Who's Afraid of Legislative Intent?

Doctrines of statutory interpretation rarely raise anyone’s blood pressure. The next time that the canons of construction appear on placards outside the United States Supreme Court building may be the first. Interpretation of legal texts is supposed to be a sober, reflective, and morally-neutral enterprise. So it was striking to observe the controversy around Judge Posner’s critical review[1] of Justice Antonin Scalia’s and Bryan Garner’s book, Reading Law.[2] Posner indulged in uncharitable jabs and even some ad hominem attacks. Scalia and Garner responded with pointed words. As others joined the fracas on law blogs and other media, exclamation marks and rhetorical questions proliferated.

The dispute overshadowed the controversy that wasn’t, but should have been. The most contestable premise of the Scalia/Garner book is the premise that all sides accepted uncritically, namely that the job of a judge is not to discern legislative intent because there is no such thing (except perhaps as a useful fiction).[3] Richard Ekins’ recent book, The Nature of Legislative Intent, makes that premise difficult to maintain.[4] Ekins skillfully defends the ancient idea that a legislature can intend to change law, and the job of courts is to give effect to that intent. The law created by a statute is not merely the assemblage of signs of which the text is constituted. Rather, law is the set of propositions to which the text points. Positive law is a reason for the actions of judges (and others) even when the text by itself is not fully determinate.

Scalia and Garner (and Judge Easterbrook, who wrote a foreword to the book) seem to suppose that when a legislature acts, all it sets out to accomplish is the crafting of words. “[A] majority has undeniably agreed on the final language that passes into law,” they state. “That is all they have agreed on—and that is the sole means by which the assembly has authority to make law.”[5]

Yet that is not all that the legislators think they have agreed upon. They do not act in order to agree upon texts. They act to change the law, to substitute some legal reasons for other legal reasons. To that end—for that reason—they make proposals about what the law should be and then vote on those proposals according to established procedures. When they are finished, they (even those in the minority) think that they have produced a law, that is, a set of propositions that gives members of the political community new reasons for acting or refraining from action. From their point of view, the text is the vehicle that communicates the propositions that they have enacted; it is not the thing itself.

Is their view an illusion? Ekins thinks not. He maintains that skeptics of legislative intent are successful only against a caricature of the phenomenon. That caricature views legislative intent as an aggregation of individual intentions.[6] But the aggregative model does not capture the complexity of the thing itself. From the perspective of legislators, it is the legislature—not merely individual legislators or aggregates of legislators—that intends and acts. Indeed, the standing project of the legislature—to legislate—persists even as individual members come and go. When a member joins the legislature, it is the member whose intention changes.[7]

This account rests upon joint intention. Building on the work of Michael Bratman,[8] Ekins locates joint intention in the interlocking intentions of the group’s members. Interlocking intentions are formed when at least two people both intend the same plan of action and the “meshing subplans” of that plan, and they do so because of their shared intention.[9] Their individual intentions are contingent upon one another. Each member intends to pursue the plan of action in part because the other member also intends it. The members have a reason to act differently than they would if acting alone. The resulting “group intention arises out of and is not reducible to any one individual intention.”[10] A group that adopts reasoned plans forms an agent.[11] An agent acts in response to reasons. In order to act upon those reasons the agent must form an intention to do so.

So, perhaps joint intention is not a fiction. But Ekins must also account for the problem of unanimity. How can a legislature be said to act upon a joint intention when many of its members act for the purpose of defeating the proposed legislation? Ekins’ solution to this problem may not satisfy all readers because it involves a particular understanding of authority. Without unanimity, the group cannot form an agent. But Ekins insists that unanimity should not be mistaken for voluntary assent. Unanimity may be based on the authority that legislatures exercise over their individual members.

Of course legislatures cannot function as democratic institutions if they coerce unanimity on particular legislative proposals. Ekins addresses this challenge by distinguishing between the legislature’s standing intention and its particular intentions. Broadly, a group has a standing intention when it adopts a general plan to select particular plans. In order to act as a group, the members must unanimously share the group’s standing intention, even if they do not all share all of its particular intentions. In a complex plan of action it is not necessary that every member of the group share every particular intention. The members may intend only one part of the plan and accept other parts as unintended, side-effects of their intended actions. Nevertheless, all of the actions of the group’s members are actions of the group if they are performed consistently with the group’s standing intention.[12]

For a legislature, the standing intention of the group is to deliberate and act upon reasoned proposals to change the law when needed. This is the purpose for the legislature’s existence and the reason why legislators join the group. The individual legislators’ intentions interlock on the standing intention, “so that ‘I intend that we legislate because of and in accordance with your intention that we legislate.’”[13] The particular intentions of the legislature, those which result in law (or not), are formed around proposals to change the law, upon which the legislators deliberate. The legislature deliberates and votes upon proposals according to its procedures. The result of the vote is binding because the members unanimously intend that it will be so. Ekins argues that, when a bill is put before a legislature for consideration, “The legislators truly intend to act jointly on this proposal.”[14]

