Boston College

1613

ELEMENTARY STATUTORY

INTERPRETATION: RETHINKING

LEGISLATIVE INTENT AND HISTORY

VICTORIA F. NOURSE*

Abstract: This Article argues that theorists and practitioners of statutory inter-

pretation should rethink two very basic concepts—legislative intent and legisla-

tive history. Textualists urge that to look to legislative history is to seek an intent

that does not exist. This Article argues we should put this objection to bed be-

cause, even if groups do not have minds, they have the functional equivalent of

intent: they plan by using internal sequential procedures allowing them to project

their collective actions forward in time. What we should mean by legislative “in-

tent” is legislative “context.” For a group, context includes how groups act—their

procedures. Once one accepts this position, we must rethink the very concept of

legislative history. Legislative history is not a search for a mental state, behind

the words, but a search for decisional context. We should give up talking about

legislative history, replacing it with the far more helpful notion of legislative de-

cision and statutory context.

reserved. My thanks to all those at faculty workshops at Yale, Cornell, Georgetown, George Mason,

and Minnesota law schools. I am also grateful to Bruce Ackerman, Anne L. Alstott, Michael Dorf,

Antony Duff, William Eskridge, Jr., Abbe R. Gluck, Gregory Klass, Jed Rubenfeld, Louis Seidman,

Scott J. Shapiro, Matthew C. Stephenson, and Robin West. Special thanks to David Luban and Larry

Solum for particularly important suggestions.

1614 Boston College Law Review [Vol. 55:1613

Intent is unfortunately a confusing word.

—Dean James Landis

So taken are we with models derived from ordinary conversation, we are

inclined to ignore the formalities necessary for political discourse in a nu-

merous and diverse society.

—Jeremy Waldron

Text without context often invites confusion and judicial adventurism.

—Senator Orrin Hatch

INTRODUCTION

It is often said that statutory interpretation assesses meaning. This is true

but incomplete. Poems and novels mean. Statutes are more than meanings.

People do not march or vote based on poems or novels. Some have suggested

that statutes are particular kinds of communicated meanings—commands to

judges and citizens. This is also true but incomplete. Such a view imagines law

made from “nowhere.” Statutes are decisions made in an electoral and proce-

dural context. It is no exaggeration to say that, without that context, democracy

evaporates. A statute’s legitimacy in our constitutional order depends upon

context: that the law is the product of an elective, democratic process rather

than autocratic fiat.

Recently, I elaborated a theory of statutory interpretation foregrounding

legislative decisionmaking as essential to determining a statute’s meaning.

The claim of that theory is that text is central but cannot be understood without

looking at legislative context. Call this “legislative decision theory.” That theo-

ry is subject to two important objections. Textualists claim that Congress, as a

James M. Landis, A Note on “Statutory Interpretation,” 43 HARV. L. REV. 886, 888 (1930).

JEREMY WALDRON, LAW AND DISAGREEMENT 70 (1999).

Orrin Hatch, Legislative History: Tool of Construction or Destruction, 11 HARV. J.L. & PUB.

POL’Y 43 (1988).

Victoria F. Nourse, A Decision Theory of Statutory Interpretation: Legislative History by the

Rules, 122 Y

ALE L. J. 70, 99 (2012). I originally described this as “decision theory” simpliciter. Id. at

73 n.4 (explaining this distinction). Here, I use the term “legislative” decision theory to distinguish it

from welfarist accounts. The term “decision” remains crucial as it more properly conveys the legiti-

macy of congressional processes, and avoids the deep ambiguities of the term “intent.” See infra notes

57–88 and accompanying text.

2014] Rethinking Legistlative Intent & History 1615

group, can have no intent,

and that it follows that one cannot look beyond the

text. Call this the “group-intent objection.” Textualists also argue that the only

way to determine controlling text is by excluding legislative history. Call this

the “legislative history objection.” Purposivists are happy to invoke legislative

history. Nevertheless, purposivists have never set forth a consistent theory of

legislative history nor answered the “intent” question other than to substitute

“purpose” for intent. In this Article, I aim to illuminate both the “group intent”

and the “legislative history” objections.

First, this Article addresses the “group-intent objection.” Contrary to the

implications of both textualism and purposivism, Congress has the functional

equivalent of intent. Congress’s functional equivalent of intent, like that of any

group, depends upon sequential procedures. Procedures are how a group plans.

The way to look at intent is not to imagine some meaning behind the meaning in

an individual’s head. Of course, Congress has no mind.

Congress’s proce-

dures—its way of planning—is its way of having intent. When we consider

Congress’s intent, we are asking for the context in which Congress has legislated

and that includes, most importantly, procedural context.

Second, this Article addresses the legislative history objection. Any phi-

losopher of language will tell you that plain meanings do not exist without an

understanding of the communicative context of the speaker.

If I say “I take the

fifth,” it may seem “plain” to lawyers that I am talking about the Fifth

Amendment to the U.S. Constitution. Nevertheless, that is only because listen-

ers have added their own context—a legal and judicial context—to the state-

ment. “I take the fifth” could as well mean the fifth amendment to a bill in the

Senate or the fifth doughnut in a line of doughnuts. Text, without context, can

be radically indeterminate, a mere vessel in which to pour judicial assump-

tions.

When Congress passes a statute, it does so against a background context

of rules, procedures and deliberation. That context does not exist in anyone’s

ANTONIN SCALIA, A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 17 (Amy

Gutmann ed., 1997) (“Government by unexpressed intent is similarly tyrannical. It is the law that

governs, not the intent of the lawgiver.”).

The planning of an idea is of notable importance. For further discussion, see generally MICHAEL

E. BRATMAN, FACES OF INTENTION: SELECTED ESSAYS ON INTENTION AND AGENCY (Ernest Sosa et

al. eds., 1999); S

COTT J. SHAPIRO, LEGALITY (2011).

As we will see, shifting from “intent” to “purpose” does not solve the problem. See infra notes

51–89 and accompanying text.

Semantic content is exceedingly sparse, as Scott Soames and other philosophers of language

have shown. Scott Soames, Vagueness in the Law, in T

HE ROUTLEDGE COMPANION TO PHILOSOPHY

LAW 95, 97 (Marmor Andrei ed., 2012). Many statutes are written using terms that, from a philos-

opher’s perspective, are “extravagantly vague,” such as negligence or reasonableness. Timothy En-

dicott, The Value of Vagueness, in P

HILOSOPHICAL FOUNDATIONS OF LANGUAGE IN THE LAW 18

(Andrei Marmor & Scott Soames eds., 2011).

1616 Boston College Law Review [Vol. 55:1613

head: it is public and constitutionally sanctioned.

For years, we have called

this context by the term “legislative history,” but in fact that term is misleading

in a number of ways that will become evident. There are important differences

between statutory history (the history of the text of the statute), statutory usage

(the semantic content as understood by members of Congress), and public

documents sanctioned by the group (committee reports). Both textualism and

purposivism are poorer for failing to parse these different meanings of legisla-

tive history. Both should give up the notion that legislation operates according

to coherent narrative principles as if what Congress did was a “history.” Legis-

lative “history” should be replaced with legislative “context,” informed by the

view that statutes are not stories, but elections.

In Part I of this Article, I argue that Congress does have the functional

equivalent of intent, but this requires us to jettison the standard “ghostly

minds” definition of “intent.” My argument rejects a claim that has captured

the imaginations of great legal minds from Max Radin

to Ronald Dworkin

to Justice Antonin Scalia. If it is true that government by “unexpressed intent”

is decidedly tyrannical,

government by constitutionally supported procedures

is decidedly democratic. Next, I show how recent work in positive political

theory and philosophy on group agency supports my views and should render

us more skeptical of claims implying that groups—from Congress to Har-

vard—cannot act in ways we recognize every day.

In Part II of this Article, I address the all-or-nothing legislative history

debate. I argue that both textualists and purposivists need a more realistic and

disciplined understanding of legislative history. Basic notions like the fact that

statutes are elections—some texts win and some lose—must be incorporated

into the quest for legislative context. Lawyers and judges should stop imposing

narratives on a process that is built to be redundant and oscillating. This Article

See U. S. CONST. art. I, § 5 (providing that each House of Congress may “determine the rules of

its proceedings . . . .”).

See Max Radin, Statutory Interpretation, 43 HARV. L. REV. 863, 870 (1930) (arguing against

intent). As John Manning explained, “[t]he textualists’ intent skepticism can be traced to the work of

Max Radin, a noted legal realist.” John F. Manning, The Absurdity Doctrine, 116 H

ARV. L. REV.

2387, 2410 n.81 (2003) (recapitulating Radin’s argument against intent); see William N. Eskridge, Jr.,

Legislative History Values, 66 C

HI.-KENT L. REV. 365, 372–73 (1990) (discussing the textualists’ debt

to Radin).

See RONALD DWORKIN, LAW’S EMPIRE 314, 335–36 (1986) (“So long as we think legislative

intention is a matter of what someone has in mind and means to communicate by a vote, we must take

as primary the mental states of particular people because institutions do not have

minds, and then we

must worry about how to consolidate individual intentions into a collective, fictitious group inten-

tion.”);

see also RICHARD EKINS, THE NATURE OF LEGISLATIVE INTENT 19 (2012) (arguing that

Dworkin asserts as a “tacit premise . . . that the legislature cannot have an intention because it is an

institution.”).

See SCALIA, supra note 5, at 17.

2014] Rethinking Legistlative Intent & History 1617

concludes with a plea for more understanding about how statutes are made in

building any democratic theory of statutory interpretation.

THE GROUP-INTENT OBJECTION RECONSIDERED

It is no exaggeration to say that the two major theories of statutory inter-

pretation judges use today—textualism and purposivism—are built upon the

conceptual ashes of “legislative intent.” Legal process theory—dominant in the

field for the last half of the twentieth century

—shifted the terrain to “pur-

pose” because of realist critiques of “intent.” When textualism arrived in the

1980s, it put its arms around the realist critique declaring that Congress had no

intent—interpreters should look only at text. In both cases, textualists and pur-

posivists launched their campaigns from the same conceptual starting place—

the question whether Congress could have an “intent.”

In this Part, I will consider that objection at length and respond that Con-

gress does in fact have a functional equivalent of intent. I begin by providing a

background on legislative decision theory in Section A. In Sections B and C, I

examine the modern theoretical objections to intent and the meaning of intent.

In Section D, I explain why Max Radin’s view of intent was incorrect. This

Part concludes with a discussion of group intent and group agency.

A. A Brief Background in Legislative Decision Theory

If legislative decision theory were found on a bumper sticker, it might

read “Statutory Interpretation Finally Goes to Congress.” None of the primary

theories of statutory interpretation have a positive theory of how Congress

works.

Chapter 5 of Hart & Sacks’s The Legal Process, entitled “The Legis-

lative Process,” weighs in at a healthy 314 pages, but less than five percent of

those pages deal with congressional rules or procedure.

Justice Scalia’s fa-

Legal process has been the preferred theory of those who propound it, such as Justice Stephen

Breyer, and the major target of those who reject it, such as Justice Antonin Scalia. See generally Wil-

liam N. Eskridge, Jr., Nino’s Nightmare: Legal Process Theory as a Jurisprudence of Toggling Be-

tween Facts and Norms, 57 S

T. LOUIS U. L.J. 865 (2013) (discussing Justice Breyer’s and Justice

Scalia’s viewpoint on legal process theory). Both Justices were schooled in the technique at Harvard.

Id. at 866. Thus, it is not surprising that it would be dominant, in positive and negative forms, on the

Supreme Court. See id.

Cf. Jerry L. Mashaw, The Economics of Politics and the Understanding of Public Law, 65

HI.-KENT L. REV. 123, 152 (1989) (“A normative theory of interpretation without a positive theory

of politics may lead us simply to defeat our own ends.”).

See generally HENRY M. HART & ALBERT M. SACKS, THE LEGAL PROCESS: BASIC PROBLEMS

IN THE

MAKING AND APPLICATION OF LAW (1958) (discussing the legislative process, but devoting

little attention to congressional rules and procedures). To its great credit, the materials do address one

of Congress’s most important functions, appropriations, and reprint at length hearings on a matter

1618 Boston College Law Review [Vol. 55:1613

mous Tanner lectures make mention of some congressional processes in a par-

agraph or two, ultimately deeming congressional intent impossible.

Legislative decision theory argues that the meaning of a federal statute

cannot be determined without knowing basic principles of Congress 101,

akin to the kind of knowledge accessible to a first year law student about the

elements of a trial. From there, it seeks to reverse engineer statutory text. Put

in other words, the theory looks for how textual decisions are made within the

context of a set of sequential decisions.

Knowledge of basic procedural

moves is essential context for understanding routine practices. Consider a

game of chess: if you tried to make sense of it, with no knowledge of the rules,

the players’ actions might seem strange chaotic moves on a checkered board.

Similarly, trying to make sense of a trial transcript without knowing the basics

of trial procedure could yield just as much confusion. So, too, it should seem

strange to try to understand Congress without understanding its institutional

procedures.

If one can teach students the fine-grained elements of the hearsay

rule, I am quite sure one can teach them the difference between a conference

report and a committee report.

Legislative decision theory differs from textualism. Like all theories of

statutory interpretation, it starts with the text. But it does not end with text. It

defines “textualism” as the practice of drawing boundaries around text and

involving flood insurance which, today after various tremendous hurricanes, appears surprisingly

relevant. See id. at 963–87.

SCALIA, supra note 5, at 31, 32. Justice Scalia writes, “[g]overnment by unexpressed intent is

similarly tyrannical. It is the law that governs, not the intent of the lawgiver.” Id. at 17. Furthermore,

he posits that “with respect to 99.99 percent of the issues of construction reaching the courts, there is

no legislative intent.” Id at 32; see William N. Eskridge, Jr., The New Textualism, 37 UCLA

L. REV.

621, 651–52 (1990) (arguing that Justice Scalia adopted Radin’s critique against collective intention

and describing the notion “[t]hat a majority of both houses of Congress . . . entertained any view with

regard to [relatively minor] issues” as “utterly beyond belief”).

