In the recent debate over whether or not Obama is qualified to hold the office of president, there has been one topic which has received very little attention, but which is of paramount importance. That topic is "legislative intent". And I can see why the topic has largely been glossed over, because, as in most debates about "strict interpretation", the entire concept of "legislative intent" is a bit of a stumbling block. As we are about to discover.

Before I begin, let me make my own position clear on two issues. First, I am generally opposed to judicial activism, as you can read in my posts "Why Judicial Activism Hurts", "Interpretation and Activism", ""Empathy" Threatens not "Justice" but Predictability" and "Special Cases". I believe that consistent interpretation, holding as closely as possible to the understanding of the law at the time of drafting is generally desirable. On the other hand, I also see that "strict interpretation" is, in many senses, a pipe dream. While it is relatively easy to figure out the general understanding most people had of a law, or the way a law was generally interpreted when passed, figuring out precisely what the drafters thought it meant is impossible, as we shall discuss. So, while I do not like activism, I think insisting on "strict interpretation" is to ask for the impossible. (In addition, the entire reason we have a legislature and courts is that laws need to fit circumstances unimagined at the time of drafting, meaning there was no "intent" regarding some circumstances, so it would be impossible to adhere to an intent that did not exist. And while we can develop our practices based on an extrapolation from the original practices, to call such an extrapolation "strict interpretation" is to stretch the meaning quite badly.)

On the second topic, the specific question of Obama's eligibility, I tend to think he is eligible ("A Brief Follow Up" and "Not A Smoking Gun") and that most such claims do not have any legal support. In addition, as I described in "Wrong is Wrong", "Hurrah For Murchison" and "Calm Down a Little", I think putting forward such arguments tends to make us appear either foolish, insane or simply embittered to both independents and moderates within our own party, as well as driving away disappointed Democrats who may be looking for an alternative, and so ends up doing more harm than good. However, this topic deserves a post all its own, so I ask that readers not comment on this topic yet, as I plan to write on my beliefs about Obama's eligibility very soon, which will provide a much better explanation of my position, and a more appropriate forum for comments on that topic.

Now, to return to our original topic.

Before we proceed in talking about legislative intent, we need to look at laws themselves. As legislative intent presupposes that we can discern the purposes for which a specific law was intended, our first stop needs to be the legislative process, to look at how bills are created, argued, modified, passed, reconciled, and eventually become binding law.

Laws, in general, originate as the product of an individual, but only in the most basic sense. That is, the idea "we should ban X" or "we should regulate Y" is originally proposed by a single voice. Beyond that, not a single step involves a single individual, and, even more important for our purposes, not a single step is recorded objectively by an impartial observer. The early phases, the drafting, is a quiet, private step, with no real record of the purposes for which the law was intended. There is a record of the supposed intent, often included as a preamble, or else as notes appended to the bill, but such statements are usually either intended to justify why such a bill is a federal rather than state question. or else are intended to distract attention from the true purpose of legislation. In fact, if one were to review the published purpose of every law, and compare it to the actual laws embodied in the following text, he would be quite shocked to see how little the two have in common. So, from the earliest phases of the process, it is almost impossible to glean a hint of legislative intent.

The later phases, the public debate either in committee or in the legislature, is carried out in the grandstanding atmosphere where politicians say what they want heard, not what they mean. All of which means that our records of the intent of each person endorsing the law is not a record of their true intent, but of their public proclamation of what they intend. So, we hear "Bill X must pass to keep subsidized Japanese electronics off the market", not "Senator Y is getting paid off by the electronics industry to allow them to prosper despite their inefficiency. Which means that the public pronouncements in debates are, at best, a very unreliable indicator of legislative intent.

But even if we allow for that uncertainty, allow that some statements of intent may be cover for other political motives, we run into still other problems. And those problems are due to the other aspect of lawmaking I mentioned above. Not only is lawmaking a public process, which causes many politicians to make false statements, but it is also a group process. Which means that we have no single "legislative intent". Senator A may vote for one purpose, senator B for another, senator C for still another. And other senators may say they are voting for one reason and then vote for a completely different one. Not to mention that some senators may publicly claim that the law has one purpose, while knowing the law truly will never accomplish that purpose. Which means, rather than a single "legislative intent", we get a confused set of many different legislative intents, each one of them possibly honest or possibly offered to distract form the true reason.

Even if we did not have that confusion, even if every legislator said they were voting for the bill to accomplish X, and even if we had no reason to doubt them, still the "legislative intent" would be problematic. After all, only a small fraction of legislators speak on any given topic. While many more may add their thoughts to the printed record, we still rarely have anything approaching a statement from the majority of legislators. Which means that all we know about most who voted for a given bill is that they supported it. We don't even know if they heard all those arguments for the law form which we try to glean "legislative intent". They could have been sitting outside the chamber the whole time, only returning to cast their "yea" vote. Which means, even under nearly ideal circumstances, legislative intent is a fiction. We simply do not know why people voted for a given law.

Some will ask "but what of the intent of the drafter?" I know I argued that most bills are drafted by committee, but in some cases (eg. the 14th Amendment) there is a primary author, someone who not only drafted the proposed law, but who also has made no secret of what he hopes the law to accomplish. Surely, in that case, we should follow his intent, shouldn't we?

Yet even then, I think the legislative intent is less clear than is commonly thought. For example, suppose that the drafter of a bill accidentally left in a massive loophole. Suppose that every other legislator noticed this loophole, and their support was predicated on the existence of this oversight. However, when a later court case should arise, what should the court do? If they abide by the intent of drafter, then they would have to say the loophole should be closed, but the intent of everyone else voting for the bill was that the loophole remain open. But if they leave open the loophole, then it violates the intent of drafter. Of course most cases are not so clear, but it is just a matter of degree. The intent of the man who drafted a law is not necessarily the intent of those voting for the law, nor even their understanding of how the law will be interpreted. Which means, even in this "perfect" situation, it is far from simple to discern "legislative intent".

Which is why legislative intent is, quite rightly, given so little weight. We can really never know why a given law was passed. What we can know is what the legislators thought it would do. As legislators generally assume laws will be interpreted in light of laws in force at the time, as well as the common understanding of "terms of art", the best approach, instead of legislative intent, is to interpret the laws in terms of (1) common law at the time it was passed, (2) the understanding of legal terminology at the time, (3) the courts' interpretation of similarly worded laws at that time and (4) the precedents of the time relating to similar legal issues. Not only will such an approach give a better approximation of what the legislators expected to happen than legislative intent, it will also make for a more consistent ruling.

After all, as I have argued many times, consistency, even more than strictly following the intent of legislators, is what we desire from law. Even if every law were interpreted improperly, enforced in a way never anticipated by the legislature, if it were still consistently applied, we would benefit form that consistency. On the other hand, if debates over legislative intent allow for a fluctuating reading of the law,  with changing understandings forcing the law to change from day to day, we would be much the worse for it. Better to have a consistently applied mistake than an inconsistent effort to find the truth.

POSTSCRIPT

As I said in the text above, I plan to write soon about my understanding of the most recent claims about Obama's ineligibility to hold the office of president. I may not get to it immediately, but please wait for the complete argument.