    One major money order company went bankrupt and most of the money orders we received were not honored. It was quite the scandal and although the people did indeed intend to pay their mortgages and the bankruptcy was through no fault of their own, they still owed the payment(s).

    Yes, we worked with these people to spread out the owed money over several months, but they still had to pay it.

    If a tax law goes out with a typo that citizens rely on that typo, the citizens still owe the tax (if the judge doesn’t have discretion). The judge should make provisions so the repayment is not onerous or punitive, but the taxes ARE owed.

    Darleen Click (fe8e8e)

  106. I’ve joined the party kinda late, but it seems that the reconciling conclusion here is that in legislative instances, the rule of law demands that legislative text be treated as legislative intent until new legislative text revises/clarifies it. Since we are bound by the very nature of our task to choose some signal in ascertaining meaning, might we not as well choose written language over spoken language when the two conflict? Both are signals, intended to communicate meaning – is it not in keeping with intentionalism to have a preference for certain signals over others in certain contexts?

    It seems that Goldstein is arguing that the act of choosing, as an interpretive audience, between one signifier of intent and another – that is, choosing to privilege written language over spoken language – somehow hijacks the intent of the speaker/writer, by allowing the audience to select an interpretation which may be more in line with their own preferences. But what choice does an interpretive audience have, but to choose one or the other, and would it be any better to take the opposite path?

    Leviticus (30ac20)

  107. Put another way, is it wrong (from an intentionalist perspective) to have a hierarchy of signifiers? Because that’s what a proper textualist is, to my mind – an intentionalist with written language at the top of his interpretive hierarchy?

    I mean, would Goldstein argue that all signifiers are created equal, even when they conflict? Would an intentionalist call it an honest misunderstanding when a rapist tries to justify his actions by appealing to a victim’s body language or dress as indicative of an intent to copulate, in lieu of spoken language to the contrary? If not, does that not privilege one type of signifier over another? Or am I missing something?

    Leviticus (30ac20)


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