One problem for those who believe legislative intent is paramount when interpreting the text of a law: how do you go about ascertaining intent?
Pretend that 219 people voted in favor of a law. The law is a comprehensive health bill that runs hundreds of pages in length. One provision among those hundreds of pages says: “Nothing in this law requires insurance companies to provide coverage to children with pre-existing conditions.”
Now assume that we obtain mind-reading devices, which allow us to ascertain with absolute certainty the intent of the people who passed the law regarding this provision — and it breaks down this way:
- 22 people voting for the law thought they were requiring companies to provide coverage to children with pre-existing conditions — the exact opposite of what the text appears to say, when read by most reasonable people.
- 21 people voting for the law said that the only reason they voted for the law was because they managed to secure this provision, which they understood as allowing insurance companies to deny coverage to children with pre-existing conditions. Most reasonable people would read the text the same way as these 21 people.
- 176 people voting for the law didn’t read it. If you ask them after the fact what they would have thought the law meant if they read it, 56 would have said it requires insurance companies to provide coverage to children with pre-existing conditions, 57 would have said it doesn’t, and 63 would have had no opinion. But all 176 lacked an opinion on the issue at the moment they voted, because they had no idea the issue existed.
So: what should a judge find to be the legislative intent?
Do we go with what a majority of people voting for the law thought it meant? We can’t even get a majority of lawmakers who even read it.
Do we look at only the group that actually read the provision? There are 43 of those, and a bare majority of those intended the law to do precisely what the text (as interpreted by a reasonable reader) says the law doesn’t do. Do we go with that majority?
What about the 21 people who thought they had negotiated a provision that allows insurance companies to deny coverage to children with pre-existing conditions? Does their intent matter? Does the change they negotiated in the text matter?
What if, without the support of those 21 people, the law wouldn’t have passed? Do we get to look at their intent and count their “yes” vote for the law as a “no” vote?
You can quickly see how, even in a theoretical world where we know every lawmaker’s intent with certainty, the task of defining a single “intent” for this provision is unworkable.
And we don’t live in that theoretical world. In this world, lawmakers toss expressions of intent into the Congressional Record and into committee reports and the like, to load the dice as to later interpretations of the law — even when they know their expressions of intent are not necessarily reflective of the body as a whole.
When the text is clear, a judge ought not to have to weigh those expressions of intent and try to determine whether they are genuine.
When the text is clear, a judge ought to be able to say: the text of the law is clear. It says what it says. Trying to discern an unexpressed intent of the legislature is a fool’s errand.
In other words, a judge ought to be able to treat the text as the final word on intent, if the text is clear — even if the text may not really be the final word on intent.
Because legislation is all about compromise — and compromise takes place through alterations of the text, not by horse-trading in the currency of unexpressed intent. When you’re dealing with a body of people, and trying to interpret their finished product, the only legitimate basis for evaluating what they agreed to is the text.
Any other solution, in my view, is not workable.
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.