Patterico's Pontifications

5/5/2010

Why Legislative Interpretation Must Begin And End With the Text — When the Text Is Clear

Filed under: General — Patterico @ 11:52 pm



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.

34 Responses to “Why Legislative Interpretation Must Begin And End With the Text — When the Text Is Clear”

  1. Even stipulating that when the text is clear, the text of the law trumps ‘intent’, you still need a backup plan for when the text is unclear or, perhaps, inconsistent or contradictory… and lacking a better suggestion, I’m okay with trying to infer intent even if doing so is as potentially difficult as per your example. What’s the alternative, having a judge rule the entire legislation void because there’s a disagreement over the definition of a particular section of text?

    Don’t know if this was brought up in other posts, but this seems somewhat analogous to your posts on how the intent of a speaker should influence the extent to which someone can take offense at a comment made by the speaker. In both cases, you can have huge differences between what someone was intending to do and what they actually said/passed. If you default to using intent as the guide to interpreting someone’s comments as racist or not, why not use the same standard in interpreting legislation?

    steve sturm (369bc6)

  2. The other problem to me – with intentionalism – is the passage of time – the cultural, economic and international climate that the original legislation was passed may have drastically changed – this leaves any law open to “new” interpretations

    EricPWJohnson (554c4e)

  3. Look, in contracts, what you sign is what you get. It should be the same in laws.

    This intentionalism stuff, seems to be leaking in to religious debate and the theology of some (Like, ‘Blessed are the cheesemakers?’ ‘No it is a metaphor for all makers of dairy products!’)

    MunDane (54a83b)

  4. There is no excuse for a law maker to vote on a bill he hasn’t read. Would anyone sign a legal document without reading it? How can you cast a vote on behalf of your constituents if you haven’t read the legislation?

    Although clarity of language should be essential, somehow I think it is not. Law makers often hold their noses and vote as their party tells them, knowing it will displease their constituents. They don’t always want clarity. Also, legislators spend too much time talking and not enough reading and writing Law.

    Most major bills are crafted be staffers with “support” from outside groups. Lobbyists write letters to multiple legislators, asking for access to the drafting of “language”. When the bill is finalized, it contains many of these outsider written paragraphs no one but the staffers have even read.

    arch (24f4f2)

  5. Re: #2
    Look no further than the gun control movement, with their “the Second Amendment was written during a time of flintlock rifles; now there are Uzis” argument.

    Icy Texan (ee62c3)

  6. The example that you gave seems to be clear. If someone misreads it or refuses to read it, then it is their fault. A law can only be what it is written to say.

    If two segments of a law are contradictory, then we cannot say which part of the law is valid and which part of the law should be ignored. The law should be nullified and sent back to the legislature for rewriting. As an example, one section requires a particular set of actions, while another section makes those same actions illegal.

    On the other hand, consider the health care bill which forbade Congress from having private insurance (or being part of the curren Health Insurance plan), while pushing off the public plan that Congress is mandated to use for four years. While this is a contradiciton in a way, both sections can be implimented and are not mutually exclusive.

    Sabba Hillel (dd522e)

  7. Why does Dred Scott come to mind when talking able ruling by intent ?

    Neo (7830e6)

  8. To a certain extent, it should depend on the area of law.

    It has been common practice for the Joint Committee on Taxation to release a report on tax bills containing a description of the issue, the solution intended, and a rationale for method of implementation.

    This summary is often consulted in writing regulations and in administrative proceedings, including revenue rulings, revenue procedures and Tax Court decisions. Each of those is entitled to varying levels of deference in appellate review.

    Now, I agree that it would be great if we could just enact those reports as law. It would really cut down on the hassle of having to interpret the Internal Revenue Code. The downside, of course, is that we would no longer have a Code. We would have a series of uncodified laws, each of which modifies in part at least one of the prior laws.

    The reason that the bills become so unreadable is to make the code itself legible. If you want to know what the rules are, you simply look at the currently enacted code, as amended by multiple bills.

    If there is a problem translating the plain(er) text into the code modifications (and there is every other year), Congress passes a technical corrections bill to correct the most obvious errors.

    We all know that if we want to find evidence of corruption (or, less confrontationally, special treatment), we don’t check the code first–we look in uncodified private laws (or simply the provisions of the bills that do not make changes to the code). The codification process makes the law–not the bills–more transparent.

    I agree that there are more significant issues when a bill is created by more than one committee or is subject to multiple amendments on the floor, but the solution might well be to vote on a plain-text summary attached to the actual codification language at the same time. Conflicts could be more easily highlighted and courts would have better guidance.