Legislative decision theory does not require that one cultivate the kind of knowledge of Con-

gress akin to that of its most erudite students, just as knowledge of civil or appellate procedure does

not require memorization of the various rules governing the differing filing procedures for briefs in

differing courts of appeals.

See Nourse, supra note 4, at 93–98.

Some will reply that aspects of the process are well known, but, in fact, it is fairly evident from

caselaw that the most learned of jurists remain confused about the most basic congressional proce-

dures. See id. at 94–95 (demonstrating that the Supreme Court did not consider the rules of Congress

when attempting to resolve ambiguous statutory language). Others will reply that the rules are only

part of a more complex process. It is often said that we live in an age of “unorthodox lawmaking” and

new forms of congressional procedures. But similar changes have occurred in the judiciary, for exam-

ple, in civil procedure, without making nonsense of a trial’s basic sequential ordering. See B

ARBARA

SINCLAIR, UNORTHODOX LAWMAKING: NEW LEGISLATIVE PROCESSES IN THE U.S. CONGRESS, at ix

(4th ed. 2012). For example, no one thinks that managerial judging means that motions come after

jury instructions. So, too, no one should think that in an age of unorthodox lawmaking cloture comes

before bill introduction.

2014] Rethinking Legistlative Intent & History 1619

claiming that the text’s meaning can be exhausted by semantic content plus

syntax (and perhaps the text of similar statutes or canons).

By contrast, legis-

lative decision theory argues that semantic meaning of congressional text re-

quires resort to congressional context. Even when semantic content appears

clear from the face of the statute, the inquiry cannot stop. A faithful agent of

Congress must understand Congress’s meaning and that meaning can only be

found by looking to Congress’s textual decisions in procedural context.

Legislative decision theory also differs from purposivism. It focuses on

how textual decisions were made—what one might call statutory history, rather

than purposes. The point is not to roam around legislative history, but to target

the relevant point of decision. Legislative decision theory actually makes the

search for the point of decision easier and faster by targeting the relevant texts

(substantially aided by new computer databases),

and starting the process

from the back-end of lengthy lawmaking efforts. This approach acknowledges

the vital importance of statutory ends—the “mischief” Blackstone once impor-

This is the definition I take to be used by textualists who draw a strong distinction between

textualism and purposivism. See John F. Manning, Lessons from a Nondelegation Canon, 83 N

OTRE

DAME L. REV. 1541, 1554 n.42 (2008) (“The main dividing line on the present Supreme Court is

between textualists, who emphasize the conventional semantic meaning of the enacted texts, and pur-

posivists, who emphasize the goals that Congress sought to pursue in enacting the text.”). Textualists

maintain that they are not literalists in that semantic content may go beyond the “four corners of the

text” to include “specialized conventions and linguistic practices peculiar to the law,” as well as “off-

the-rack canons of construction peculiar to the legal community,” which help to flesh out semantic

content. See John F. Manning, What Divides Textualists from Purposivists?, 106 C

OLUM. L. REV. 70,

81, 82, 83 (2006).

Positive political theory supports this emphasis on procedure. We know, for example, that

whatever stability or equilibrium can be found in politics is a result of rule-following. See Kenneth A.

Shepsle, Institutional Arrangements and Equilibrium in Multidimensional Voting Models, 23 A

M. J.

POL. SCI. 27, 29 (1979) (“[I]nstitutional structure—in the form of rules of jurisdiction and amendment

control—has an important independent impact on the existence of equilibrium . . . .”). This was Ken-

neth Shepsle’s great insight in his rebuttal to logical claims made about democracy’s inherent irration-

al character associated with Kenneth Arrow’s cycling theorem. Id. Dan Rodriguez and Barry

Weingast, for example, have urged that it is irrational not to look to legislative history because legisla-

tive process provides more, rather than less, information about legislative meaning. Daniel B. Rodri-

guez & Barry R. Weingast, The Positive Political Theory of Legislative History: New Perspectives on

the 1964 Civil Rights Act and Its Interpretation, 151 U.

PA. L. REV. 1417, 1422–23 (2003). Unlike

some claims made by positive theorists, however, legislative decision theory is parsimonious. It re-

quires no application of theories developed within the political science literature, voting patterns, or

concepts that would be difficult, if not impossible, for judges to apply.

Some argue not that intent is impossible as a logical matter, as did Radin, but as a practical

matter. See Adrian Vermeule, Legislative History and the Limits of Judicial Competence: The Untold

Story of Holy Trinity Church, 50 S

TAN. L. REV. 1833, 1839 (1998). The practicality objection de-

serves greater analysis but has been largely overtaken by technology. Computer databases now allow

precise searches for terms using a keyboard’s “Control F” function as a tool. I have timed students

while they found discussions of particular amendments, cloture, and particular terms. Searches that

would have once taken lengthy periods now take minutes.

1620 Boston College Law Review [Vol. 55:1613

tuned statutory interpreters to identify.

But it argues that we only recur to

such reasoning as a matter of statutory construction rather than interpretation,

when all resources about textual meaning have been exhausted.

To both textualists and purposivists, legislative decision theory emphasiz-

es the importance of legislative context in two ways. First, it insists that if one

is going to read legislative history, one should read it correctly. Second, and

more controversially, it argues that reading legislative history correctly is cru-

cial to reading a statute’s text. In major statutory interpretation cases, both tex-

tualists and purposivist judges have misread legislative history in ways that

should be more obvious. No one confuses a dissenting opinion with a majority

opinion, nor should one confuse losers’ with winners’ legislative history.

Everyone knows that key amendments passed after basic provisions should be

considered very important text. Finally, some committees, namely conference

committees, cannot change bill text agreed upon by the House and the Senate.

Yet even textualists have failed to recognize that, in some cases, the text they

find so crucial, absurd and even unthinkable, is text any member of Congress

would devalue, harmonize, or ignore precisely because it was added by a part

rather than the whole of Congress.

To summarize: although this is not the venue in which to explicate the

normative bases of the theory, the point is to focus on democratic contexts ra-

ther than judicial ones. Without self-conscious judicial constraint, there is a

risk that judges will simply write the law that they want. If Congress’s context

is not considered, it will be the judge’s context that determines the choice of

text and its meaning. The question the interpreter must ask is: what did Con-

gress decide? And that question cannot be answered if one does not know the

rules by which Congress makes decisions. At the very least, one cannot be a

faithful agent to a principal to whom one has sworn willful (textualist) or lazy

(purposivist) blindness.

1 WILLIAM BLACKSTONE, COMMENTARIES *58,*61.

When purposivists attribute a purpose to Congress, they are imposing, not finding, Congress’s

meaning. This may be a proper theory of statutory construction. There are good reasons to believe, for

example, that a purposivist inquiry catches legislative meaning at its likely level of generality. If one

is to attribute meaning to members, there are reasons to believe that members are likely to understand

and communicate the meaning of legislation in broad, generalist, terms. Rather than a fine-grained

analysis of text, they are likely to vote on how the bill will be seen by voters, who are not experts in

legal texts.

Nourse, supra note 4, at 75.

See id. at 94–95 (further elaborating on this idea).

2014] Rethinking Legistlative Intent & History 1621

B. Modern Theoretical Objections To Legislative Intent

It should seem strange that we still talk of legislative intents rather than

legislative decisions. We write easily of Supreme Court decisions as “deci-

sions.” That the Supreme Court may change its “mind”—that the Court may

overturn its own precedent—does not prevent us from calling its work “a deci-

sion.” That the decision is partial—that the Court may divide 5-4—does not

prevent us from calling its work “a decision.” That the decision is in part dele-

gated—that the Court allows clerks to draft opinions—does not prevent us

from calling its work “a decision.” We dub the Supreme Court’s written work a

“decision”—however subject to change or division or delegation—because its

action has a finality within the judicial world. All of this could be said, but is

not, of Congress’s decisions in committee reports or in text, which have mean-

ing within a legislative world. Reports and votes and text are public acts, even

though subject to revision, delegation or complete reversal. And, yet, there is

no more basic linguistic practice in statutory interpretation than describing

these public acts as “legislative intent.”

The term “legislative intent” is as ancient as American

and British statu-

tory interpretation.

Nowhere is its meaning more important, however, than

when it comes to the “group-intent objection”— the claim that Congress can

One might ask why we do not look for the Supreme Court’s intent. In fact, we do: when the

meaning of a Supreme Court decision is unclear, or even unfortunate or contentious, we quickly resort

to procedural context to determine meaning. So, for example, if a concurring fifth vote is necessary to

reach a result, the opinion of a single justice may become the meaning of the Court. See, e.g., Youngs-

town Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 660 (1952). This follows from the basic procedural

principle that a decision of the Court is a decision by a majority of the members of the Court. One

might contend that, even if this is true, one does not look “behind” individual opinions to “cert” mem-

os and other pre-opinion documents to find meaning. We do not do this for the same reasons we do

not look to individual representatives’ statements to find the meaning of a majority-passed statute; an

individual justice has no authority to speak for the Court, just as individual senators have no authority

to speak for the U.S. Senate. As this footnote shows, in cases where meaning is uncertain and matters,

we do look “behind” the meaning of a majority opinion to find the central “agreed-upon” doctrine,

even to the extent of relying upon the opinion of an individual justice. Rules matter to meaning.

Change the rules of majority voting in the court and you will change the meaning of a decision. We

might, for example, have a rule that a precedent only existed if there were nine votes or six votes, in

which case our understanding of the meaning of a 5–4 decision would change. Indeed, it would be no

decision at all.

See Helms’ Lessee v. Howard, 2 H. & McH. 57, 94 (Md. 1784) (“The intent of the legislature

is to be collected from all parts of the act.”); Robin v. Hardaway, 1 Jeff. 109, 118 (Va. 1772) (quoting

Blackstone on the “intent of the legislature”).

See BLACKSTONE, supra note 23, at *59 (“The fairest and most rational method to interpret the

will of the legislator, is by exploring his intentions at the time when the law was made, by signs the

most natural and probable.”); see also T

HOMAS HOBBES, LEVIATHAN, ch. XXVI, at 133 (Empire

Books 2011) (1651) (“[I]t is not the Letter, but the Intendment, or Meaning; that is to say, the authen-

tique Interpretation of the Law (which is the sense of the Legislator,) in which the nature of the Law

consisteth.”); see also J

OHN FINNIS, AQUINAS 255–58, 257 n.19 (1998).

1622 Boston College Law Review [Vol. 55:1613

have no intent.

The “group-intent objection” was first proposed in a seminal

article written in the 1930s by the realist-skeptic Max Radin.

His argumenta-

tive ax was blunt: A group legislature has no intent precisely because of its col-

lective character:

“[t]he intention of the legislature is undiscoverable in any

real sense . . . .”

Radin’s critique has become a classic in the legal theory of

realism. For our purposes, the argument is more important for its extraordinary

lasting power and extravagant effect on statutory interpretation theory. Citation

to Radin is ubiquitous by both textualists and purposivists.

In the 1980s and 1990s, Justice Scalia embraced Radin’s critique as the

baseline from which to launch his plea for textualism and against purposivism:

there being no collective intent, text alone should govern.

Of course, Radin,

the left-wing realist-skeptic, would have been shocked to learn that his ap-

proach had been appropriated by an avowed formalist conservative.

This re-

versal of fortune, nevertheless, was made possible, in part, because of intellec-

See Radin, supra note 10, at 870 (proposing the “group intent objection”).

See generally Radin, supra note 10.

Id. at 870.

Id. For purposes of this Article, I define the thesis in these terms: Radin (and his followers) do

not think it literally impossible to form a group intent; instead, they demand that each person in the

group have the same mental state, so that it is practically impossible. See id. My thanks to Larry So-

lum for making this point to me.

For only some of the citations to Radin’s intent argument by two prominent statutory interpre-

tation figures, see the work of purposivist William N. Eskridge, Jr. and textualist John F. Manning.

See, e.g., William N. Eskridge, Jr., Dynamic Statutory Interpretation, 135

U. PA. L. REV. 1479, 1507

n.113 (1987); William N. Eskridge, Jr., Gadamer/Statutory Interpretation, 90 C

OLUM. L. REV. 609,

635 n.118 (1990); William N. Eskridge, Jr., Public Values in Statutory Interpretation, 137 U.

PA. L.

REV. 1007, 1012 n.13 (1989); William N. Eskridge, Jr. & Philip P. Frickey, Statutory Interpretation

as Practical Reasoning, 42 S

TAN. L. REV. 321, 332 (1990); William N. Eskridge, Jr., The Case of the

Speluncean Explorers: Twentieth-Century Statutory Interpretation in A Nutshell, 61 G

EO. WASH. L.

REV. 1731, 1736 & n.32 (1993) [hereinafter Eskridge, Speluncean Explorers]; Eskridge, supra note

16, at 642; John F. Manning, Textualism and Legislative Intent, 91 V

A. L. REV. 419, 430 (2005); John

F. Manning, The Necessary and Proper Clause and Its Legal Antecedents, 92 B.U.

L. REV. 1349,

1364 (2012); John F. Manning, The Role of the Philadelphia Convention in Constitutional Adjudica-

tion, 80 G

EO. WASH. L. REV. 1753, 1761 & n.37 (2012); Antonin Scalia & John F. Manning, A Dia-

logue on Statutory and Constitutional Interpretation, 80 G

EO. WASH. L. REV. 1610, 1611–12 (2012).

See Eskridge, supra note 16, at 651–52 (“[H]is attack was primarily a realist one. Thus, Judge

Scalia followed the Radin critique of the concept of legislative intent.”).

