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Posted Nov. 19, 2010

Legislative Intent Not Meaningless in Interpreting Laws, Nelson Says

Nelson chair lectureLawmakers’ intentions are not irrelevant to statutory interpretation, contrary to the rhetoric of some legal thinkers, Professor Caleb Nelson said last week.

Nelson, the Emerson G. Spies Distinguished Professor of Law, delivered his chair lecture, “The Relation Between Legislative Intent and Statutory Meaning,” in Caplin Pavilion on Nov. 9.

Critics of legislative intent sometimes claim that the very concept is incoherent, Nelson said.  As collective entities, legislatures do not think with a single brain, and they cannot form intentions in the way that individuals do.  For that reason, many legal thinkers have suggested that the notion of legislative intent is simply fanciful, he said. 

“People who advocate the interpretive approach known as ‘textualism’ often advance that criticism of legislative intent, and I consider myself a textualist of sorts,” Nelson said. “But I have to say that I find the textualists’ rhetoric about the emptiness of legislative intent unconvincing and overstated.”

To be sure, Nelson acknowledged, “concepts of group intention are complicated and artificial.” 

“Any notion of ‘legislative intent’ is bound to be something of a construct; even if it is based on the actual intentions of individual legislators, it requires some artificial method of combining those potentially disparate intentions to produce an aggregate intention that can be attributed to the group as a whole,” he said. 

Still, “It is not true that every possible method of constructing such intentions is just as good as every other possible method, and that the notion of ‘legislative intent’ therefore has no determinate content.”

According to Nelson , “Hardly anyone really doubts that the concept of legislative intent can be coherent.”  Nelson pointed to what he called an extreme example:  If every single member of a legislature has exactly the same understanding of a bill that the legislature is enacting, we would think it perfectly natural to attribute that understanding to the legislature as a group. 

“When people say that the concept of legislative intent is incoherent,” Nelson concluded, “what they really mean is that as a factual matter, the conditions under which it is coherent to talk about collective intent do not usually obtain.  In other words, their claim is not so much conceptual as empirical.

“But even when recast as an empirical claim, the idea that it is usually impossible to speak of any sort of ‘legislative intent’ still seems overstated.” 

The concept of legislative intent can be coherent even in the absence of absolute unanimity among members of the enacting legislature, Nelson said, and even when legislative intent is not completely determinate, it might still be at least partially determinate.

In support of the latter point, Nelson asked listeners to imagine that when a particular bill works its way through a legislative chamber, “two-thirds of the legislators who have positions on the bill’s meaning understand it to establish Directive A while the remaining one-third understand it to establish Directive B.”  Depending on such factors as the chamber’s procedural rules and the identity of the people in each group, “We may not be able to conclude (in a non-arbitrary way) that the chamber as a whole intended to establish Directive A rather than Directive B.”  But “we probably can say that the chamber did not intend to establish Directive X.”  At least in that “negative sense,” Nelson asserted, “it often will be coherent to talk about ‘legislative intent.’”

Even if the concept of legislative intent is coherent, some critics have asserted that it is not actually relevant to statutory interpretation. According to Supreme Court Justice Antonin Scalia, for example, the point of statutory interpretation is to determine “the objective indication of the words, rather than the intent of the legislature.”

Nelson agreed with Scalia that these two concepts, which he referred to as “interpreted meaning” and “intended meaning,” are distinct from each other.  In his view, however, they are not completely independent. 

“The rules and techniques that we use to determine the meaning of statutory language (or what Justice Scalia calls ‘the objective indication of the words’) are designed in large part to promote successful communication from legislatures to interpreters, so that what members of the enacting legislature collectively intended a statute to mean tends to correlate with what subsequent interpreters understand it to mean.”

To illustrate that point, Nelson pointed to various prominent canons of construction.  For instance, the presumption against superfluity tells interpreters that if Section 1 of a particular statute seems ambiguous when considered in isolation, but one of the possible readings would make Section 5 of the same statute superfluous, interpreters should usually prefer the other possible reading of Section 1.

According to Nelson, the underlying logic of this canon rests on an inference about the communicative intentions of the enacting legislature. “The fact that the enacting legislature bothered to include Section 5 sheds some light on what members of the enacting legislature probably understood Section 1 to mean, and that information affects the meaning that interpreters themselves ascribe to Section 1.”  

Nelson conceded that the principles that interpreters use to determine the meaning of statutory language are not all linked to some type of legislative intent.  Other goals — such as limiting the cost of the interpretive process and enabling people outside the enacting legislature to have fair notice of the law’s requirements — also matter. 

But “The techniques and principles that make up our system of interpretation, and that determine the ‘meaning’ of statutory language, are geared at least in part toward capturing the meaning that members of the enacting legislature collectively intended to convey.”

That doesn’t necessarily mean that interpreters should freely make ad hoc inquiries into legislative intent in each individual case, or that interpreters should allow statements in a statute’s legislative history to trump what they would otherwise understand the statutory text to say. “Even if textualists are correct that judges in individual cases shouldn’t conduct certain kinds of ad hoc inquiries into legislative intent, textualists cannot plausibly argue that legislative intent is irrelevant to the overall project of statutory interpretation,” he said.