21

I recently started to listen to recordings of arguments before the Supreme Court. I am not a lawyer so I don't completely follow everything, but I noticed right away that a lot of arguments deal with the intent of this or that law.

Given that this is such an important focus, have arguments before the Supreme Court ever involved testimony of some sort from legislators who drafted the laws being debated, explaining what they really intended the law to mean? I noticed that attorneys even bring up how a certain word in a law is defined in the Merriam-Webster's Dictionary. Wouldn't it make more sense just to ask those who wrote a law to explain what was meant (assuming they are still alive)?

5
  • 3
    No legislator can speak authoritatively on behalf of the legislature.
    – phoog
    May 29, 2023 at 6:52
  • 2
    How would you safeguard that the legislator has not changed their mind since then, or forgotten some nuanced details? The legislature is the immutable record, not the legislator's opinion.
    – Flater
    May 30, 2023 at 5:47
  • 2
    "The legislature is the immutable record" Did you mean legislation?
    – Badger
    May 31, 2023 at 2:50
  • 1
    Similar question for the UK: law.stackexchange.com/questions/89442/… May 31, 2023 at 8:22
  • 1
    Near-duplicate: law.stackexchange.com/questions/89894/… May 31, 2023 at 8:23

6 Answers 6

26

Many jurists do accept that it is appropriate to attempt to ascertain the "legislative intent" as part of the exercise of statutory interpretation, but legislative intent is not an aggregate of the subjective intentions of individual legislators. I am not aware of any question of statutory interpretation that was informed by testimony from staffers or legislators who drafted, debated, or enacted a law.

For some rationale, see Judge Easterbrook's foreward to Antonin Scalia and Bryan Garner's Reading Law: The Interpretation of Legal Texts:

Legislative intent is a fiction, a back-formation from other and often undisclosed sources. Every legislator has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislature is a collective body that does not have a mind; it "intends" only that the text be adopted, and statutory texts usually are compromises that match no one's first preference.

If some legislators say one thing and others say something else... how does the interpreter choose which path to follow?

Even evidence of what was said in Parliamentary debate is treated cautiously (R. v. Heywood, [1994] 3 S.C.R. 761):

First, the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole. Thus, it may be said that the corporate will of the legislature is only found in the text of provisions which are passed into law. Second, the political nature of Parliamentary debates brings into question the reliability of the statements made. Different members of the legislature may have different purposes in putting forward their positions. That is to say the statements of a member made in the heat of debate or in committee hearings may not reflect even that member's position at the time of the final vote on the legislation.

Legislative intent is determined by looking at the words, the scheme, and the object of the provision (R. v. Hutchinson, 2014 SCC 19, paragraph 16).

1
  • 1
    In the US, the Speech and Debate clause (similar provisions exist in most/all? state constitutions) would rule out any compelled testimonies from legislators and their staff concerning intent. I don't think the courts even take voluntary testimonies, though. In part because of the logic of your Easterbrook quote (though it may be worth noting that Scalia was something of a revolutionary in how he moved the jurisprudence of practically the whole country away from "legislative intent" approaches). I believe we have many recent examples of them signing onto amicus briefs, though. May 29, 2023 at 6:25
8

One impediment to such explanations is that when hearing an appeal (as opposed to a case where SCOTUS has original jurisdiction), there are no witnesses testifying. An attorney for a party may argue, but a legislator or witness cannot testify. Information (of various kinds) enters into the stream via amicus briefs, which may indeed affect the outcome, but rarely do the justices indicate in their opinions where they get their information, even when it's not about something that they personally know.

Scalia in Common-Law Courts in a Civil-Law System p. 107 mentions an exchange within the Senate regarding "legislative intent" in the course of the case Hirschey v. Federal Energy Regulatory Comm’n, 777 F.2d 1 where he refers to "the legislative history" contained in 128 Cong. Rec. 16918-19, 97th Cong., 2d Sess.. This is a transcript of actual words uttered on the floor of the Senate, from which one might attempt to arrive at an understanding of "legislative intent".