Radin’s left-wing sympathies were opposed by conservatives of his day. See Hans A. Linde,

Hercules in a Populist Age, 103 H

ARV. L. REV. 2067, 2069 (1990) (reviewing JOSEPH R. GRODIN, IN

PURSUIT OF JUSTICE (1989)) (noting that “in 1939 a conservative attorney general, Earl Warren,

blocked confirmation of an eminent Berkeley professor, Max Radin, for alleged left-wing sympa-

thies,” for a position on the California Supreme Court). Justice Scalia’s conversvative leanings are

well known. See 60 Minutes: Justice Scalia on the Record, (CBS television broadcast Apr. 27, 2008),

available at http://www.cbsnews.com/news/justice-scalia-on-the-record/, archived at http://perma.cc/

RM5L-5LBU (“I mean, I confess to being a social conservative, but it does not affect my views on

cases.”); see also J

OAN BISKUPIC, AMERICAN ORIGINAL: THE LIFE AND CONSTITUTION OF SUPREME

COURT JUSTICE ANTONIN SCALIA 76 (2009) (recounting Justice Scalia describing his life as a con-

servative before becoming a justice as “isolated, lonely . . . like a weirdo.”).

2014] Rethinking Legistlative Intent & History 1623

tual failure. The dominant school of thought in statutory interpretation, the le-

gal process school, pioneered in the Hart and Sacks materials,

never an-

swered Radin’s skeptical critique in a way satisfying to scholars of statutory

interpretation. Having left it standing, the legal process school was soon im-

paled by it.

At first glance, it might seem as if Hart and Sacks’s move to “purpose”

answered Radin’s challenge. But, as Radin’s own article makes quite clear,

substituting purpose for intent does not, as a conceptual matter, take care of

the matter of group agency. Radin’s critique against a “group intent” applies as

well to “group purposes.” If there can be no collective intent, there can be no

collective purpose. In fact, at least as far as the collectivity critique, there ap-

pears no difference between the terms “purpose” and “intent.”

Hart and Sacks recognized this, emphasizing the complexity of attributing

a purpose to a statute and explaining that the legislature could have multiple

purposes.

They argued that a judge could determine the most reasonable pur-

pose, the one offering a law’s best account. Hart and Sacks shifted from a

speaker’s meaning view to a listener’s meaning view, moving the debate from

statutory interpretation (the discovery of meaning) to statutory construction

HART & SACKS, supra note 15, at 89. Hart and Sacks were not alone in their advocacy of pur-

posivism. See, e.g., Felix Frankfurter, Some Reflections on the Reading of Statutes, 47 C

OLUM. L.

REV. 527, 538–39 (1947). Nevertheless, their “exceptional” materials on legal process have “provided

the name, the agenda, and much of the analytical structure for a generation of legal thought.” William

N. Eskridge Jr. & Philip P. Frickey, An Historical and Critical Introduction to The Legal Process, in

ART & SACKS, supra note 15, at lii. Purposivists recognized the claim that legislatures may not have

anticipated particular, specific results, and sought to use “purpose” to solve that problem. See Archi-

bald Cox, Judge Learned Hand and the Interpretation of Statutes, 60 H

ARV. L. REV. 370, 374 (1947)

(arguing that even though legislatures form no specific intent concerning many interpretive controver-

sies, judges may, nonetheless, resolve doubtful uses by reference to “the general purpose” that lies

“behind the statutory words”); H

ART & SACKS, supra note 15, at 89 (questioning whether, during a

“general codification of the law of inheritance,” the “likelihood that the legislature . . . consciously

said to itself . . . ‘as an incident of all the other things we are now doing, we are here deliberately

deciding,’” the specific question whether the murdering heir should receive an inheritance); id. at 92–

93 (contrasting an approach seeking the “intention of the legislature” on the “question” before the

court with an approach which deemed the court bound to background “principles and policies” unless

it had made a different “purpose” “clear openly and responsibly”); John F. Manning, Textualism as a

Nondelegation Doctrine, 97 C

OLUM. L. REV. 673, 677 n.11 (1997) (“[T]hose who focus on general

purpose stress the difficulty in reconstructing specific intent.”) (emphasis added).

Radin, supra note 10, at 878 (“[T]o interpret a law by its purposes requires the court to select

one of a concatenated sequence of purposes, and this choice is to be determined by motives which are

usually suppressed.”). If one carries purpose as far as it will go, “the avowed and ultimate purposes of

all statutes, because of all law, are justice and security.” Id. at 876.

See HART & SACKS, supra note 15, at 1378 (recommending that the interpreter assume that the

“legislature was made up of reasonable persons pursuing reasonable purposes reasonably”); see id. at

1188–96, 1374–77 (suggesting that prototypical instances of statutory application can evoke multiple

purposes).

1624 Boston College Law Review [Vol. 55:1613

(the determination of legal effect).

Hart and Sacks’s solution may well be one

followed by today’s great purposivist judges,

but it has never quieted pur-

posivism’s critics. Textualist detractors emphasize that purposivism expands

the domain of statutes. Furthermore, there are “multiple purposes” to any stat-

ute and, therefore, the attribution of a single purpose may be arbitrary or activ-

ist.

At the very least, the “multiple purpose” critique has been a prominent

arrow in the quiver of objections against purposivism.

If nothing else, no one can say that skepticism about groups because of

their collective nature has gone away. If anything, it has intensified over time

because it has been repeated, and sometimes endorsed, by the greats of modern

jurisprudence and political science. Ronald Dworkin recapped the argument

almost verbatim in his work, calling it the “speakers’ meaning” view.

Dworkin claimed, just like Radin, that the multiplicity of the legislature made

it impossible to collect an original intent.

Jeremy Waldron picked this up in

See Lawrence B. Solum, Orginalism and Constitutional Construction, 82 FORDHAM L. REV.

453, 455–56 (2013); Lawrence B. Solum, The Interpretation-Construction Distinction, 27 C

ONST.

COMMENT. 95, 95 (2010).

See STEPHEN BREYER, ACTIVE LIBERTY 85–101 (2005) (defending purposive interpretation).

See, e.g., John F. Manning, The New Purposivism, 2011 SUP. CT. REV. 113, 151–52 (discuss-

ing Radin’s famous identification of the multiple purpose “conceptual” problem). This is sometimes

called the problem of generality after Radin’s claim that one could state the purpose of all laws at a

very high level of generality as “justice and security.” See id.; see also Radin, supra note 10, at 876

(stating that “the avowed and ultimate purposes of all statutes, because of all law, are justice and secu-

rity”); Stephen F. Williams, Rule and Purpose in Legal Interpretation, 61 U.

COLO. L. REV. 809, 811

(1990) (“Notice that as soon as the analysis of purpose is divorced from the means selected, all limits

are off. Every purpose can always be restated at a higher level of generality.”). Whether described as

the “generality” problem or the “multiple purpose” problem, the claims made here remain the same.

See Eskridge, Speluncean Explorers, supra note 33, at 1744–45 (explaining the critique of

purposivism: “that purpose is too easy to determine, yielding a plethora of purposes, cross-cutting

purposes, and purposes set at such a general level that they could support several different interpreta-

tions. Purposive statutory interpretation, therefore, might be even less determinate than more tradi-

tional approaches. This has been a standard criticism of legal process interpretation . . . .”).

See DWORKIN, supra note 11, at 314, 315 (“When a friend says something, we may ask, “What

did he mean by that?” . . . Our answer to that question describes something about his state of mind

when he spoke.”). Under the “speakers’ meaning” view, judges look to legislative history . . . to dis-

cover what “state of mind” the legislators tried to communicate. Id. Legislative materials are “evi-

dence” of the legislators’ “mental states.” Id. at 314. So long as we think legislative intention is a

matter of what someone has in mind and means to communicate by a vote, we must take as primary

the mental states of particular people because institutions do not have minds. See id. at 314–15.

Dworkin misunderstood the notion of speaker’s meaning derived from the philosophy of language,

which focuses on the meaning the speaker intended to convey to her audience based on the audience’s

recognition of the speaker’s communicative intentions. See H.P. Grice, Utterer’s Meaning, Sentence-

Meaning, and Word-Meaning, in 4 F

OUNDS. OF LANGUAGE 225, 225, 230 (1968).

See DWORKIN, supra note 11, at 320–21. Under Dworkin’s theory, a judge is required to

“combine . . . various opinions into some composite group intention.” Id. at 320. “[W]e must worry

about how to consolidate individual intentions into a collective, fictitious group intention.” Id. at 336.

2014] Rethinking Legistlative Intent & History 1625

more sophisticated fashion.

His principal target was constitutional interpreta-

tion, but in a long chapter on statutory interpretation he repeated Radin’s

claims about collectivity as inconsistent with intent.

Finally, the great Ken-

neth Shepsle gave positive political theory’s imprimatur to the “group-intent

objection” with the very title of his paper, “Congress is a They, Not an It.”

C. Analyzing the Meaning of Intent—Three Modalities

The “group-intent objection” is correct in a trivial, semantic sense, but

deeply wrong in an important, empirical sense. By definition, no group has a

single human mind. Few dispute that proposition; it is a trivial claim. It is not a

trivial claim, however, to eliminate groups from our social life. That is an ex-

travagant argument amounting to the rejection of most of our social world,

from Microsoft to Harvard to the Catholic Church. To see this, we must first be

clear about the meaning of “intent.” Bottom line: there is such a thing as legis-

lative intent, but only if we define intent in a way that does not carry with it

embedded assumptions that, by definition, only apply to individuals. Congress

has the functional equivalent of intent by acting through its sequential proce-

dures. When we ask about Congress’s intent, what we are asking for is not its

mental state, but an elaboration of its actions within the procedural context in

which it acted.

For some time now, scholars in jurisprudence, statutory interpretation and

political economy have questioned whether collectivities “intend” in any way

other than a metaphorical sense. As explained earlier, the philosopher Jeremy

Waldron and before him Ronald Dworkin

have argued against the concept of

legislative intent, views that have been echoed in different forms by Joseph

Raz and John Gardner.

Recently, however, the philosopher Phillip Pettit and

political economist Christian List have provided the conceptual foundation for

See Waldron, supra note 2, at 128.

See id.

Kenneth Shepsle, Congress Is a “They,” Not an “It”: Legislative Intent as Oxymoron, 12

NT’L REV. L. & ECON. 239, 254 (1992). This is not the uniform view among political scientists as

others embrace legislative intent. See Rodriguez & Weingast, supra note 21, at 1422–23.

DWORKIN, supra note 11, at 19 (arguing against collective intention); WALDRON, supra note 2,

at 119–46; see John Gardner, Some Types of Law, in C

OMMON LAW THEORY 51, 56 n.14 (Douglas E.

Edlin ed. 2007) (identifying Dworkin and Waldron as “[n]otable doubters” of the thought that an

institution may have intentions).

JOSEPH RAZ, BETWEEN AUTHORITY AND INTERPRETATION: ON THE THEORY OF LAW AND

PRACTICAL REASON 284 (2009) (arguing that law is intentional, but the intention involved in the act

of legislating is “very minimal” and “does not include any understanding of the content of the legisla-

tion”); Gardner, supra note 49, at 56. (arguing that “parliament often has no intention to make the

particular changes in the law that it ends up making when it legislates,” but has a more humble inten-

tion to act to change the law). This may be akin to the notion I suggest below, that intention may be

used to describe an act that is not involuntary or accidental. See infra note 72.

1626 Boston College Law Review [Vol. 55:1613

an important response to these claims. List and Pettit decry as “extreme” the

idea that collectivities have no group agency, branding it “eliminativism.”

Eliminativists reject the agency of a vast range of entities within the social

world with which we interact on a daily basis and to whom we attribute agency

and thus responsibility.

Eliminativists, in short, have gone too far in eradicat-

ing social life.

If this is correct, there are important implications for the “group-intent ob-

jection.” If the argument claims that Congress is a collectivity and because it is

a collectivity it cannot act as a group agent, then the argument assumes what it

is trying to prove and eliminates group agency. What do I mean by group agen-

cy? In this Article, I use this term to mean public action, recognized by those

inside the group as legitimate group acts. When a corporation issues a report

and members within the group recognize and attribute this to the group accord-

ing to pre-determined standards, the group itself considers this as a group act

(its ex ante procedures determine this). Acts differ from intents, meanings, and

beliefs because they are observable and do not exist solely in one or more

minds. Putting on one’s shoes is different from thinking about putting on one’s

shoes and telling someone else that you are about to put on your shoes. That an

act may take the form of speech or words does not deny it the status of an act

as distinct from a mere mental state.

An act that the group would recognize as a group action (i.e. authorized

by the group or part of that group’s organization or procedure) is an exercise of

group agency.

This is a descriptive and a prescriptive claim in the following

sense. Just as trial procedures make sequential processes legitimate as part of

CHRISTIAN LIST & PHILIP PETTIT, GROUP AGENCY 74 (2011) (“If the emergentist tradition

reified and mystified group agents, hailing them like transcendent realities, the eliminativist tradition

went to the other extreme.”).

Id. at 5 (“Once we recognize a collective entity as an agent, we can interact with it, criticize it,

and make demands on it, in a manner not possible with a non-agential system.”). Margaret Gilbert has

used the term “singularism” to describe a similar phenomenon. M

ARGARET GILBERT, ON SOCIAL

FACTS 12, 433 (1989); see LIST & PETTIT, supra note 51, at 74 (“Singularism asserts that there are no

pluralistic agents, in any literal sense of the term, only the singular agents constituted by individual

human beings . . . .”).

J.L. Austin, Performative Utterances, in THE PHILOSOPHY OF LANGUAGE 291, 292 (A.P. Mar-

tinich & David Sosa eds., 6th ed. 2013).

For example, just as a corporate report, such as a 10K filing, is viewed as a legitimate group

action even though it may have been written by a part of the organization, and never be read by the

Board of Directors, so too similar actions (committee reports) should be viewed as legitimate public

acts of Congress, not mental states. This applies to acts attributable to individuals as well as collective

acts. When an individual offers an amendment, the amendment is his own, but to be a legitimate

group act, it must follow group-authorized procedure. On the other hand, an offhand statement made

by an individual legislator or a colloquy that did not follow the rules would not be considered a group

act. See Hamdan v. Rumsfeld, 548 U.S. 557, 665–67 (2005) (Scalia, J., dissenting) (“Whether the

floor statements are spoken where no Senator hears, or written where no Senator reads, they represent

at most the views of a single Senator.”).