    Walter (6cd4b4)

  9. The general rule (here in CA, anyway), which you can find in a lot of cases, is that courts trying to determine the meaning of a statute will always say they are trying to give effect to the intent of the legislature. However, the No. 1 way of determining legislative intent is to read the language of the statute, which, if unambiguous, marks the end of the analysis. The courts only go to the next step (studying the legislative history, comparing the statute in question to similar ones that have already been construed in published cases, etc.) when the original language is unclear. Whether or not this rule is ideal, it seems to work in practice pretty well.

    And when a legislative body thinks the courts or the executive are not properly giving effect to what it intended, it can always amend the law.

    So Patterico’s expression of what the rule ought to be, seems to be pretty much what the rule is, at least in those cases where analysis is not distorted by a political agenda. It’s hard to think of a better rule for determining the intent of something so amorphous as a group of several hundred legislators.

    RL in Glendale (198f53)

  10. I think Steve in the first comment hit the nail on the head – extralegal statements of intent might only be operative if the actual language of the legislation is unclear, ambiguous, or contradictory. Although, as a layman, I would be inclined to suggest that those reasons would be grounds for tossing out the law entirely.

    On the whole, however, I would suggest that it is inappropriate and perhaps even wrongheaded to attempt to apply the concept of intentionalism to legislation. Just because bills/laws are composed of words doesn’t mean that all the same concepts apply. Apples and oranges.

    Russ (91df94)

  11. Just to make life more complicated for the intentionalist argument, there are those legislators who voted against the law based on their understanding. Their vote could have been different if they had read or understood the law to mean what it said. The intent of the no votes would need to be considered.

    BarSinister (edbc1a)

  12. Number 11 was posted by Bar Sinister, not by You

    BarSinister (edbc1a)

  13. Those familiar with Judge Kozinski’s style will appreciate his dissent re: ‘intent’ in this case.

    For those new to his language, sit back and enjoy.

    His dissent begins at 6596.

    http://www.ca9.uscourts.gov/datastore/opinions/2010/05/03/08-56423.pdf

    Robert N. (95e88b)

  14. This post made me think of the hullabaloo over Presidential Signing Statements. The idea behind the signing statements was, it seems to me, to give the President an opportunity to state during the signing how he interpreted the law he was signing. The issue was raised during the W. presidency that he was using those statements as a means to subvert the actual law. I take no position on whether or not he did, or did so more than other Presidents, but the above question does raise this question as well, if Congress passes a law that states insurance companies are not required to cover pre-existing conditions and the President makes a siging statement along the lines of “With this law, insurance companies must now cover all pre-existing conditions” which statement would hold up in court?

    Jason Newman (9a39d0)

  15. Intent is meaningless. Words have meaning. If the legislation is so poorly worded that the meaning is indecipherable then it should be found unconstitutional and sent back to be written more plainly. Congresscritter complain that it is too difficult to read all of a bill before passing it. My answer to that is then you are putting too much in a bill. Break it into small enough pieces that you can read it.

    Largebill (1d1579)

  16. This is a question of necessary and sufficient conditions.

    Intent isn’t “meaningless” – it’s necessary for the assignation of meaning, but not sufficient for it. When you say something, you meant what you meant (/whocares?) – that’s only half of the equation. If you fail to communicate your meaning in a way that a reasonable audience can understand, then you might as well be pissing up a rope.

    Leviticus (35fbde)

  17. Not to mention that words don’t have intrinsic meaning outside of the meaning that the speaker and the listener assign to them.

    The problem I have with textualism is that “book” means different things to different people, and a judge should be concerned with what it meant to the people who wrote and passed the law rather than what it means to him.

    aphrael (e0cdc9)

  18. Right. And the “and the listener” part is key. Obviously, a listener doesn’t get to decide what a speaker intended when he spoke; and if the two are discussing an issue in good faith, the listener will ask for clarification (if confused) and the speaker will oblige. But both are parties to the process, and while a spoken sentence may have “meaning”, in the strictest sense, without a listener (or without being intelligible to a listener), it will have no communicative value unless spoken in a way a reasonable audience can understand.

    Leviticus (35fbde)

  19. Screw all this….
    The NYSE has is on a roller-coaster: it dropped below 10K and has clawed itself back up to 10183, but that represents a 6% loss for the day – which is not over yet.

    AD - RtR/OS! (59c61c)

  20. Oh noes – a bunch of rich people are going to lose and/or make a bunch of money.

    Leviticus (35fbde)

  21. This is what happens when you have a government in Greece falling due to riots, and fiscal mismanagement there, plus there are reports of riots in Germany in opposition to the Greece bail-out.
    You may deride this as “a bunch of rich people”, but just remember:
    “When elephants fight, it is the grass that gets trampled”.
    As with the Panic of 9/18/08, the insiders made and lost a pile of money, but it is the average working stiff who lost his job, and had his house foreclosed on.
    You know, the old saying was “When Uncle Sam sneezed, the rest of the World catches cold”, and now with global interconnectiveness, we all catch cold at one point or another.

