Elementary Statutory Interpretation: Rethinking Legislative Intent and History

Intent is unfortunately a confusing word.-Dean James Landis1So taken are we with models derived from ordinary conversation, we are inclined to ignore the formalities necessary for political discourse in a numerous and diverse society.-Jeremy Waldron2Text without context often invites confusion and judicial adventurism.-Senator Orrin Hatch3INTRODUCTIONIt is often said that statutory interpretation assesses meaning. This is true but incomplete. Poems and novels mean. Statutes are more than meanings. People do not march or vote based on poems or novels. Some have suggested that statutes are particular kinds of communicated meanings-commands to judges and citizens. This is also true but incomplete. Such a view imagines law made from "nowhere." Statutes are decisions made in an electoral and procedural context. It is no exaggeration to say that, without that context, democracy evaporates. A statute's legitimacy in our constitutional order depends upon context: that the law is the product of an elective, democratic process rather than autocratic fiat.Recently, I elaborated a theory of statutory interpretation foregrounding legislative decisionmaking as essential to determining a statute's meaning.4 The claim of that theory is that text is central but cannot be understood without looking at legislative context. Call this "legislative decision theory." That theory is subject to two important objections. Textualists claim that Congress, as a group, can have no intent, 5 and that it follows that one cannot look beyond the text. Call this the "group-intent objection." Textualists also argue that the only way to determine controlling text is by excluding legislative history. Call this the "legislative history objection." Purposivists are happy to invoke legislative history. Nevertheless, purposivists have never set forth a consistent theory of legislative history nor answered the "intent" question other than to substitute "purpose" for intent. In thisArticle, I aim to illuminate both the "group intent" and the "legislative history" objections.First, this Article addresses the "group-intent objection." Contrary to the implications of both textualism and purposivism, Congress has the functional equivalent of intent. Congress's functional equivalent of intent, like that of any group, depends upon sequential procedures. Procedures are how a group plans.6 The way to look at intent is not to imagine some meaning behind the meaning in an individual's head. Of course, Congress has no mind.7 Congress's procedures-its way of planning-is its way of having intent. When we consider Congress's intent, we are asking for the context in which Congress has legislated and that includes, most importantly, procedural context.Second, this Article addresses the legislative history objection. Any philosopher of language will tell you that plain meanings do not exist without an understanding of the communicative context of the speaker.8 If I say "I take the fifth," it may seem "plain" to lawyers that I am talking about the Fifth Amendment to the U.S. Constitution. Nevertheless, that is only because listeners have added their own context-a legal and judicial context-to the statement. "I take the fifth" could as well mean the fifth amendment to a bill in the Senate or the fifth doughnut in a line of doughnuts. Text, without context, can be radically indeterminate, a mere vessel in which to pour judicial assumptions.When Congress passes a statute, it does so against a background context of rules, procedures and deliberation. That context does not exist in anyone's head: it is public and constitutionally sanctioned.9 For years, we have called this context by the term "legislative history," but in fact that term is misleading in a number of ways that will become evident. There are important differences between statutory history (the history of the text of the statute), statutory usage (the semantic content as understood by members of Congress), and public documents sanctioned by the group (committee reports). …