2014] Rethinking Legistlative Intent & History 1627

the trial without regard to the outcome, congressional procedures make inter-

mediate steps in the process legitimate because there has been a prior com-

mitment by the group to act in this particular way—no matter who wins or los-

es. The prior commitment legitimizes the act and also delegitimizes acts that

do not follow such procedures as acts that the group may disavow or which

may be later deemed to fall outside the arena of group action. Consider, for

example, two rogue employees writing a false 10K report inflating the value of

a company, or two rogue Senators making speeches giving a false context to a

statute.

Claims to act for a group are not automatically legitimate, but must

be consistent with prior procedural, and within this sense, normative commit-

ments.

1. Three Modalities of Intent

Intention is everywhere in life and law, and it is “confusing.”

Philoso-

phers have debated, and continue to debate, the meaning of intention.

So, too,

do linguists and literary theorists and intellectual historians.

More recently,

psychologists and social psychologists have entered the field with experi-

mental evidence suggesting that the attribution of intention begins at the earli-

est of ages.

For some time now, we have known that humans are particularly

adept at reading the “minds” of others.

At a minimal level, it seems undenia-

ble that Congress acts with some intention. Few believe that statutes appear by

accident. Votes are not delivered at the point of a gun. However, once one

Id. at 666.

Landis, supra note 1, at 888.

See generally G. E. M. ANSCOMBE, INTENTION (2nd ed. 1963) (providing a seminal philosoph-

ical analysis of intention); B

RATMAN, supra note 6 (discussing intention generally and in the context

of shared cooperative activity); D

ANIEL C. DENNETT, THE INTENTIONAL STANCE (1989) (presenting a

theory of intentionality and mind);

JOHN R. SEARLE, INTENTIONALITY: AN ESSAY IN THE PHILOSO-

PHY OF

MIND (1983) (explaining intentional phenomena); Kieran Setiya, Intention, in THE STANFORD

ENCYCLOPEDIA OF PHILOSOPHY (Edward N. Zalta ed., 2014), http://plato.stanford.

edu/archives/spr2014/entries/intention/, archived at http://perma.cc/BXS4-HPF9 (discussing theories

of intention).

See PAUL GRICE, STUDIES IN THE WAY OF WORDS 86–116 (1989); MEANING & CONTEXT:

QUENTIN SKINNER AND HIS CRITICS 73–78 (James Tully, ed. 1989). See generally INTENTIONS AND

INTENTIONALITY: FOUNDATIONS OF SOCIAL COGNITION (Bertram F. Malle et al. eds., Bradford

Books 2003) (2001) (providing analyses of intention by psychologists, social psychologists and phi-

losophers).

Amanda Woodward et al., How Infants Make Sense of Intentional Action, in INTENTION AND

INTENTIONALITY: FOUNDATIONS OF SOCIAL COGNITION, supra note 58, at 150–51 (summarizing

existing theories and contending that “infants, before they acquire the communicative tool box of the

12–24-month-old, understand some aspects of intentional action”).

See DENNETT, supra note 57, at 51 (“[F]olk psychology . . . can explain the fact that we do so

well predicting each other’s behavior on such slender and peripheral evidence; treating each other as

intentional systems works . . . because we really are well designed by evolution . . . .”).

1628 Boston College Law Review [Vol. 55:1613

passes this “minimalist” threshold, serious arguments arise about the existence

of group intent. Here, my hope, if nothing else, is to bring greater clarity to the

arguments about intent based on a new typology of intent modalities. Ultimate-

ly, I hope to show how assumptions about particular intent modalities may lead

to simplistic, and question-begging, views about Congress as a group agent,

and that these modalities are not the only ones possible.

a. Mental Intent

When I say that I “intend to do something,” the reader is likely to think of

a mental state. This is especially true in law, where mental states play such an

important role in tort and criminal law.

When lawyers seek “legislative in-

tent” they sometimes mean that what they are looking for is to “reconstruct[]”

the mental state of the members who would have voted on a bill.

They are

talking of intent as mental state. Philosophers note that it is not necessary for

the individual to have a sign in his head saying “I intend to do something,” as

lawyers often posit. An individual may in fact do something automatically—

without a “mental event”—in which case the intention and the act coincide.

Put another way, the mental states that constitute an intention can be disposi-

tional; they need not be occurrent. For example, lawyers trying to prove state

of mind do not expect to discover a picture of the brain, but infer “intent” from

action or behavior.

Whereas, in the field of statutory interpretation, the gen-

eral view holds to the notion that there is a separate “mental event” associated

with the creation of statutory text.

b. Communicative Intent

Intent-as-communication is a staple of standard versions of statutory inter-

pretation theory.

Dworkin explained this notion (one he disavowed),

as the

See, e.g., JOSHUA DRESSLER, UNDERSTANDING CRIMINAL LAW 118–19 (6th ed. 2012) (de-

scribing mens rea (the latin term associated with intent) and discussing the concept of murder as the

“intentional killing of a human being”).

Richard A. Posner, Statutory Interpretation—in the Classroom and in the Courtroom, 50 U.

CHI. L. REV. 800, 817 (1983) (“I suggest that the task for the judge called upon to interpret a statute is

best described as one of imaginative reconstruction.”).

See DENNETT, supra note 57, at 15 (“[T]he intentional strategy consists of treating the object

whose behavior you want to predict as a rational agent with beliefs and desires and other mental stag-

es.”).

See Richard A. Posner, Legislation and Its Interpretation: A Primer, 68 NEB. L. REV. 431, 448

(1989) (positing a hypothetical involving a commander giving garbled orders).

DWORKIN, supra note 11, at 315–16. Dworkin’s target is the species of constitutional argument

known as originalism, but his arguments are couched in more general interpretive guise and are in part

focused on statutory interpretation. See id. at 313–54.

2014] Rethinking Legistlative Intent & History 1629

“speaker’s meaning” view.

That view “assumes that legislation is an occasion

or instance of communication.”

The “ruling model of this theory is the familiar

model of ordinary speech.”

In ordinary speech, as linguists, literary theorists

and others have shown, it is common sense to hold that statements are made with

the purpose to communicate. As Stanley Fish, one of intent-as-communication’s

most zealous

interpretive defenders explains, “interpretation always and neces-

sarily involves the specification of intention.”

Under the idea of intent as

“communication,” “[e]veryone who is an interpreter,” including statutory ana-

lysts, is in “the intention business.”

This view is distinct from the mental state

approach because it requires the conveyance of meaning from one party to an-

other: one can have a mental state (for example, a secret wish) and yet never

communicate that internal state to another.

This modality thus raises the poten-

tial for a mistaken attribution of intention, faulty communication of that inten-

tion, as well as improper uptake on the part of the listener.

c. Pragmatic Intent

A different meaning of intent focuses on the communicative situation.

Pragmatism, in its original philosophical sense, takes the view that one cannot

know one’s ends without acting to achieve those ends. Intent under such a

view is not merely a mental state but a mental state contemplating “present and

future conduct,”

and, more importantly, may not be knowable except by ob-

serving action in context—in the situation. Contrary to the “snapshot pic-

ture”—frozen in time—of mind or communication, under this pragmatic idea

of intent, intents may change over time as new and relevant information be-

Id. at 315.

Id.

Stanley Fish, The Play of Surfaces, in LEGAL HERMENEUTICS: HISTORY, THEORY, AND PRAC-

TICE

300–01 (Gregory Leyh ed., 1992) (“[T]here cannot be a distinction between interpreters who

look to intention and interpreters who don’t, only a distinction between the differing accounts of in-

tention put forward by rival interpreters . . . .”).

Id. at 300. Fish is debating constitutional interpretation in this piece, but his statements are

equally applicable and have been invoked to explain the speaker’s meaning theory in other contexts.

ALDRON, supra note 2, at 124–25.

Fish, supra note 69, at 301.

I am rejecting a theory of communication here in which the speaker encodes and the listener

decodes the utterance. That theory would allow for secret intentions that no listener could have

grasped. Instead, the theory of communication asserted here depends upon the communicative inten-

tions of the speaker. See G

RICE, supra note 58, at 86–116.

See Elizabeth Mertz, Teaching Lawyers the Language of Law: Legal and Anthropological

Translations, 34

J. MARSHALL L. REV. 91, 102–04 (2000).

BRATMAN, supra note 6, at 2. Intentions are “elements of stable, partial plans of action con-

cerning present and future conduct.” Id. Intending involves “a commitment . . . over time . . . .” Id. at

1630 Boston College Law Review [Vol. 55:1613

comes available.

Like pragmatist theories of meaning more generally, prag-

matic intent is context-relative—it focuses on the communicative situation.

Background context will influence the intention or plan. For example, one

cannot know how to win a game of chess if one does not know the background

context—the rules of chess or the significance of the checkered board within

the context of those rules. The pragmatic intent modality assumes that unstated

background context is important; it is not enough that intent is a mental state or

a communicated mental state. Pragmatic intent emphasizes communicative

context as essential to find meaning. In sum, if one can infer intent from ac-

tion, the first two modalities are neither necessary nor sufficient to understand

intent.

This applies to both ordinary meaning and statutory meaning. Consider

the sentence “I take the fifth.” Lawyers are likely to assume that an individual,

within a court of law, has refused to testify. This understanding assumes a cru-

cial context. If that context is changed, the statement’s meaning changes. “I

take the fifth” as a response to the question in a bakery “which one will you

take?” might mean the fifth doughnut or, in the context of waiting for a taxi,

the fifth car in line. In the context of the Senate, it might mean the fifth

amendment, not to the Constitution, but to the bill under consideration. These

examples show how assumptions made from context are extraordinarily com-

mon and potentially crucial to determine meaning. As Professors Goldsworthy

and Ekins have written, “[i]f presuppositions are not grasped, almost anything

we say is open to being misunderstood in unpredictable and bizarre ways.”

To modify one example discussed by Goldsworthy and Ekins and originated

by John Searle: if I order a hamburger in a restaurant, I assume that the ham-

burger will be cooked at a sufficient temperature so as not to make me sick,

that it was refrigerated to remain fresh before cooking, and that it will be

cooked not frozen or, as Searle originally noted, encased in a solid Lucite cu-

be.

We know this from context, not logic—from the procedures by which

hamburgers are typically ordered and prepared.

To the extent that statutes are valid commands, they must be uttered with-

in a particular context pursuant to particular rules and processes, not at a base-

ball game or a theatrical performance (different contexts with different rules).

Id. at 2 (“[M]any times, in the face of new and relevant information, we recognize that it would

be folly to stick rigidly with our prior intention.”).

Id. at 21; GRICE, supra note 58, at 222.

Richard Ekins & Jeffrey Goldsworthy, The Reality and Indispensability of Legislative Inten-

tions, 36 S

YDNEY L. REV. 39, 55 (2014).

Id. at 56 n.61 (citing JOHN R. SEARLE, EXPRESSION AND MEANING: STUDIES IN THE THEORY

SPEECH ACTS 127 (1979)).

To the extent that statutes are seen as commands, they are performatives and are subject to

Austin’s original analysis which holds that performatives only work if they are consistent with ex ante

2014] Rethinking Legistlative Intent & History 1631

Although context is important in understanding ordinary speech, statutory

speech operates in a particularly “formalistic” context, to borrow Jeremy Wal-

dron’s term.

As we know from the linguist Paul Grice, ordinary speech con-

ventions generally assume that information will be limited and relevant, but no

such assumption is warranted in the Senate because its procedures allow un-

limited speech.

So, too, it is generally assumed that ordinary speakers are

cooperating with each other—an assumption that becomes outlandish in the

context of a legislative debate between warring parties.

Because congres-

sional procedure often suspends the maxims of ordinary speech, rules for ordi-

nary speech may be necessary but are not sufficient to understand congression-

al meaning.

Perhaps most importantly for purposes of the group intent objection,

pragmatic intent is not (like our earlier versions of intent) inherently singular-

ist

—it is not limited to a single individual at a moment in time. Instead, it

contemplates acting with more than one person over time. Once one acknowl-

edges that intent may be reflected in action, it is possible to imagine “we-

intentions.”

So, for example, two people can agree in advance to tie each

rules for the performance. See Austin, supra note 53, at 293. So, if I say “I divorce you” in a cocktail

party setting, the performance will not “come off”—no one would think that my mere statement of the

words “I divorce you” would effectuate a legal divorce because it did not comply with the proper

procedures for a legal divorce, and was not uttered in the proper context for a legal divorce. Id. As

Austin explained, the performative utterance will be “unsatisfactory . . . if certain rules, transparently

simple rules, are broken.” Id. Put in other words, Austin’s theory of performatives assumes conform-

ance with rule-context. For example, an opera singer could utter the words of a statute at an opera and

no one would think it was a command to the audience but instead a performance of an opera (or at

most the performance of a command within an opera). For a statute to be a statute—a valid com-

mand—it must be consistent with the procedures by which the people consent to be governed.

See WALDRON, supra note 2, at 70.

THE PHILOSOPHY OF LANGUAGE, supra note 53, at 282 (providing an example to show how

Grice’s maxim of relevance may be suspended in particular contexts).

This explains why canons of interpretation cannot act as substitutes for an understanding of

legislative context. Miller’s fine article on Grice and canons elaborates the argument for canons, but

does not address the assumption that members are engaged in ordinary speech. Geoffrey P. Miller,

Pragmatics and the Maxims of Interpretation, 1990 W

IS. L. REV. 1179, 1183. At the most crucial

point of legislative compromise, the places we most want to know legislators’ meaning, they are not

likely to be engaged in a cooperative enterprise.

One potential meaning absent from this list is “intent as reason.” See BLACKSTONE, supra note

23, at *58–61. In statutory interpretation, a purposivist might argue that intent reflects a reason about a

statute, for example, and that this is what is meant by “intent.” Like motivation or other meanings for

intent, this idea is subject to all of the claims I make here about intent as mental state assuming it is

static, private, and idealized as a mental event. There is no reason not to think of intent as reason, but

to do so is unhelpful in situations of group agents since the implicit analogy to mind causes worries

about whether groups can have internal, private, mental reasons.

GILBERT, supra note 52, at 12.

