Friday, July 18, 2008

In Defense of Legislative Intent, Sometimes

I was just talking to an unnamed source about Scalia's A Matter of Interpretation, especially Scalia's distaste for the reliance upon legislative intent in court opinions, and I took issue with Scalia's position, although perhaps I was just trying to make up for my real admiration for the most intellectually gifted of our modern day Four Horsemen.

I'm too lazy to find an actual quote from Scalia on his position, so instead I'll just borrow this from Wikipedia:

"Others, most notably United States Supreme Court Justice Antonin Scalia, have objected generally to the use of such evidence, rather than reliance on the literal language of the statute, arguing that such evidence of "legislative intent" is often created by proponents of a bill to persuade a court to interpret the statute in a way that they were not able to persuade the legislative body to adopt when passing the bill."

Let me first say that his justification is factually correct. Proponents of bills often attempt to manipulate the congressional record, in hopes of affecting future court interpretations, ala the "floor debate" that Jon Kyl and Lindsay Graham cited in a February 2006 brief to the Court regarding the Detainee Treatment Act. Other times, the legislative history of a given bill may be unclear for completely innocuous reasons. Perhaps most of the real debate took place in cloakrooms. Perhaps one side didn't bother to offer their thoughts on the floor. I would agree with Justice Scalia that in any of these cases, assertions regarding legislative intent should be cast aside. Indeed, Justice Stevens' majority opinion in Hamdan v. Rumsfeld took exactly that course, remarking that, "[t]hose statements appear to have been inserted in the Congressional Record after the Senate debate."

But that is not to say that legislative intent can NEVER be abundantly clear. I remember reading, for a class, pages and pages of the Congressional Record on the debate over the National Security Act of 1947 for which the issues at hand were plainly clear and well defined. In such cases, I see no reason why legislative intent should not be at least ONE of the tools available to the interpreting judge.

I should say, however, that there is one theoretical issue that challenges the legitimacy of legislative intent, a challenge for which I have no really satisfactory answer. That is, whose intent are we talking about here? With 535 voting members of Congress, there is likely to be some variety of intents. Even among majority coalitions, of whom I think we can assume we're talking (the intent of the minority in each case would have been for the bill to NOT become law) about a bit of a mess. And yet, I'm confident that this is such a thing as a "general will" when laws are made, although perhaps I'd like to drop the shroud of mysticism that surrounds Rousseau's version of it. On some basic level, we can find obvious intentions that unite the majority behind a bill. Now perhaps it will be rare that such universal intentions are both distinguishable and of enough detail to be relevant to a court case. But that should not preclude such intent, alongside other considerations from governing the few cases where it is adequate (and adequately discerned) to do so.

Why does this matter? I've already admitted that the number of cases we're talking about is likely quite small. And I'm not even trying to say that intent should be the only important interest, even when it is and interest. But a categorical dismissal of legislative intent would strike at the very heart of republican government, the (supreme) sovereignty of the legislative power. I'm not sure how we can claim to be democrats or republicans if we are willing to accept that a judge can willfully ignore the clear will of the legislature (provided they haven't violated the Constitution, of course).

I'm likely passionate about this particular issue at this particular time because I've been indoctrinated in the rules of interpretation for Chilean law, rules which are traced back to Napoleonic, and eventually Roman ideas. There is a particular concept called the "reference to the legislator" that is relating to this discussion and that I find particularly interesting. I'll add something about it to the end of this post if I have time between dinner and getting drunk.

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