Skip to main content

Protecting Your Rights: Interpreting Law by Its Plain Meaning


When deciding whether people have broken laws, should judges consider the intent of the legislators who wrote the law? Or simply consider the plain language of the law as written? Legal scholars have debated this question for decades. However, there is only one answer that protects We The People.

The Declaration of Independence states, “Governments are instituted among Men, deriving their just powers from the consent of the governed.” This means, among other things, that only laws actually voted on by the people (or their validly elected representatives) can be legitimately enforced. Any purpose not written into the law was not voted on, and so should not be imposed.


What does this have to do with interpreting laws? In the republican form of government, the citizens speak through their elected representatives. These representatives pass laws collectively, almost always through two legislative bodies (House and Senate) and an executive (President or Governor) signs off. Even in relatively small states, that’s a considerable number of people who have to agree for an idea to become a law. Odds are that there are several purposes at work to enact a single law.


Judges making guesses as to this unwritten legislative intent when penalizing a citizen is unfair, inconsistent, and unconstitutional. A judge might think he knows why legislators enacted a law, but legislators cast their votes for all kinds of reasons. We hope they do so for the public good. But some do so for selfish reasons. Some vote for a policy they dislike to curry favor for something they deem more important. Expanding a law beyond the plain text violates these first principles of representative government by consent of the governed. It also fails to put the public on notice as to what conduct is prohibited. What the judge believes to have been the legislative intent is not law. And judges are not appointed to make policy.


Imagine a law passed by a 5-member city council, prohibiting “vehicles in the park.” It passes by a vote of five to zero. But what qualifies as a vehicle? Does a bike? A dirt bike? A wheelchair? Does it apply only to street-legal vehicles? The first councilman lives near the park, and doesn’t like the noise of motorized vehicles near his house. He would allow bikes and wheelchairs but not dirt bikes. The second is an extreme environmentalist, and fears that anything with wheels will damage the fragile ecology of the park. He would not allow any of the potential “vehicles,” including bikes and wheelchairs. The third has a child with a physical handicap who needs a wheelchair, enjoys the park, but is frightened by bikes speeding past. He would allow wheelchairs but not bikes or dirt bikes. The fourth rides a dirt bike, and wants to keep cars and larger vehicles out of the park to ensure the path is clear for him to ride. He would allow all three. The fifth is indifferent, but votes for the ordinance to be agreeable. It is unclear what he would allow.


That’s two “for,” two “against,” and one “undecided” on bicycles; three “for,” one “against,” and one “undecided” on wheelchairs, and one “for,” three “against,” and one “undecided” on dirt bikes. If the judge and the public could read the minds of the legislators, it would be clear that dirt bikes are prohibited, wheelchairs are allowed, and it is unclear regarding bicycles. But the judge and the public can’t read minds. They can read the text of the law.

More importantly, the five members of the council didn’t agree on any one purpose. They didn’t reach a majority consensus. They only agreed that “vehicles” were prohibited.  So, no intention has been enacted by the consent of the people. Only the text of the law has been voted on, so only the text of the law is legitimately enacted.


So where does that leave principled textualists, who eschew constructing legislative intent? As much as possible, judges should give words in laws their commonly understood meaning. Because of this law’s lack of written purpose or definitions, there is still an ambiguity to be resolved: can someone be ticketed for riding their bicycle, dirt bike or wheelchair through the park? One answer is found in traditional definitions, easily accessible to the general public: the dictionary.


Dictionary definitions may sound trite, but they are often useful interpretive tools. Merriam Webster defines vehicle as “a means of carrying or transporting something (planes, trains, and other vehicles) such as a: MOTOR VEHICLE b: a piece of mechanized equipment.”