BRATMAN, supra note 6, at 110 (“That we do sometimes have intentions that are in an im-

portant sense shared seems clear. We commonly report or express such shared intentions by speaking

of what we intend or of what we are going to do or are doing.”). If action reflects intent, then a group

1632 Boston College Law Review [Vol. 55:1613

other’s shoes, or they can simply act to tie each other’s shoes (in the absence of

a joint mental state or a shared agreement). In either case, we can say that they

have the intent to tie shoes. As long as they act to tie each other’s shoes, it does

not matter whether they had a mental picture contemplating such action or an

overt communicative agreement to tie each other’s shoes. Pragmatic intent thus

builds upon but does not negate the possibility of other kinds of intent. Intent

may be envisioned as a state of mind, or it may be envisioned as a feature of

communication, or it may be reflected in action.

In the context of lawmaking, pragmatic intent is particularly important

because plurality defines political action. As Hannah Arendt once emphasized,

political action presumes the viable existence of groups. Political action cannot

“be done in isolation from others—independently of the presence of a plurality

of actors who from their different perspectives can judge the quality of what is

being enacted.”

To elicit the consent of others, which sits at the heart of rep-

resentation, deliberation and persuasive communication, one cannot give

speeches in a closet. As Arendt described it, “plurality is specifically the condi-

tion—not only the conditio sine qua non, but the conditio per quam—of all

political life.”

For the plurality to reach agreement on political action it must

follow procedures allowing the many, the plurality, to speak in one voice at the

very same time that voice speaks for many.

D. Radin’s Error: Intent as State of Mind

Armed with these ideas of intent, we can return to Radin’s collectivity ob-

jection and see that it depends upon assumptions about intent that beg the

question he seeks to answer.

Radin wrote that “[t]he chances that of several

hundred men each will have exactly the same determinate situations in mind

. . . are infinitesimally small.”

He posits cases where “the minds of the legis-

lature [are] uniform.”

He suggests that a minority’s objection bars collective

of two or more individuals acting in a coordinated manner can be recognized as sharing an intention.

See id.

See Setiya, supra note 57.

HANNAH ARENDT, THE HUMAN CONDITION 7 (2nd ed. 1998).

This was how James Landis, in his response, understood Radin’s argument: “To insist that each

individual legislator besides his aye vote must also have expressed the meaning he attaches to the bill

. . . is to disregard the realities of legislative procedure.” Landis, supra note 1, at 888 (emphasis add-

ed).

Radin, supra note 10, at 870. Here, Radin is identifying what has been called, in constitutional

theory, the “expected applications” view of interpretation. This is different from meaning as it is a

projection of meanings, a set of expectations about how the meaning might be applied, not semantic

content.

Id.

2014] Rethinking Legistlative Intent & History 1633

intent.

Congress would have an intent if everyone agreed, if they had “exact-

ly the same” intent.

In a corollary to this claim, Radin argues that there can

be no group intent because only a few members have the same intent.

Three immediate objections arise. The first is unanimity: no one believes

that collective entities, whether corporations or universities, only act when

everyone shares a unanimous intention or set of factual assumptions.

Ye t Ra-

din wants “exactly the same” intents “in mind,” minds that are “uniform,” sev-

eral hundred men with “the same . . . situations in mind.”

Faculties and cor-

porations and churches make decisions all the time in the face of disagreement.

Moreover, there is nothing in the law that suggests to the contrary. We do not

hold corporations to account only when all members of the organization line

up and sign an affidavit agreeing to the decision. Perhaps more importantly, no

one believes that majoritarian decisions are impossible or illegitimate because

a majority does not include everyone. Indeed, majoritarianism presumes disa-

greement.

The second implausible assumption goes to the static nature of group

agency. The “same intent” objection implies that representatives share the

same intent at the same time. This assumption deserves scrutiny. Faculties,

unions, and churches make decisions over time, not instantaneously.

No one

says a corporation or university or labor union has not made a decision because

of the time it takes to make that decision. Perhaps most importantly, we know

Id.

The “same intent” problem may not be unique to Radin, as Ekins argues that both John Gard-

ner and Joseph Raz’s theories of minimal or humble intention suffer from this problem. E

KINS, supra

note 11, at 114 (“Raz and Gardner . . . [make] the unsound assumption that the legislature’s intention

must be an intention held by each legislator (or each legislator in the majority).”).

Radin, supra note 10, at 870.

One might argue that some of the organizations I have identified are not necessarily “democrat-

ic,” but follow hierarchical norms. In fact, school boards, unions, non-profit organizations, and the

proverbial town hall purport to operate by democratic, majoritarian principles. Even the modern cor-

poration has a form, at least in theory, of shareholder democracy. These organizations operate with

respect to some form of procedure seen as legitimate for that form of organization. Most organizations

include some forms of hierarchy even as they claim resolute democracy; the House of Representatives

and labor unions are examples. See, e.g., W

ILLIAM PRIDE ET AL., BUSINESS 198 (11th ed. 2011) (“The

pattern of delegation throughout an organization determines the extent to which that organization is

decentralized or centralized.”).

Diego Gambetta, “Claro!”: An Essay on Discursive Machismo, in DELIBERATIVE DEMOCRA-

19 (Jon Elster ed., 1998) (providing a contrarian example proving the oddity of the assumption that

intent is instantaneous). Gambetta explains that “Claro!” is “Spanish for ‘Obvious’ ‘I knew it all

along!’ ‘Nothing you say surprises me’—a belittling snap response that greets those who express an

argument, especially if not at all obvious, in countries of that culture.” Id. at 20–21. “In a culture of

this kind . . . agents . . . are unlikely to listen to one another’s arguments, let alone be persuaded by

them.” Id. at 21.

1634 Boston College Law Review [Vol. 55:1613

that Congress makes decisions through procedures over time.

As Jeremy

Waldron has rightly emphasized, these procedures are Congress’s “constitu-

tion.”

Finally, Radin makes a seemingly more plausible argument by asserting

that there can be no group agency because only a few members may draft leg-

islation. He writes: a “legislature certainly has no intention whatever in con-

nection with words which some two or three men drafted . . . .”

100

Unlike the

earlier two objections, this objection recognizes what appears, at first glance,

to be empirical reality. Participation in legislating tends to be concentrated on a

few who stake their political futures on the difficult course of bill passage.

101

But the “few” who draft a bill cannot pass it. Senators who write for two or

three people, as opposed to 60,

102

are engaged in a fool’s errand.

103

They must

anticipate not only a majority but a supermajority. If drafting be the work of

“the few,” legislating is the work of “the many” (and under supermajoritarism,

the “super-many”).

Ultimately, this claim of the “few” suffers from the same theoretical ob-

jection as its cousin, the unanimity argument. If we are prepared to accept the

notion that groups do act, we should also know that they often act through “a

few members.” Ultimately, the claim of “the few”—that a few write the

law

104

—goes too far: it applies to all collective action. Corporations and un-

See U.S. CONST. art. I, § 5 (providing that each House of Congress may “determine the rules of

its proceedings . . . .”). The House and Senate rules can be easily found online. See R

ULES OF THE

HOUSE OF REPRESENTATIVES, H.R. DOC. NO. 112-161 (2013), available at http://clerk.house.gov/

legislative/house-rules.pdf, archived at http://perma.cc/98BQ-SSMZ; S

TANDING RULES OF THE SEN-

ATE

, S. DOC. NO. 112-1 (2011), available at http://www.rules.senate.gov/public/index.cfm?p=Rules

OfSenateHome, archived at http://perma.cc/PC3A-RC68 [hereinafter S

ENATE RULES].

WALDRON, supra note 2, at 123.

100

Radin, supra note 10, at 870.

101

RICHARD L. HALL, PARTICIPATION IN CONGRESS 3–4 (1996).

102

Almost every bill requires a supermajority in the Senate to pass the cloture barrier. See GREG-

ORY

J. WAWRO & ERIC SCHICKLER, FILIBUSTER: OBSTRUCTION AND LAWMAKING IN THE U.S. SEN-

ATE

10 (2006) (“The Senate’s rules that protect unlimited debate . . . effectively require supermajori-

ties for the passage of legislation . . . .”); see also 157 C

ONG. REC. S311 (daily ed. Jan. 27, 2011)

(statement of Sen. Harkin) (noting that in the 110th and 111th Congresses, there were 275 filibusters

in just over 4 years. “It has spun out of control. This is not just a cold statistic of 275 filibusters. It

means the filibuster, instead of a rare tool to slow things down, has become an everyday weapon of

obstruction, of veto.”).

103

It is well known that to draft legislation is an act of anticipation of others’ preferences. See R.

DOUGLAS ARNOLD, THE LOGIC OF CONGRESSIONAL ACTION 10 (1990). One must draft to satisfy not

only one’s own constituents, but also other members and their constituents. See id. If the sole repre-

sentative wants her draft to become law, she must anticipate a tremendous variety of “vetogates”—

hurdles that must be surpassed before a proposed bill becomes law. See William N. Eskridge, Jr.,

Vetogates, Chevron, Preemption, 83 N

OTRE DAME L. REV. 1441, 1443, 1444–47 (2008) (laying out a

vetogates model for lawmaking in the United States and describing nine such vetogates).

104

Note that this partiality critique applies to the text as much as the legislative history. Partiality

is a reason to be skeptical of the entire legislative process, including legislative text: if the few write

2014] Rethinking Legistlative Intent & History 1635

ions and universities delegate decisionmaking to smaller groups to reduce the

transaction costs of decisionmaking. Delegation is considered part of the cul-

ture and proper practice of corporate management.

105

The few may draft a joint

letter, but those who have authority to act for the many sign it. Thus conceived,

this objection turns out to be a soft form of eliminativism. If the final decision

is the result of less than all, and that fact brands the decision as illegitimate,

then all collective bodies and their actions are potentially illegitimate-because-

partial.

The most important point to see about Radin’s argument, however, is the

idea of “intent” on which it relies—an idea revealing the fundamental weak-

ness of his claims. Radin’s idea of intention is our first modality of intention,

as a static private mental event. He writes of “situations in mind” and “pictures

in mind.”

106

He muses that legislators have “different ideas and beliefs,” spe-

cifically equating this with a mental event:

The chances that of several hundred men each will have exactly the

same determinate situations in mind . . . are infinitesimally small.

The chance is still smaller that . . . the litigated issue, will not only

be within the minds of all these men but will be certain to be select-

ed by all of them as the present limit [to which the statute] should be

narrowed.

107

Lest one think Radin not committed to the idea of “intent-as-mental-

state,” consider his argument that, in an extreme case, “it might be that we

could learn all that was in the mind of the draftsman.”

108

Or his argument that

“[e]ven if the contents of the minds of the legislature were uniform, we have

no means of knowing that content except by the external utterances or behav-

ior.”

109

Given this idea of individual intent, Radin must be a group skeptic: if in-

tent lies within the private world of individuals’ minds, then it is impossible to

conclude that groups have intent. Groups do not have minds. This shows, how-

the text, then it has no priority, nor legitimacy, as the product of the group, since formal adoption by

the whole rests upon a false sense of legitimacy.

105

Organizational literature takes delegation as a basic part of proper management. ANDREW J.

DUBRIN, ESSENTIALS OF MANAGEMENT 152 (9th ed. 2012) (“A well-planned and highly structured

organization reduces the number of nonprogrammed decisions.”); H

AROLD KOONTZ ET AL., ESSEN-

TIALS OF

MANAGEMENT 184 (5th ed. 1990) (“Delegation is . . . an elementary act of managing.”); W.

PRIDE ET AL., supra note 96, at 190 (“The third major step in the organizing process is to distribute

power in the organization . . . . The degree of centralization or decentralization of authority is deter-

mined by the overall pattern of delegation within the organization.”).

106

Radin, supra note 10, at 870.

107

Id. (emphasis added).

108

Id. (emphasis added).

109

Id. (emphasis added).

1636 Boston College Law Review [Vol. 55:1613

ever, that this particular argument against group agency begs the question, re-

lying upon a contestable assumption about intent. Radin almost admits this

when he states, “[t]hat the intention of the legislature is undiscoverable in any

real sense is almost an immediate inference from a statement of the proposi-

tion.”

110

Assuming an idea of intent by definition incompatible with group

agency, it follows that Radin’s argument cannot be anything but a claim

against group agency writ large.

Radin’s arguments are not substantially improved by the more sophisti-

cated arguments made by Dworkin and others against group intent based on

the speaker’s meaning model. Dworkin argues, like Radin, that collectivity

poses a particularly difficult problem for interpretation.

111

Let us assume that

Dworkin borrows two meanings of intent—intent-as-mental-state

112

and intent-

as-communication between two persons. As Dworkin writes: “So long as we

think legislative intention is a matter of what someone has in mind and means

to communicate by a vote, we must take as primary the mental states of partic-

ular people because institutions do not have minds . . . .”

113

In either case we

see the same problems. Even if we imagine that the individual is “communi-

cating,” this does not solve the problem of combining individual minds or

communications. Indeed, Dworkin is at pains to use the “combining minds”

problem to launch his alternative, one asserting the need to construct the best

view of the law as interpretive method.

If this is correct, then the “group intent objection” should be rejected as

question-begging. If you assume at the start that intent reduces to the occurrent

mental state of an individual, then groups cannot have intent by definition since

they do not have minds. Define intent as I (singular) and it cannot be I (group)—

except in the rare case where each and every member has identical occurrent

mental states or, to put it less formally, unless one can show that each person has

the same thought “in his or her head” at the same time. Similar arguments can be

applied even if we change our idea from intent-as-mental-state to intent-as-

110

Id.

111

DWORKIN, supra note 11, at 335–36. Dworkin states:

So long as we think legislative intention is a matter of what someone has in mind and

means to communicate by a vote, we must take as primary the mental states of particu-

lar people because institutions do not have

minds, and then we must worry about how to

consolidate individual intentions into a collective, fictitious group intention.

Id.

112

See id. at 336, 337 (arguing that the judge must consider the hopes or expectations or more

detailed political opinions [legislators] have in mind when voting.) Dworkin further notes that the

judge “accepts that he must take more pains to discover the mental attitudes that lie behind legislation

than the mental states of people he meets in pubs . . . . Whose mental states count in fixing the inten-

tion behind the Endangered Species Act?”) (emphasis added). Id. at 318.

