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?
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.