This textual source provides judges with black and white guidance, fair to the general public, that bikes and wheelchairs are okay (they are not mechanized), whereas motorized dirt bikes are prohibited. If the judge felt a ticket for a bicycle was too close to call, since it has some mechanized parts, he could also invoke the “rule of lenity”: where an ambiguous law is interpreted in favor of the accused. Here, that would likely allow bikes in the park. The City Council could always revise the law to prohibit them. This seems to be a just result, even though it doesn’t fully capture each member of the council’s intended prohibitions. 

The road to hell is paved with guesses at legislative intent. The road to a well-functioning republic, based on the consent of the governed, is paved with reliance on the actual text of the law.


Mike Davis is Research Fellow at 1889 Institute. He can be reached at mdavis@1889institute.org.

The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.


Popular posts from this blog

What if Legislators Were Licensed? Well, Just to Make a Point...

1889 Institute, as a general matter, objects to occupational licensing. We have written about it more than any other subject. The scant benefits simply do not outweigh the enormous costs to consumers and entrepreneurs, and  the  burdens that disproportionately impact the poor.   It must be noted that the remainder of this post is a work of satire. This should be obvious to anyone who has read even one of our papers, but each of the proposals below has an analogous provision in Oklahoma licensing laws. To those supportive of government-created cartels, these proposals might sound almost reasonable.  A material threat to the public safety and welfare has for too long gone entirely unregulated, unrestrained and unchecked. This menace has the power to corrode not only mere industries, but to corrupt the entire state economy. It’s no overstatement to say that the practitioners of this perilous profession hold the power to destroy democracy as we know it. After a...

About Those Roads in Texas

A s Sooner fans head south for the OU-Texas game next week, they will encounter a phenomenon most of us are familiar with: as you cruise across the Red River suddenly the road gets noticeably smoother. The painted lane stripes get a little brighter and the roadside “Welcome to Texas” visitors’ center gleams in the sunlight, a modern and well-maintained reminder of how much more money the Lonestar State spends on public infrastructure than little old Oklahoma. Or does it? Why are the roads so much, well… better in Texas? Turns out, it isn’t the amount of money spent, at least not when compared to the overall size of the state’s economy and personal income of its inhabitants. Research conducted by 1889 Institute’s Byron Schlomach reveals that Oklahoma actually spends significantly more on roads than Texas as a percentage of both state GDP and personal income . And that was data from 2016, before Oklahoma’s tax and spending increases of recent years. The gap is likely gr...

How Biden/Harris and Well-educated Sophisticates Are Wrong in the Age of COVID-19

Vice President-elect Kamala Harris often declared during the campaign that “We believe in science.” And judging by the tendency of the college-educated , especially among the sophisticates living on the coasts, to agree with Harris’s positions on everything from climate change to proper precautions amid COVID-19, belief in “science” seems to many a mark of knowledge and wisdom. But is it? The modern belief in “science” increasingly appears to be a religion wherein the words of certain recognized experts are received with the reverence once reserved for the Pope. A college diploma almost serves as a permission slip to suspend one’s own judgment and reason in favor of taking the word of certain experts to heart, especially if they work in government, certain universities, or gain media credence.   This tendency to turn experts and the media into high priests of all knowledge is nothing new. In 1986, 60 Minutes ran a story about a phenomenon people experienced in cars with automatic...

Liability In the Time of Covid: When Should Businesses Be Sued for the Spread of Infectious Disease?

When businesses reopen, what liability should they face related to the spread of Covid? Can businesses who remained open during the pandemic, or those who were open before the lockdowns began, be held liable if their customers caught the virus within the businesses’ walls? If so, what would a customer-plaintiff need to prove?   Defending even a meritless lawsuit can be prohibitively expensive. For this reason, it is important to define ahead of time what harms can lead to successful lawsuits. Limitations on causes of action can reduce unwarranted suits by kicking them out of the legal system earlier in the process. So what should businesses be liable for? There are two distinct categories of business liability that might arise from Covid. The first is products liability. The second is liability for infection spread within a business.   Products Liability First, any willful fraud perpetrated in relation to Covid should be severely punished. This would include ...