113

Id. at 335–36 (emphasis added).

2014] Rethinking Legistlative Intent & History 1637

communication. If we assume at the start that intent signals a communication

from one person to another, then we beg the question in favor of individuals

again. Define communication as C (singular) and it cannot be C (group).

E. Group Intent Reconstructed

The typology of intent modalities set forth previously aims to further the

debates about group intention in statutory interpretation, pushing the theory

beyond the conventional arguments, toward greater specificity. In this section,

I move from the critique to a more positive view. I aim to construct a plausible

account of group intent, a project that neither realists nor purposivists have

tackled.

1. The Virtues of Congressional Context

Let us begin with the basic proposition that actions taken within an organ-

ization like Congress cannot be understood without understanding their proce-

dural context. To take a simple example, let us say that you want to know the

meaning of the statement—“go to the floor!” One might assume that the

statement means to drop to the floor to do push-ups. But in the congressional

arena, it means something else. If a Senator asks you to “go to the floor” it

means to go to a particular place in the Senate known as “the floor,” or the

Senate chamber. The most devoted advocate of “intent,” must recognize that

context changes meaning.

Legislative context also helps us to understand individual communica-

tions from one person to another or “speaker’s meaning.”

114

Consider a state-

ment made by Hubert Humphrey in the debate about the 1964 Civil Rights

Act. At issue was an amendment offered by Senator Tower on the question of

what kinds of tests employers could give employees. Humphrey said: the

“Motorola [decision]

115

was discussed, discussed and cussed.”

116

To the naïve

legal reader, ignorant of the actual context, the statement suggests that Humph-

rey was trying to communicate his firm opposition to the Motorola decision. In

fact, in the context of the debate, the meaning of the statement and what

Humphrey sought to communicate was quite different. Humphrey was saying

114

Posner, supra note 62, at 817, 818.

115

In 1964, in Myart v. Motorola, Inc., an Illinois employment board ruled that a general ability

test for applicants for assembly-line jobs was discriminatory. No. 63C-127 (Ill. Fair Employment

Practices Comm’n Feb. 26, 1964), reprinted in 110

CONG. REC. 5662–664 (1964).

116

110 CONG. REC. 13,504 (statement of Sen. Humphrey) (emphasis added).

1638 Boston College Law Review [Vol. 55:1613

to his colleagues that Motorola was irrelevant because the issue had already

been addressed in the post-cloture compromise text before the Senate.

117

More importantly, congressional context helps us focus on conduct over

time, as decisions change. When views change, they change in the context of a

structure leading to action—a law. Imagine if we were to freeze-frame the

views of Senators on civil rights in 1964. Many Senators views about race, ex

ante, would appear quite rigidly racist. Now, fast forward to the “longest de-

bate in history” on the Civil Rights Act.

118

As the debate went on, legislators

changed their views. And they changed their views not because their beliefs

about race changed, but because their views about the wisdom of voting for the

bill—action in congressional context—changed.

2. Constructing a Theory of Group Intent

If congressional context is helpful with respect to all the previously dis-

cussed intent modalities, it has the added virtue of helping us construct a plau-

sible vision of group intent. Congress has the functional equivalent of intent

and that equivalent lies in its sequential procedures. These procedures are how

a group plans for the future. To get some intuition for this, we must first rid

ourselves of the notion that intent is inevitably located in a mind or “embod-

ied.” Sometimes when we talk of intent, it seems almost impossible not to be-

lieve in a physical mind. That a group is not individually “embodied” does not

logically bar the functional equivalent of the embodied. So, for example, a

wheelchair is not made of biological material, but it enables bodily movement.

So too, here, group procedures are not embodied, but they are the functional

equivalent of what is generally seen as embodied in mind. Just as the wheel-

chair allows an individual to move, so too a group’s procedures allow it to plan

for the future as a group and, in this sense, have group intent.

119

The pragmatic modality of intent, by focusing on communicative context,

allows for “we-intentions” that are more than the sum of individual mental

states or communications. These intentions may be shared consciously or not,

with or without overt communication between the parties. For example, sup-

117

See Nourse, supra note 4, at 114–18 (further explaining this debate). By using this example, I

do not mean to suggest that Humphrey’s statement alone is enough. It acquires group status because it

is made by the manager of the bill and, further, because it explains the procedural context of the

amendment.

118

See generally CHARLES W. WHALEN & BARBARA WHALEN, THE LONGEST DEBATE: A LEG-

ISLATIVE

HISTORY OF THE 1964 CIVIL RIGHTS ACT (1985).

119

To borrow another disembodied metaphor, consider a computer programmed to spit out legis-

lation, a metaphor used by Jeremy Waldron to reject the notion of group intent. See W

ALDRON, supra

note 2, at 131–33 (discussing the Wollheim machine). In my view, the program for that computer

operates just like congressional procedure. In this sense, the computer metaphor supports—rather than

undermines—claims for the functional equivalent of group intent.

2014] Rethinking Legistlative Intent & History 1639

pose that a group of Senators file a cloture petition.

120

Those Senators have

signed their name to a document, acting to close debate. From this action, we

can infer that the members share a “we-intention.” This does not require that

Senators communicate with each other or that we know anything about what is

inside their heads; they may simply sign without discussion. Nor does it sug-

gest that the signatories have precisely similar “we want cloture” mental pic-

tures in their heads. Signing may be a thoughtless act. But if the members act

in parallel, whether by painting a house

121

or signing a document, even without

a mental event or communication, we can infer that they had the we-intention

to do the act.

In the legislative context, this is important for two reasons. Principles of

congressional action are “we-intentions” in the pragmatic sense of the term

“intention.” Members act based on rules and procedures. Let me be clear that

this does not require that all members agree to those procedures, have mental

states agreeing to those procedures, have communicated about the procedures,

or have even read the procedures. All they have to do as a group is act accord-

ing to the procedures. If the group shows by its actions a “we-intention” to

abide by congressional process, that is enough for the pragmatic modality of

intent. Lest this confuse (as “intent” almost immediately forces us into think-

ing of mental states) there are easy examples of similar coordinated action.

Chess players who simply sit down to play the game without a word are oper-

ating based on a “we-intention” to jointly play the game in the pragmatic mo-

dality of intent.

122

The “we-intention” of congressional procedure

123

can be conceived as a

“meta-intention” in the following sense. It is a “we-intention” to provide a

120

The cloture rule permits sixty percent of the Senate to “vote to end a filibuster on any debata-

ble motion.” Michael J. Teter, Equality Among Equals: Is the Senate Cloture Rule Unconstitutional?,

94 M

ARQ. L. REV. 547, 551 (2010); see SENATE RULES, supra note 98, R. XXII, at 20–21 (providing

for the closing of debate after a cloture motion).

121

Michael E. Bratman, Shared Cooperative Activity, 101 PHIL. REV. 327, 331–32 (1992).

122

See id. at 340 (“A joint activity can be cooperative down to a certain level and yet competitive

beyond that . . . . [In playing chess,] [y]ou and I do not intend that our subplans mesh all the way

down. But you and I do intend that our subplans mesh down to the level of the relevant rules and prac-

tices. Our chess playing . . . is jointly intentional, and it involves shared cooperation down to the cited

level.”).

123

No one should misconstrue this as the claim that Congress only has group intent with respect

to its procedures. Consider an example from chess. No one says that the game cannot have taken

place, or that any move is not the playing of chess, because individuals sat at the board. Simply be-

cause they are playing by the rules of the game, we can infer a shared intent to play the game, and

conclude that each game and each move is conducted pursuant to the rules is a legitimate action of a

group activity conducted with the group intent to “play chess.” Lest this not convince, consider the

actions of corporations pursuant to rules. We can say that action following the corporation’s proce-

dures to issue 10K reports is a group action and reflects group intent to issue the 10K. We do not dis-

1640 Boston College Law Review [Vol. 55:1613

framework for individual we-intentions in the future.

124

A pragmatic we-

intention

125

with respect to congressional procedure governs processes for eve-

ry statute. For example, acting pursuant to congressional procedure reflects a

pragmatic “we-intent” that if a majority votes for the statute, that vote prevails

for every member in the group—no matter what their mental state or what they

have communicated about the bill. Those who oppose the statute share a prag-

matic we-intent with those who favor the statute to act as a group “we” as far

as the resulting legislation. And, why is this? Because, as even group intent

skeptics like Ken Shepsle

126

understand, if there is any core to a group, it is the

organization and procedures governing that group.

Group agency of any entity, whether it is a church, a corporation, or a

university, depends upon procedures to plan future action. Acting pursuant to

congressional procedure reflects a group intent to allow any particular piece of

legislation to constitute the act of the group. Think of the rule as a signpost

saying: “any act that follows according to these procedures is now stamped as

legitimate group action.” This applies to all steps within congressional process

legitimated by the rules. There is nothing terribly exotic about this: when we

agree to abide by a Supreme Court decision or an election, even if we disagree

with the outcome, we do so because we have made a commitment to proce-

dures we believe are legitimate.

To summarize: as we saw earlier, the problem with the group intent objec-

tion is that it imagines intent as the mental state of an individual. Intent does

not require a mental state, nor need it be limited to individuals. Intent may be

inferred from action. Group intent may be inferred from group action. Group

action happens because of sequential procedures. This is how the group plans

for the future. If this is correct, then when one looks for “congressional intent,”

one is not looking for any special mental state behind text or action—whether

of individuals or groups. Instead, one is looking for crucial context for inter-

preting group action. Put in other words, one is looking for the public meaning

of public acts done according to the rules. Congress has no mind, but it has the

functional equivalent of intent—a way to plan for the future. And that “way” is

essential context for understanding its actions.

miss this action because there were individuals involved or because the individuals had minds or be-

cause individuals talked to each other creating the report.

124

Special thanks to David Luban for clarifying this distinction.

125

Nothing in my claim about a “we-intention” to act pursuant to the rules requires that there be a

we-intent on any particular statute, whereby intent one means shared mental states or statements or

even votes.

126

Compare Shepsle, supra note 48, at 254 (arguing against the notion of legislative intent), with

ENNETH A. SHEPSLE, ANALYZING POLITICS: RATIONALITY, BEHAVIOR, AND INSTITUTIONS 374 (2d

ed. 2010) (arguing that “[p]rocedures are required to cut through all this instability,” given that “there

is no equilibrium to majority voting”).

2014] Rethinking Legistlative Intent & History 1641

F. Group Agency, Sequential Procedure, and Feedback

Lest one remain skeptical, it is important to see how recent work on

“group agency” parallels my claims about group intention. The philosopher,

Philip Pettit, and political economist, Christian List, have recently modeled

what they call “group agency” in an attempt to put to rest sophisticated claims

made by political economists that groups can never act rationally under the

Arrovian cycling thesis.

127

Although that thesis is beyond the purview of this

paper, List & Pettit’s arguments provide substantial analytic support for reject-

ing the “group intent objection.” Even if one rejects my version of group in-

tent, at the very least, their arguments suggest that the skeptical “cash value” of

group intent skepticism—that groups cannot act—should be rejected.

List and Pettit argue that group decisions emerge as a result of sequential

processes involving feedback.

128

As they explain, “a group’s performance as

an agent depends on how it is organized: its rules and procedures for forming

its propositional attitudes . . . and for putting them into action.”

129

Procedures

allow decisions that do not correspond to the intentions of any particular mem-

ber but may nevertheless be said to constitute group agency. Feedback allows

individuals to shift from their original preferences to ones that they “judge . . .

better, for the group to accept.”

130

To embrace this account of group agency, it

is important to recognize what the theory does not entail. It does not entail

some spectral intent hovering above the group. Pettit and List reject this view

of the “group-mind” as a failed legacy of an “emergentist” tradition in which

group-think emerges in mysterious fashion.

List and Pettit are also quick to explain that their model does not elimi-

nate individuals. The formal model uses the concept of supervenience

131

describe the relationship of individuals to groups. Imagine that we have data-

points arrayed on a graph based on particular numerical positions (3 on the

horizontal axis, 4 on the vertical axis). Now we add another one hundred data-

127

LIST & PETTIT, supra note 51, at 58. Their argument is aimed at addressing the problems of

incoherency suggested by positive political theory and Kenneth Arrow’s theorem. That part of their

analysis is beyond the scope of this paper.

128

See id. at 63.

129

Id. at 81.

130

Id. at 63.

131

List and Pettit explain supervenience as follows:

Think of the relation between the shapes made by dots on a grid and the positions or

coordinates of the dots . . . . Nothing causal needs to happen in order for the positions to

give rise to the shapes; suitably positioned, the dots simply constitute the shapes . . . .

Fix the number and positions of the dots and, as a matter of logical necessity, the shapes

will be fixed as well.

Id. at 65.

1642 Boston College Law Review [Vol. 55:1613

points, placing them on the graph based on given coordinates (5/6; 10/3; 4/2

etc.). By the time we are done, we see that the datapoints create a square shape.

The square shape is the group attitude; it is more than the individual data-

points, but it does not eradicate those individual datapoints. The bottom line:

one does not have to give up methodological individualism, or posit a “group

mind,” to believe that it is possible for a group to act in ways that no individual

member prefers ex ante or even ex post.

Although List and Pettit make a variety of arguments about group agency,

for my purposes, the central conceptual innovation is that sequential proce-

dures are points of preference, aggregation, and revision.

132

In this, List and

Pettit reject the caricatured assumption that “preferences are fixed.”

133

In fact,

as economists have known for several decades, preferences do change and they

should change with new information, under basic theories of rationality. They

also change because new reasons arise about alternative courses of action, in-

cluding new procedural reasons.

134

Put in other words, rules and procedures

may force endogenous preference-shifting. In this sense, there are no stable

exogenous preferences. As long as preferences cannot yield a result without

proceeding through a gauntlet of rules, preferences will shift as a result of

those rules or, if not, they will yield no result at all.

List and Pettit’s insights on group agency are more than theoretical—they

are also realistic. It is a fact that Congress works through sequential proce-

dures.

135

One would need no such rules if members could simply sit down and

determine, on a moment’s notice, how they would vote.

