If legislative intent is considered when interpreting laws, why don't lawmakers attach a note to the law explaining their intentions?

Question

When a judge is deciding whether a law applies to a particular case, they often look at historical documents or transcripts of legislative proceedings to determine whether the lawmakers would've intended the law to apply in this case. For instance the Federalist Papers are not part of US law but are often used to determine the Founding Father's intent behind parts of the Constitution.

If intent is clearly an important part of law, why isn't there an official system to record it? Lawmakers could simply write down their intentions in a non-binding memo that gets stored with the law. A document written in more natural English (like a court Opinion) that doesn't change the letter of the law but states intent of the law would give the Judiciary something more to work with when it comes time to interpret. This would ensure that the law is applied correctly in the future. It wouldn't leave the justice department combing through secondary documents and trying to guess at the intent.

Would there be any problem with doing this? Could lawmakers do it for the next law if they wanted? Does any state or other country require or encourage this?

Answer 1

[W]hy isn't there an official system to record it?

Existing Systems

Sometimes there is. For example, the Uniform Commercial Code and many of the other Uniform and Model Act that are adopted by state legislatures has an official commentary which is often adopted officially by the legislature along with the Act.

It isn't uncommon for legislation to include one or more sections discussing the legislative intent with regard to the bill.

Almost all tax legislation adopted by the United States Congress is accompanied by a new Joint Tax Committee report for each major draft as well as a Congressional Budget Office estimate that includes an explanation of the provisions.

A complete record is generally made of every different draft of legislation, en route to its adoption, identifying every vote taking on a bill and every hearing or floor session of a house of the legislature where the legislation was considered. In many legislatures, a verbatim record of each of those hearings and floor sessions containing all of the debate that was conducted on the bills is available.

At various times the rules of one or the other houses of the U.S. Congress, and mandates of a state legislative services agency at the state level, requires that a check list of frequently asked questions about legislative intent (e.g. the effective date, whether the legislation is retroactive, whether it creates a private cause of action, its budget impact, is there a statute of limitations and if so what is it, etc.) be completed for every bill with any deficiencies addressed. Most legislative bodies also require that bills be given an official summary when introduced, although those summaries are often not updated as the bill is amended over the course of the legislative process.

Difficulties With Implementing These Ideas

This said, there is not a perfect solution. Legislative history is particularly hard to document in an American style legislative process where the drafters of a law need support that is fleeting and highly contingent on particular bill content.

More comprehensive official commentaries are more frequently found in government bills in parliamentary systems in which the Prime Minister's coalition has near total control of the legislative process leaving it free to focus on drafting and implementation issues rather than case by case negotiations over how to get a bill passed at all.

Simple Legislation

Sometimes, legislation is simple and there isn't a need for legislative history.

For example, perhaps a law amends the number of judges assigned to the 17th District Court in Colorado from 14 to 16.

Time Pressure In The Legislative Process

Sometimes, legislation is prepared under intense time pressure, and there isn't a capacity to prepare an official legislative history in the necessary time frame.

For example, perhaps an appropriations bill needs to be passed to prevent a government shutdown, or a state legislative session ends on a date certain and the bill is a compromise introduced to replace previous bills that weren't making progress that is newly introduced and has to be passed in just a few days.

Legislation Whose Meaning Is Obscure To Hide It From Opponents

Sometimes, legislation is deliberately opaque so that people who favor the bill can utilize it, but people who oppose the bill don't realize what it is doing and hence do not organize opposition to the bill.

For example, a bill to allow standard preservatives to be added to foods without case by case FDA approval might be worded in a way that is deliberately opaque to undermine opponents efforts to stop the bill.

Unforeseen Issues

Also, even when there is legislative history, it doesn't always address the question that is presented in the judicial process, often because nobody ever considered the issue.

For example, suppose that a law regulates bladed weapons, which at the time of enactment consisted of knives and swords and the like, and then somebody invents the light saber. Was a light saber within the scope of the legislature's intent?

If the law prohibits the use of lead and mercury in weapon blades because it leads to complications when people are wounded with them and to contamination of land fills when they are disposed of, the legislative intent, from context, was probably not to include light sabers in the definition of a bladed weapon.

