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

1889 Institute's Statement Regarding School Closures

The 1889 Institute, an Oklahoma think tank, has released the following statement regarding Joy Hofmeister’s proposal to keep schools closed for the remainder of the school year. We at the 1889 Institute consider Joy Hofmeister’s proposal to close Oklahoma’s schools for the rest of the school year a gross overreaction to the coronavirus situation. Even in the best of times and circumstances, suddenly shifting every student in the state from traditional classrooms to online distance learning will have negative educational consequences. This in addition to the economic burden on two-earner families forced to completely reorder their lives with schools closed. We believe many of our leaders have overreacted to worst-case scenarios presented by well-intended health experts with no training or sense of proportion in weighing the collateral damage of shutting down our economy versus targeting resources to protect the truly vulnerable. We say reopen the schools and stop the madness. ...

If Licensing Protects Consumers, Why Are Licensing Laws Blatantly Anti-Consumer?

Once upon a time, there was a small island whose economy revolved around scuba-diving tourism. Unfortunately, the island elected legislators who considered scuba dangerous. Inexperienced divers would surface too quickly and get the bends. The legislature, wanting to make diving feel safer, passed a law that banned sharks in designated scuba diving zones. There were no known cases of sharks attacking divers, nor were divers being frightened into surfacing too quickly by sharks. This is what most occupational licensing schemes look like. Legislators act, giving the public a sense of security, and giving powerful industries protection from competition. The laws do almost nothing to help consumers. Not only are they futile, they are also deceptive.   Some licensing regimes, like the Oklahoma Real Estate Broker ’ s Act, take the deceit one step farther. Instead of just telling the sharks not to eat people (which they weren’t doing anyway) the act does the equivalent of gathering a group...

COVID-19 Proves Our Schools Are Social Service Centers First, Education Institutions Second

There is no way the 180-day (or 1,080 hours) school year can be completed by the end of previously established school calendars for this year given the fact that spring break has now already been effectively extended an additional two weeks. One option would have been to extend the school year into the summer. Given the level of family togetherness being experienced now, and the fact that incomes are being lost and many would be interested in making up the losses, it’s not unreasonable to expect vacation plans to be radically remade or canceled anyway. Instead, Oklahoma’s State Board of Education precipitously closed the schools and did not call for an extension of end-of-school dates. Thus, the summer option has been foreclosed. The State Board is within its rights. Oklahoma statutes (70 O.S. § 1-109 E) state, “A school district may maintain school for less than a full school year only when conditions beyond the control of school authorities make the maintenance of the term imp...

Follow the Science: Eliminate Social Distancing and Focus Resources to Protect the Vulnerable

As the country entered into an election year, COVID-19 reared its head and became an unusual campaign issue. Exposed to extreme politization, facts were buried in an abundance of misinformation perpetuated by the invocation of “science.” With the overly polarized rhetoric of stump speeches mercifully behind us, it is time to return to the rigor and integrity in research that public policy deserves. Now that the polls have closed, let’s move on, dig into the facts, and, indeed, follow the science.   Upon the outbreak of the novel coronavirus, SARS-CoV-2 and the COVID-19 illness, little was known about it. Symptomatically, it was even difficult to tell whether or not one had the disease given that the list of symptoms seemed to expand continually. Despite what little information existed, there was no lack of self-proclaimed experts claiming the knowledge necessary to contain the disease. With the state's presumptive authority and dubious expertise, numerous state and local governmen...