136

That, after all, is the

132

See id. at 63.

133

Franz Dietrich & Christian List, Where Do Preferences Come From?, 42 INT’L J. GAME THE-

ORY

613, 614 (2013).

134

Economists have been grappling with this for some time and concede that preferences can

change with new information as in Bayesian analysis, where initial probabilities are changed on the

basis of new information. See L

IST & PETTIT, supra note 51, at 12–13, 16. Dietrich and List argue that

differing alternatives can change one’s preferences, even if there is no new information. Dietrich &

List, supra note 133, at 613. One need not accept that account to accept the relevance of sequential

procedures asserted here, as these procedures are means to provide new information (information

about the voting preferences of other members).

135

See generally SINCLAIR, supra note 19 (discussing the legislative process in the House of

Representatives and the legislative process in the U. S. Senate).

136

I am not arguing against the relative stability of members’ preferences. See, e.g., Keith T.

Poole & Howard Rosenthal, Patterns of Congressional Voting, 35 A

M. J. POL. SCI. 228, 228 (1991).

Aggregate data prove the obvious truth that members try to vote consistently on issues—no one wants

to be a “flip-flopper” at election time. See id. at 261. However, at the margin, on first votes, non-roll

call votes, important procedural motions (i.e. cloture), or on votes for which there is no clear prece-

dent or effect, members have considerable leeway to form their preferences. Political pressure and

social change may as well yield “evolution” of members’ views on controversial issues. For example,

consider recent transformations on the question of gay marriage by various politicians. See Sen. Nel-

son Endorses Same-Sex Marriage, CNN:

POLITICAL TICKER (Apr. 4, 2013 5:57 PM), http://

politicalticker.blogs.cnn.com/2013/04/04/sen-nelson-endorses-same-sex-marriage/, archived at http://

2014] Rethinking Legistlative Intent & History 1643

claim made by those who accept a static, internal, notion of intent. In fact, leg-

islation is always beset by the vagaries of time and uncertainty. Ex ante, mem-

bers often do not know the preferences of other members or even their own

constituents. That uncertainty is managed by procedural means: procedures

force members to reveal their preferences. With new information about prefer-

ences, other members in turn may change their preferred positions.

To pass legislation, members must obtain the support of others—at least a

majority if not a supermajority. Procedures allow for feedback as to how others

will vote on a proposal or what bill changes are necessary to secure a mem-

ber’s vote. So, for example, let us say the chairman of a committee proposes a

bill. That bill is then heard in committee. At the markup, changes are made.

The new bill may no longer reflect the preference of any single committee

member, but does reflect the shared preference to move the legislation to the

floor for debate. If the bill ultimately passes, it may not reflect the individual

or additive preferences of individual members. This should not cause dismay

because it is inherent in the process of aggregation and persuasion.

To bring this down to earth, consider the Civil Rights Act of 1964.

137

Prior

to bill debate, members’ preferences were likely to have been all over the board.

Some would rather have had no bill (it was a long and fierce filibuster).

138

Some

wanted a stronger bill. But once faced with the likelihood that the filibuster

would fail, and the possibility of electoral consequences once the bill passed,

139

some members’ preferences changed. Members who ex ante preferred no bill

changed their preference to vote for cloture.

140

This example illustrates how procedural processes create occasions for

testing preference aggregations reached by subordinate bodies. When the Sen-

ate debates a bill,

141

before cloture is achieved, a compromise bill will be “sub-

perma.cc/DN63-4HS6 (“Florida Sen. Bill Nelson . . . joined a wave of Democratic senators announc-

ing their support for same sex marriage, reversing his position . . . .”); Michael Falcone & Z. Byron

Wolf, Republican Rob Portman Supports Gay Marriage, ABC

NEWS, Mar. 15, 2013, http://

abcnews.go.com/Politics/OTUS/republican-rob-portman-supports-gay-marriage/story?id=18736731,

archived at http://perma.cc/969J-GZ2V (“U.S. Sen. Rob Portman, R-Ohio, once on the short-list to be

Mitt Romney's 2012 running mate, has reversed his opposition to gay marriage . . . .”).

137

Civil Rights Act of 1964, Pub. L. No. 88-352, 78 Stat. 241 (codified as amended in scattered

sections of 28 and 42 U.S.C. (2006)).

138

Landmark Legislation: The Civil Rights Act of 1964, U.S. SENATE, http://www.senate.gov/

artandhistory/history/common/generic/CivilRightsAc-t1964.htm, archived at http://perma.cc/CP4Q-

N27C.

139

See SINCLAIR, supra note 19, at 19–21. This example reveals what is implicit in the examples

given in this Part: perceived electoral pressure (a bill whose “time” has come) is an important and

often dominant force motivating individuals to shift preferences. See id.

140

See id.

141

In the House, the Rules Committee, which issues the rules for debate on any bill, can second-

guess committees’ judgments and offer the opportunity for amendments. See id. at 36–44.

1644 Boston College Law Review [Vol. 55:1613

stituted” for the committee bill.

142

For example, in the case of the 1964 Civil

Rights bill, the Mansfield-Dirksen substitute was offered.

143

That bill included

a number of compromises tempering the law’s impact on business.

144

As the

bill moved through the process, procedural rules allowed for what Pettit and

List describe as preference aggregation and transformation. Ex ante the final

bill may not represent the wishes of any member, but because of this internal

dynamic, it comes to represent the act of the whole.

II.

LEGISLATIVE HISTORY RECONSIDERED

The idea that a group could have the functional equivalent of intent will

not satisfy those on either side of the great debates about legislative history.

145

Textualists claim one should never look at legislative history; purposivists

think all legislative history just fine. I reject both positions. I argue that textual-

ists must refer to some forms of legislative history, particularly statutory histo-

ry, to find the proper text. Furthermore, I argue that purposivists need to devel-

op far more discipline in searching for legislative context. Both textualists and

purposivists must distinguish between legislative history as statutory history,

legislative history as a record of usage, and legislative history as a record of

Congress’s decisionmaking process (statutes as elections). Put in other words,

both sides must begin to have a much more sophisticated theory of legislative

context. Section A of this Part begins by considering whether puposivists are

able to identify the relevant legislative history. In Section B, I consider textual-

ists’ ability to identify the right text. In Section C, I discuss legislative history

and group attribution.

A. Can Purposivists Identify the Right Legislative History?

Despite the widely received notion that legislative history is a self-evident

concept, it is important to make several distinctions, most importantly between

statutory history (the history of the text of the statute) and legislative history

writ large (the deliberative context). As we will also see, there are different

ways of using legislative history—as indicia of semantic “usage” or to deter-

mine “purpose.” In this Section, I argue that legislative history-as-history

should be reconceived. Statutes are not made in narrative form, but oscillating

political battle. Searching for legislative context should target disputed mean-

142

Id. at 50, 53–56, 72–85.

143

WILLIAM N. ESKRIDGE JR. ET AL., CASES ON LEGISLATION: STATUTES AND THE CREATION

PUBLIC POLICY at 19–20 (3d ed. 2001).

144

Id. at 19.

145

Some will make constitutional arguments, which are addressed elsewhere. Victoria Nourse,

Legislative History and the Constitution (forthcoming U. Pa. Const. L. Rev. 2014).

2014] Rethinking Legistlative Intent & History 1645

ings with the least effort for the most illumination, with due attention to con-

gress’s procedures and most importantly to the question of who won or lost the

debate. Certainly, it should not be the object of any discussion of legislative

history to capture the will of a concerted filibustering minority.

1. Statutory History and the Multiple Purpose Problem

Purposivists have purportedly never seen legislative history that they did

not like. They typically argue that legislative history should be used to find

purposes. There are three significant problems with this effort. First, just as

one can pick and choose texts, it is easy to pick and choose purposes. Indeed, it

is obviously easier to pick and choose purposes since legislative history is al-

most by definition more voluminous than the text of the statute. Second, in any

important debate, cross-purposes proliferate, which is to say multiple purposes

may cancel each other. Third, and perhaps more importantly, purposivism of-

ten assumes that Congress has not made a decision about specific texts when,

in fact, it may well have done just that or, at the very least, confined the inquiry

far more substantially than would an inquiry into purpose alone. Put in other

words, purposivism has the capability of making relatively easy cases more

difficult.

We can see this best with an example. In 1989, in Public Citizen v. U.S.

Department of Justice (“the ABA case”) the U. S. Supreme Court considered

whether the American Bar Association’s committees recommending judicial

nominees were required to comply with the Federal Advisory Committee Act

(FACA), a sunshine law.

146

The law was triggered when the President “estab-

lished” or “utilized” any committee of two or more persons.

147

The President

had obviously not “established” the American Bar Association but, on the oth-

er hand, he did appear to have “utilized” their advice on judicial nomina-

tions.

148

Justice William J. Brennan asked whether Congress could possibly

have had the “purpose” to cover a vast range of private entities, such as the

NAACP or the American Legion, when these organizations provided advice to

the President.

149

Ultimately, the majority opinion, in an act of apparent judicial

surgery, concluded that the term “utilize” did not really mean “utilize,” but

something more like “establish.”

150

Justice Brennan’s invocation of purpose does not solve the multiple pur-

pose problem. One cannot conclude, as the opinion suggests, that the only pur-

146

Public Citizen v. U.S. Dept. of Justice, 491 U.S. 440, 443 (1989).

147

Id. at 452.

148

Id.

149

Id. at 452, 453.

150

Id. at 463–64

1646 Boston College Law Review [Vol. 55:1613

pose of the statute was to exclude preexisting private entities. In fact, Congress

might have wanted precisely the opposite result—albeit in some cases. Gov-

ernment contractors, for example, were excluded. But if oil and gas companies

were on a committee advising the EPA on greenhouse gases, Congress wanted

FACA to apply. In fact, committee reports cited the quasi-private National

Academy of Sciences and its private advisors as an example of a “covered”

entity.

151

In short, the purposivist analysis here is subject to the multiple pur-

pose critique.

Statutory history could have avoided this problem. Rather than looking

for purpose in a voluminous record, one looks for how the pesky, seemingly

absurd, term “utilize” appeared in the statute. One finds that both houses

passed language covering committees “established” by the government, and

that “utilize” was never passed by either house, but first appeared in confer-

ence committee.

152

That decisional path gives important context to the mean-

ing of the term. Under the rules, committees cannot change text that has been

agreed to by the House and Senate (in this case “established”).

153

In the ab-

sence of objection, on the grounds that this rule has been violated, members

are entitled to assume that conference changes are not significant.

154

Taking

this statutory history approach, one can say that the Court should not interpret

the term “utilize” to mean anything significantly different from “establish.”

One can reach this result without weighing multiple purposes, or a lengthy ho-

listic recitation of the history of the FACA;

155

it can be reached by tracing stat-

utory text. For purposivists, however, it has never seemed necessary to trace

the process, as well as the purpose, of statutes.

2. False Assumptions About Congressional Lack of Foresight

One of purposivism’s standard assumptions is that Congress is unlikely to

have decided the specific question before the court because of foreseeability

(the legislature could not imagine every consequence). But this is an assump-

tion, not a necessary truth. Textualists suggest an analogous assumption. They

urge that purposivism tends to expand the domain of statutes, by moving the

inquiry up a level of generality, replacing a specific text with a more general

purpose.

156

The implicit assumption is that any recourse to legislative history

151

Id. at 460 n.11 (citing H. R. REP. NO. 91-1731, at 15 (1970)).

152

For further discussion, see generally Nourse, supra note 4.

153

CHARLES TIEFER, CONGRESSIONAL PRACTICE AND PROCEDURE: A REFERENCE, RESEARCH,

AND

LEGISLATIVE GUIDE 812–13 (1989) (“Conferees cannot remove language both chambers agree

on, or insert new provisions not in either chamber’s version.”).

154

See Nourse, supra note 4, at 93–98.

155

Public Citizen, 491 U.S. at 455–65.

156

Frank H. Easterbrook, Statutes’ Domains, 50 U. CHI. L. REV. 533, 552 (1983).

2014] Rethinking Legistlative Intent & History 1647

will be more general than the text of the statute.

157

However well worn these

claims, they are based on a falsifiable empirical assumption—that Congress

did not address the specific question. There is no reason to think that this is

always the case.

Consider the canonical case, Church of the Holy Trinity v. United States,

decided in 1892 by the U.S. Supreme Court.

158

Professor Vermeule has written

the classic argument supporting Justice Scalia’s interpretation, claiming that

the legislative history shows members knew that the statutory terms—“labor or

service of any kind” covered all kinds of labor including “brain toilers.”

159

Pro-

fessor Chomsky has written an equally lengthy reply arguing to the contrary

and emphasizing the legislative history as a source of a much narrower pur-

pose excluding the minister.

160

However, neither asked whether the legislative

history had anything specific to say about ministers or religion. In fact, there is

legislative history that comes close: Senator Morgan explained that “[p]eople

who can instruct us in morals and religion and in every species of elevation by

lectures . . . are not prohibited.”

161

This example shows that if one is focused

on purpose, at a high level of generality, one may well miss this legislative his-

tory.

162

Of course, if one never looks at legislative materials, or if one is look-

157

Radin, supra note 10, at 871 (“Interpretation is an act which requires an existing determinate

event—the issue to be litigated—and obviously that determine event can not exist until after the stat-

ute has come into force.”).

158

Church of the Holy Trinity v. United States, 143 U.S. 457, 458 (1892). In Holy Trinity, the

Court considered whether a federal law prohibiting a U.S. employer from contracting foreign laborers

applied to a church that contracted with a pastor in England. See id. Professor Chomsky has written

the classic law review article focused on the purpose of the Act to cover the mass importation of slave

labor. See generally Carol Chomsky, Unlocking the Mysteries of Holy Trinity: Spirit, Letter, and

History in Statutory Interpretation, 100 C

OLUM. L. REV. 901 (2000) (focusing on the idea that the law

at issue in Holy Trinity was designed to cover mass importation of slave labor).

159

Vermeule, supra note 22, at 1835, 1852.

160

See generally Chomsky, supra note 159.