Your idea is to ask "the person who wrote the bill" what they intended, however, there may well be no identifiable individual, since bills frequently have multiple sponsors, and legislators don't write laws (they have staff who do the writing). Appellate courts do look at the objective record regarding the creation of laws, as informed by amicus briefs, but they do not interrogate witnesses to the creation of law, and they avoid subjective perspectives like "I wanted to bring about social justice". Even in a trial, it's the lawyers who ask the questions.

3
  • 6
    Anyway, it doesn't matter what the person who wrote the law intended; what matters is what the legislators intended to vote for. And there can be as many as 535 answers to that question in the US federal government.
    – phoog
    May 29, 2023 at 20:55
  • 1
    Not to mention, the people who wrote/voted on the bill may have all been dead for a century. Or they might slant their responses based on how they prefer the case to be decided. Reading what was written or said while the bill was going through the process is the only semi-reliable information you have in a lot of cases.
    – bta
    May 31, 2023 at 17:12
  • 1
    Another example that comes to mind is Justice Black's dissent in Adamson v. California (1947), which quoted extensively from Congressional records around the creation of the 14th Amendment to show that incorporation of the rights in the 1st-8th Amendments upon the states was definitely the legislative intention of the 14th Amendment. While that was, of course, a dissent, the SCOTUS reversed course and began ruling rights from the Bill of Rights to be incorporated upon the states soon after it.
    – reirab
    May 31, 2023 at 19:50
5

Not explicitly. The court isn't (as far as I'm aware) going to ask the lawmakers for a statement during a trial. This would be quite difficult, because typically the law is drafted by some government employee, finalized by the federal council and then debated, changed and amended by the parliament (whose members typically have very different goals and opinions). So who are you going to ask?

But what is common is that the court takes the reasoning presented to the parliament into consideration. The government writes, together with a proposed law, a lengthy report on why it thinks that law is needed. That might help the court to understand the intended meaning.

Additionally, since in Switzerland laws are officially provided in three languages, the court can take another language into consideration, which might be less ambiguous in a certain point.

5

Maybe an interesting detail, bills in Hungary are drafted together with an explanatory memorandum that is supposed to describe the societal, economical and legal reasons, intentions and justification, as well as the expected outcome and the aims it is set to reach. This is not just a kind of preamble of a few sentences but usually as long as the bill itself, or longer, enumerating section after section.

When done properly, not just as a formal description of merely repeating the individual sections of the bill without adding real details, this can help both the parliament during the debates and later, when the bill is enacted, to document the original intentions of the legislation in sufficient detail.

2

No, it would clearly breach of the separation of powers doctrine

Government in the Western tradition requires a clear separation of the roles of the legislature, the executive, and the judiciary. This may be explicitly in a written constitution (e.g. USA, France) or it may be a convention having constitutional force (e.g. UK).

Broadly speaking, the legislature writes the law, the executive administers the law, and the judiciary interprets the law. Legislators testifying as to how the law should be interpreted clearly breaks these roles.

There are practical difficulties too

The US has 535 legislators, are you going to get them all to testify as to what they meant? If not, which ones do you choose? If the law was passed in 2006, will you get that Congress to testify or the current one? What if it was in 1892 when everyone involved is long dead?

3
  • There are a bunch of problems with allowing legislators to vary the interpretation of a law after its enactment, but separation of powers isn't one of them. The ideal is for the legislators to control the interpretation by making the text of the law unambiguous.
    – Ben Voigt
    May 29, 2023 at 16:22
  • 4
    "Legislators testifying as to how the law should be interpreted clearly breaks these roles". It should be noted this doesn't mean that legislators' previous speeches won't have weight. For example, in Australia & Singapore Acts Interpretation Acts explicitly direct courts to consider eg the Second Reading speech. In Canada (Rizzo) and even in the UK (Pepper v Hart) the strict aversion to legislative history has fallen and courts will give weight to Hansard.
    – Levi
    May 29, 2023 at 18:50
  • " Legislators testifying as to how the law should be interpreted clearly breaks these roles." Specifically I would argue, that legislators wanting their law to be interpreted a certain way should have made that clear when writing the law... If legislators want to change how the judiciary perceives a certain law then they should amend it to make their intent clear. May 30, 2023 at 16:02
0

This happens in Germany; when a law is unclear, the Federal Court of Justice can request action by the legislature.

You must log in to answer this question.

Not the answer you're looking for? Browse other questions tagged .