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