It is the proposal that performs the important work of giving legislative intent something to form around. “My argument,” Ekins summarizes, “is that legislative intent is what is proposed for legislative action. I conclude that this intention coordinates how the group acts and is what the legislators jointly intend in acting to legislate.” The primary intentions of individual legislators concerning particular acts of the legislature “are irrelevant to the content of the joint act.”[15]

Because explaining a complex phenomenon such as group agency is more difficult than isolating aspects of it for criticism or imagining defective instances of it, Ekins suffers a disadvantage compared to the skeptics of legislative intent. One can easily grasp the argument that, because those who voted in the minority voted with an intention to defeat the legislation, they cannot be said to have intended the very propositions that they intended to prevent being enacted. The argument is simple, and simplistic. By contrast, understanding Ekins’ argument requires the reader to grasp how joint intention can exist, how two or more people can participate in a mutuality of intentions, how standing intention can transform the individual acts of the group’s members into group acts, and a number of other complex aspects of group action, even before one takes up the question how legislatures in particular go about intending and acting.

For those whose first discipline is not analytical jurisprudence, the complexity of the subject might test the reader’s stamina, and Ekins’ rigor might test one’s patience. The move from standing intention to an intention to adopt a proposal requires special attention. Many readers might wonder whether Ekins has deemed the individual legislators to intend the legislature’s enactments. The connection between legislature-as-agent and legislators-as-agents is complicated.

For the reader who perseveres, a reward awaits in the final chapter: a guide to statutory interpretation which avoids both judicial supremacy and sometimes-arbitrary textualism. The object of interpretation, Ekins argues, is neither to bring about the results judges think best nor to adhere to the plain meaning of the text at all costs. Rather, it is to discern the changes that the legislature made to the law for reasons. The job of the interpreter is “to infer and understand the legislature’s lawmaking intention, which intention (as expressed in the enactment) changes the existing law in some way.”[16]

That the legislature intended to change the law, and not merely to draft a text, means that context and legislative history are both relevant to the interpretive project. When it acts, a legislature acts with some (but not complete) knowledge of the status quo, and has a particular concern that it wants to address. That knowledge and that concern indicate what the legislature intended to do by its enactment.

This is not a license for judges to go searching for premises wherever they may be found. A lawyer or judge can go wrong by failing to perceive “the depth of the context in which the legislature acts.”[17] So, for example, that a text does not appear on its face to resolve a case before a court, or that the legislature did not appear to contemplate such a case, does not entail that the court enjoys a power to fix legislative oversights or to enhance the text. It simply means that the legislature intended to change what it intended to change, and no more.

To illustrate, Ekins turns to the famous Hart-Fuller debate and the hypothetical statute providing, “It shall be a misdemeanour, punishable by a fine of five dollars, to sleep in any railway station.”[18] Ekins affirms the intuitive conclusion that the statute does not reach the tired traveler who accidentally nods off while waiting for a train. But this is not because “there is a judicial power to fix minor infelicities or oversights in legislative language use.”[19] Rather, the legislature has acted within the context of a legal tradition (the common law), which requires that all criminal offenses involve means rea and voluntary action. The legislature took that context for granted.

In the end, Ekins has crafted an invitation to understand law as law—a reason for action. The debate between pragmatists and textualists will no doubt continue, with or without ad hominem attacks and rhetorical questions. Ekins offers a different way to understand what legislatures do when they enact statutes and what judges do when they interpret them.

[1] Richard A. Posner, The Incoherence of Antonin Scalia, The New Republic (August 24, 2012).

[2] Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts (St. Paul: Thomson/West 2012).

[3] Id. at xxii, 29-30, 391-92.

[4] Richard Ekins, The Nature of Legislative Intent (Oxford U. 2012).

[5] Scalia and Garner at 393.

[6] The Nature of Legislative Intention 15-76 (Oxford U. 2012).

[7]Id. at chapters 3-5.

[8] Michael E. Bratman, Faces of Intention 91-162 (Cambridge U. 1999).

[9] Ekins, 54, Bratman, 121.

[10] Ekins, 55.

[11] Id. at 73.

[12] Ekins, 58-64.

[13] Id. at 221.

[14] Id. at 231.

[15] Id.

[16]Id. at 244-45.

[17]Id. at 261.

[18] Lon L. Fuller, Positivism and Fidelity to Law—A Reply to Professor Hart, 71 Harv. L. Rev. 630, 664 (1958).

[19] Ekins at 261-62.