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

School Choice: I Have Erred

I should point out, before the reader gets into this piece, that these are my personal thoughts. Right around last Labor Day, I suddenly had a thought. I quickly made a calculation and realized that, as of the day after Labor Day, I’ve worked full-time in public policy for 25 years – a quarter of a century. While there really is nothing fundamentally more special about a 25 th anniversary than a 24 th or 26 th one, it is a widely-recognized demarcation point. Therefore, it seems worthwhile to take time and write down reflections on my career. My work has touched on several policy areas, but I’ve been thinking a lot about public education lately. That’s the area I practically swam in when I started my career, so here are my thoughts. On the day after Labor Day in 1994 I started work for a member of the Texas House of Representatives. He was the member who always carried a voucher bill, an issue for which I was thrilled to work. By that time, my wife had homeschooled our dau...

Present Reforms to Keep the Ghost of State Questions Past from Creating Future Headaches

Oklahoma, like many western states, allows its citizens to directly participate in the democratic process through citizen initiatives and referendums. In a referendum, the legislature directs a question to the people — usually to modify the state constitution, since the legislature can change statutes itself. An initiative requires no legislative involvement, but is initiated by the people via signature gathering, and can be used to modify statute or amend the constitution. Collectively, the initiatives and referendums that make it onto the ballot are known as State Questions.   Recently, there have been calls to make it more difficult to amend the constitution. At least two proposals are being discussed. One would diversify the signature requirement by demanding that a proportional amount of signatures come from each region of the state. The other would require a sixty percent majority to adopt a constitutional amendment rather than the fifty percent plus one currently in place. ...

Lease the Turnpikes to Transform Oklahoma’s Road Infrastructure

Oklahoma can make a game-changing improvement in the quality of its roads, highways, and other transportation infrastructure, and in short order. Here’s how. Back in January , I proposed monetizing large state-owned assets and using the proceeds to fund long-term budgetary needs, like underfunded pensions and transportation infrastructure. A prime candidate for monetization is the turnpike system, which I proposed leasing to private investors on a long-term basis and using the substantial windfall to improve other transportation infrastructure. Other states (most notably, Indiana) have pursued this strategy to great success, with the result being not just a financial boon to road funding but also improved management and quality of the privately operated toll roads. I conservatively estimated leasing the turnpikes would generate north of a billion dollars. A new study indicates it would probably generate more like four times that . The Reason Foundation released a study last month prop...

Legislating through Litigation

Oklahoma’s Attorney General and trial courts appear to now be in the business of taxing industries and appropriating funds to state agencies. These are powers that the Oklahoma Constitution explicitly grants to the legislature . They are certainly not given to the Attorney General or the courts. But in the name of mitigating a “public nuisance,” these legislative powers have effectively been misappropriated.   The $572 million judgment recently handed down in Oklahoma’s opioid litigation looks an awful lot like a piece of legislation. It purports to tackle a broad societal problem by taxing a company alleged to have contributed to it and using the money to fund government agencies and programs aimed at ameliorating the problem. The Court and Attorney General justified this approach by claiming an “abatement plan” was needed to counter the so-called public nuisance of prescription drug abuse. Besides stretching the public nuisance theory far beyond its historical application ,...