    AD - RtR/OS! (59c61c)

  22. You’re right, I suppose – for my to couch the situation the way I did was too flippant. Apologies.

    Leviticus (35fbde)

  23. Accepted!

    AD - RtR/OS! (59c61c)

  24. When you start with the standard meaning of words on paper at least you’re on more solid ground that if you insist on attributing intent additional to or divergent from the text.

    ropelight (2b194e)

  25. Obviously that was a typographical error, and should be fixed :-)

    Chris Hooten (0f782f)

  26. nk…thanks for the levity.

    AD - RtR/OS! (59c61c)

  27. AD – apparently nobody’s really quite sure why the market flipped out today.

    http://www.theatlantic.com/business/archive/2010/05/what-the-hell-just-happened-in-the-market/56334/

    aphrael (e0cdc9)

  28. As with the Panic of 9/18/08, the insiders made and lost a pile of money, but it is the average working stiff who lost his job, and had his house foreclosed on

    Yeah, but that was due to decisions made by the government. Somebody was going to take a haircut – the state decided that it would be the taxpayers and not the rich.

    Subotai (c725f1)

  29. Greece will never pay that loan back. Germany is desperately trying to save herself from drowning by trying to hold an anchor afloat.

    nk (db4a41)

  30. There ought to be laws limiting the scope of any piece of legislation to one specific matter. No 2,400 page monsterpieces such as the deathcare pill shoved down our throats by people who probably still haven’t read it. Simplify, simplify, simplify. Of course, that might put more than a few legislative staffers out of work… but that would be a plus, in my view. (It also might make a few lawyers have to find another field in which to specialize… which, again, might not be such a bad thing, either. Sorry, Pat.)

    either orr (7cffdd)

  31. Comment by aphrael — 5/6/2010 @ 3:02 pm

    It seems that a typo by someone trading P&G stock – entered 16B shares instead of 16M – caused the DOW to plummet, and everyone else (who’s been on tender-hooks over the Greece problem) just jumped on the avalanche. When the error was discovered, P&G recovered, and the DOW only finished down -347 – but that shows a 600 point loss in three days.
    Friday should be a very nervous trading day.

    AD - RtR/OS! (59c61c)

  32. #32 – In any case, it’s a great excuse, and shows that perceived intent of any large player in the DOW is on a hair trigger standard of cascading collapse, and that really points to the enormous ongoing interconnected problems and underlying panic that is there at all times.
    As for the textual or intent interpretation on the passed bill, the 21 people who specifically had a provision implemented that made certain insurance companies would not have to provide health care for children with preexisting conditions, won that round.
    In that particular instance, it doesn’t matter what any others thought concerning what they were or weren’t voting for. The bill passed, and with the specificity of the promoters mentioned in that case, the others can’t claim “no fair we didn’t know !”
    Neither should judges be allowed to do so.
    The legislature may pass another bill changing the “error” that the 21 pushed for, but until that is done, the rule of law is crystal clear.
    The reason we have such a complex argument is people are so deranged and full of it nowadays, they do indeed argue over absolutely clear text, and many will claim the very opposite of what they read, and others will give them much credit.
    The deceptive and emotional nature of the new left movement uses this promoted bad character condition to achieve it’s goals in an end run or confusing promotion in the courts, and those with a clear head and desire to follow the law are squashed under.
    It comes down to corruption, plain and simple.
    The same thing has happened with the US Constitution. Penumbras and emanations are “perceived” for a specific and corrupt reason, then a lengthy, confused, and deceitful mash of excuses is issued with the intent to turn the reader’s mind toward a belief that the corruption was a pure and straightforward conclusion.
    No corruption, no argument.

    SiliconDoc (7ba52b)

  33. Comment by SiliconDoc — 5/7/2010 @ 9:23 am

    My take on this is encapsulated (at least partially) in this comment I posted this morning over at “Does Intentionalism Sanction Fraud?”:

    There would be a greater appreciation for the meaning of words, and their proper use, perhaps,
    if we used lawyers less in settling these disputes, and Everlast Mdl.3003 more.

    Comment by AD – RtR/OS! — 5/7/2010 @ 9:16 am

    I would add that it seems that as we become more and more distant from the consequences of our actions, our behavior becomes more and more egregious.
    It is not making this a better world.

    AD - RtR/OS! (044556)


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