But, if the law is designs to prohibit people from bringing weapons into court houses, the legislative intent was probably to prohibit light sabers as well.

So, the question of whether a light saber is within the definition of a bladed weapon can depend on legislative intent in a manner that may be discernible from context, but impossible to include in an official commentary which obviously wouldn't talk about something that hadn't been invented yet.

Another quite common unforeseen issue is that legislation will be based upon certain assumptions about how things are usually done that has become obsolete in literal terms.

For example, legislative may assume that people who own stock usually have physical stock certificates in safes in their homes, but that practice has fallen into disuse, and how the law applies to the current reality must be worked out.

Passing The Buck To The Courts To Resolve Difficult Details

Sometimes the legislative history doesn't always address the question that is presented in the judicial process because the political forces involved considered the issue and could agree on legislative language but not upon what exactly that legislative language meant and intended to let the courts figure it out.

For example, most states have a statute which states that decisions about parenting time and parental decision making shall be made "in the best interests of the child" with little or no discussion of how that standard is supposed to be applied in practice, because even though everyone agrees that this is right standard to apply, they can't always agree in particular cases or even broad classes of cases what the "best interests of the child" are or what considerations matter most in deciding that question.

Passing The Buck To Executive Branch Agencies

Sometimes legislation is unclear in order to delegate authority to a regulatory agency, rather than to the Court.

For example, most environmental laws delegate most of the substance to executive branch agencies.

Answer 2

So for one reason there could be language drift between what the words meant in when the framer passed a law and when a law needs to be interpreted. For example, the Second Amendment of the Constitution:

A well regulated militia being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.

It's a whole sentence and that would seem like a rather simple law, when if anything, we can see a whole slew of reasons why the law supports your position and not mine, vice versa. Whether you and I agree or not is irrelevant to the conversation at hand. I merely offer this as an example of a law that has a large language drift as phrases like "Well Regulated Militia", "Right of the People", "Security of a Free State" mean different things to different people in today's parlance.

The reasons why the Founding Fathers thought that this was necessary to point out as a specific right of the people (as it has been interpreted by SCOTUS) when we have the 9th and 10th Amendment (Innumerate Rights and the fact that the Federal Government cannot touch that which is explicitly stated to be their domain) would surely cover it, we can infer that the Second Amendment was very important to the framers. To understand what is legal and illegal under it, you need to know what their mindset was and what they thought those words meant.

At the time, the founders thought a single sentence would cover it all, and lest you believe they didn't thoroughly question every thing they put into the constitution, the last change to the Constitution was over the placement of a comma, so making sure they said exactly what they meant was vitally important.

Another reason we do this is that, due to language drift, the fundamental meaning of the law can be changed with it, over ridden, or even out right loop-holed out of existence. For example, while the First Amendment garentees the right to free speech, several vitally important questions asked of the Supreme Court were whether it covered written words or only spoken words. What about the use of art that requires no words? What about ideas that the majority do not agree with? If the intent of the Founders was not considered, speech only means spoken word, so these items could be regulated by law (they cannot per SCOTUS). While we often have this fight over hate speech, there was a time and place where abolition of slavery was a hated minority opinion... there were times where the right of women to vote was a hated minority opinion. There was even times when pro-alchohol stance was a hated minority opinion.

Finally, we can also infer that the founders were well aware the course of popular opinion may drift from their designs and left the amendment process to allow for changes to the Constitution to be put into place in the event they over looked something, forgot something, or someone did something dumb to it (prohibition anyone?) so that if these changes were strongly supported, they could be put into affect, which serves as a release valve to being constrained by a document written in 1788.

Answer 3

I believe the main reason this is not done is because legislative intent is not always clear. The reasons why somebody may agree to vote on a particular bill may not be the same as another person agrees to vote on a particular bill. If this statement is attached to the bill, lawmakers could refuse to vote for it.

Additionally, maybe lawmakers don't know all the circumstances that could potentially be affected by the law. Perhaps there are situations in which the language of the final legislative bill does contain ambiguities which are best interpreted by the courts; this is particularly the case for when the pace of technological advancement overtakes the pace of the legislature in passing laws. A statement limiting the law to a particular state of circumstances may later cause the politicians to be attacked for not including it or foreseeing it.