161

16 CONG. REC. 1633 (daily ed. Feb. 13, 1885) (statement of Rep. Morgan) (emphasis added).

Morgan opposed the bill but supported the lecturer amendment. Id. For a lengthier discussion of this

case, see Nourse, supra note 4, at 118–28. In my opinion, this single statement does not resolve the

case, but it does suggest that the semantic meaning of “lecturer” could well include a “minister.” See

16 C

ONG. REC. 1633 (daily ed. Feb. 13, 1885) (statement of Rep. Morgan).

162

The only academic to have noted the lecturer exemption at the outset of the debate was Profes-

sor Tribe who focused on the constitutionality of the statute and thus had no reason to peruse the leg-

islative history. Laurence H. Tribe, Comment, in S

CALIA, supra note 5, at 92.

1648 Boston College Law Review [Vol. 55:1613

ing for something a good deal more general,

163

then one may miss the more

specific lecturer text and its explication entirely.

164

3. Statutes as Elections, Not Stories

There are significant dangers to roaming around legislative history with

no appreciation for congressional procedure. Purposivists, for example, seem

to be willing to find “purpose” anywhere and without regard to time. So, for

example, although early committee reports may well be irrelevant by the time

of final language on large bills, this seems to be no barrier to their citation.

165

So, too, purposivists seem to be willing to look for statutory evidence of pur-

pose based on all sorts of evidence that Congress may or may not have had

before it—regulations, advisory committee reports etc. One might of course

justify this on the ground that purposivists are trying to make the law as a

whole “coherent.” But this does not explain for example, why no purposivist

has ever argued that one should not cite those who opposed the bill, even a

filibustering minority.

166

Purposivism’s permissive everything-is-ok approach toward legislative

history can quickly get the interpreter in trouble. It is likely to lead to the fa-

miliar charge of “picking one’s friends,” and there are far more friends to pick

in legislative history than in statutory language. It is also likely to lead to “rep-

resentative” dangers, where by “representative” I mean that purposivists’ lack

of discipline can lead them to expend extra effort to impose on a statute a

meaning that members, based on bill text, would not have had. Consider the

lengthy legislative history discussion written by Justice John Paul Stevens in

the 1989 U.S. Supreme Court decision Green v. Bock Laundry Machine.

167

There, Justice Stevens provides an erudite lecture on the origins of the eviden-

163

So, for example, in Holy Trinity, if one determined that “lecturer” was the relevant text, then

one would look to the most relevant and specific legislative context—discussions of the lecturer ex-

emption. Senator Morgan’s remark on “lecturers on religion” does not slam the door shut. After all, it

is the statement of a single Senator and he might have referred to itinerant speakers on the Chatauqua

circuit, not behind a pulpit. The point is simply that the legislative history makes clear that members

took the lecturer exemption seriously.

164

To suggest that there are cases in which purpose may bias the legislative history inquiry is not

to argue that purposivism as a theory of statutory construction is wrong. We are all purposivists now:

even Justice Scalia has embraced purposivism as long as it is based on the text of the statute. It is to

say that roaming around legislative history looking for purposes should be reserved for cases when all

other approaches are exhausted.

165

For an example of this phenomenon, see United Steelworkers v. Weber, 443 U.S. 193, 230–52

(1979) (Rehnquist, J., dissenting) (citing congressional debates that occurred before introduction of

the crucial statutory provision at issue in the case, as well as minority reports); see also infra notes

173–175 and accompanying text (discussing this aspect of Weber).

166

Nourse, supra note 4, at 114–18.

167

Green v. Bock Laundry Mach. Co., 490 U.S. 504, 514–24 (1989).

2014] Rethinking Legistlative Intent & History 1649

tiary doctrine governing the admission of a witness’s prior felony convic-

tions.

168

After a lengthy survey of non-legislative materials, including legal

treatises and American Law Institute proposals,

169

he ultimately concludes that

the Congress decided to apply something close to the common law rule, allow-

ing the admission of prior-crimes evidence. A strong “pro-common law” pur-

pose, nevertheless, is hard to square with the back and forth textual changes

that actually occurred in Congress. The Senate passed the common law rule.

The House passed a wildly different rule contrary to the common law. The

Houses went to conference and they changed the rule to adopt neither the

House or the Senate version. Given this back and forth, it is hard to see a co-

herent purpose to adopt the common law. As this shows, the building of text is

not necessarily a coherent process, but a debate which oscillates, as Congress

decides, redecides, and then compromises.

Traditional ways of doing legislative history can lead to fantasy narra-

tives, imposing coherence on a tale never meant to be coherent. In the famous

affirmative action case, United Steelworkers v. Weber, decided by the U.S. Su-

preme Court in 1979, Justice William Rehnquist described legislative history

in a lengthy dissent.

170

Like Justice Stevens in Bock Laundry, Justice

Rehnquist writes a history devoid of understanding basic principles of con-

gressional process. First, the opinion ignores statutory history, which certainly

has a better pedigree than roaming the record. The most important and specific

statutory provision on affirmative action was section 703(j) which was added

in the Senate prior to cloture—that provision specifically provided that no

company would be “required” to impose affirmative action.

171

Not only did the

opinion ignore the preeminence of a later, qualifying and more specific text, it

also cited a vast amount of legislative history that could not possibly have had

anything to do with section 703(j). For example, the Rehnquist dissent cited

debates on the House floor, in committees in the House, and early Senate de-

bates before cloture.

172

What is worse, the opinion even cited a minority report:

surely filibustering minorities should not determine the meaning of a bill. Stat-

168

See id.

169

Id. at 511–14.

170

Weber, 443 U.S. at 230–52 (Rehnquist, J., dissenting).

171

Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(j) (2006) (“Nothing contained in this subchap-

ter shall be interpreted to require any employer, employment agency, labor organization, or joint la-

bor-management committee . . . to grant preferential treatment to any individual or to any group.”).

Cloture was voted on June 10, 1964. See 110 C

ONG. REC. 13,327 (1964). Section 703(j) is reprinted in

the precloture bill at 110 C

ONG. REC. 13,315 (1964). See Nourse, supra note 4, at 106–08 (discussing

the relevant history of the bill).

172

See Nourse, supra note 4, at 106–08 (discussing this aspect of Justice Rehnquist’s dissent in

Weber).

1650 Boston College Law Review [Vol. 55:1613

utes are elections: some views win and some lose. To the extent that statutes

have coherence, it is the coherence of votes, not of stories.

Purposivists have assumed, without question, that legislative histories

should be narratives. But this assumes that the making of a statute is a narra-

tive process—that it is possible to tell a coherent tale, rather than one in which

zigzagging and contradiction prevail. As students of narrative

173

know, the se-

cret and perverse logic of narrative operates in reverse. Narrative is created by

“a discoverer standing at the end of the process, then laid out as a plot leading

from beginning to discovery. Earlier events or actions make sense only as their

meaning becomes clear through subsequent events.”

174

The same is true of leg-

islative history and congressional process. Imposing a narrative is in fact far

harder than zeroing in on the key amendment or a change in bill text. Imposing

a story line on an electoral give and take can prove a time-consuming exercise

in judicial imagination. Purposivists have made their work much harder than it

has to be by failing to distinguish statutory history from legislative history, and

from failing to understand how legislative history is made. In the process, they

have inadvertently invited the textualist reply that they seek to find justifica-

tion for a result in legislative history, rather than engage in a principled search

for contextual meaning.

B. Can Textualists Identify the Right Text?

Textualists concede that there is no way to understand the meaning of a

term without context.

175

They urge that they are not literalists, but understand

the basic modern findings of linguistics that meaning is inherently contextu-

al.

176

They avidly consult particular kinds of context, such as canons or dic-

tionaries as evidence of semantic meaning. The question becomes, of course,

why procedural context should not count as important context and why it

173

The “logic of narrative” is one of reverse engineering, “the determination of means by ends.”

Peter Brooks, Law and Humanities: Two Attempts, 93

B.U. L. REV. 1437, 1458 (2013) (quoting Gér-

ard Genette, Likelihood and Motivation, in F

IGURES II, at 94 (1969) (the work of a literary theorist)).

174

Id.

175

BRYAN GARNER & ANTONIN SCALIA, READING LAW: THE INTERPRETATION OF LEGAL

TEXTS 33 (2012) (arguing that the context embraces textual purpose, historical usage, and syntactic

setting). Garner and Scalia write, “[t]he principle of semantic content of words is limited to permissi-

ble meanings . . . . But some do not accept it: They seek to arrive at legal meanings through some

method other than discerning the contextual meaning of words and sentences and paragraphs.” See id.

176

“Modern textualists start from the premise that ‘a large number of contextual understandings

will be assumed by all speakers of a language,’ and that many such understandings will be ‘largely

invariant across English speakers at a given time.’” Manning, supra note 10, at 2458. “In contrast with

the plain meaning school’s emphasis on literal meaning, modern textualism screens out many absurdi-

ties at the threshold by accounting for the contextual nuances of language, especially the particular

nuances and conventions that the subcommunity of legal speakers has developed to facilitate effective

legal communication.” Id.

2014] Rethinking Legistlative Intent & History 1651

should not take priority if the textualist aims to be a faithful agent of Congress

rather than Blackstone or Webster. Put in other words, why ignore Congress’s

rule context, when even the constitution supports the creation of those rules by

each house of Congress?

177

Textualists have not articulated a rationale, however, about why some

context matters rather than others. Why do dictionaries and canons count?

Why not legislative context? More importantly, why are dictionaries and can-

ons more faithful expressions of Congress’s meaning? We know, from recent

empirical studies, that drafters tend not to know canons.

178

We also know that

canons have no specific constitutional sanction, as do Congress’s rules.

179

textualism is all about rules (as some have contended), then why not Con-

gress’s rules? At the very least, textualists should concede that the all-or-

nothing position is untenable, based on the very principles they hold dear—

respect for text, semantic meaning, and judicial restraint.

1. Entextualization: Choosing the Right Text

To find the meaning of language one must identify the key text. Lawyers

learn to identify and pull chunks of text out of a larger statute. Linguists call

this process “entextualization,” which means that some language is identified

as “the” relevant language. So, in Holy Trinity, the Court focused on the terms

“labor or service of any kind.”

180

This process of “entextualization” is an iden-

tifiable step in the process of attributing meaning—even if it has been almost

entirely ignored by statutory interpreters.

181

If the text “entextualized” is wrong

or incomplete, so too will be the interpretation.

Hundreds of pages, quite literally, have been written about Holy Trinity,

182

a case Justice Scalia made the poster child for new textualism. In his deserved-

ly famous Tanner lectures,

183

he concluded that although the result might seem

odd—using an anti-slave labor statute to cover a British minister—the statute

did in fact cover the rector. The statute said “labor” of any kind, and that in-

177

See U. S. CONST. art. I, § 5 (granting authority to the individual houses of Congress to set their

own rules of proceeding).

178

Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside–An Empiri-

cal Study of Congressional Drafting, Delegation, and the Canons: Part I, 65

STAN. L. REV. 901, 902

(2013).

179

Cf. U. S. CONST. art. I, § 5.

180

143 U.S. at 458.

181

Entextualization appears to be a move that takes a term—such as labor or lecturer—out of

context. The text appears, once isolated, to have no context, having been isolated as an autonomous

object for legal analysis. However, isolating text is a process by which the text is in fact “recontexual-

ized” within the judicial process, according to judicial values. See id.

182

See supra notes 158–164 and accompanying text.

183

SCALIA, supra note 5, at 18–23.

1652 Boston College Law Review [Vol. 55:1613

cluded brain toilers. That argument assumes that there is one relevant text. Fo-

cusing on the term “labor” is a choice, and a significant one. As this and other

cases show, the first frame by which one analyzes a case may not be the best or

only one. In fact, there is another relevant text—the statutory exemption for

“lecturers”—a text that appears to cut precisely in the opposite direction, ex-

cluding the good rector. There is no immediate reason based on the semantic

content of “lecturer”

184

to believe that ministers do not count as “lecturers.”

One who lectures (who orates at a lectern in front of groups of people) in-

cludes a minister.

185

Textualism requires a theory of which text to pick—a theory of entextual-

ization. If one does not see that “lecturer” may be relevant, then presumably

one has made the case plain by fiat, not fact. Statutory history can provide a

check against errors at the entextualization stage—relying upon the wrong, or

a partial, text. If statutory history were analyzed, one would compare the bill as

introduced and passed by the House, the bill as introduced and passed by the

Senate, and the final text. When comparing these bills (which computers can

do rather easily these days), there is a far greater chance that one will note tex-

tual changes and thus differences. In Holy Trinity, for example, a comparison

of statutory text helps the reader focus on the lecturer exemption.

2. Not All Text Is Alike: (or, at least Congress’s rules say that).

To see why interpreters should analyze statutory history, it is important to

remember that Congress’s rules give greater weight to some texts as opposed

to others . . . .

186

Consider the ABA case again.

187

If one had started with statu-

tory history, one could easily have avoided the Justices’ conclusion that the

statute was absurd.

188

Statutory history reveals that both houses had passed the

term “establish” (leaving the ABA out), but the conference committee added

the term “utilize” (potentially covering the ABA). If a conference committee

adds language that significantly changes the bill, it violates House and Senate

184

Note that in urging a broad interpretation for “labor,” textualists are using a semantically ex-

tensive meaning of the term, and presumably that same type of meaning should be applied to other

terms in the statute. An extensive meaning for the term “lecturer” would include any person who

could lecture, therefore excluding the rector. “Labor” could, by contrast, be interpreted to mean a

prototypical laborer, or manual laborer. See generally Nourse, supra note 4, at 124–25 (illustrating the

difference between prototypical and extensive meanings).

185

See supra note 161 and accompanying text.

186

See H.R. DOC. NO. 112-161. Text added in conference committee, as this example shows, is

viewed under the rules differently from other text. Members assume that the committee has followed

its rules not to make significant changes in texts that are already agreed upon. Put in other words, if

both houses pass text, that text takes priority in the committee and on the floor.

187

Public Citizen, 491 U.S. at 440.

188

See id.

2014] Rethinking Legistlative Intent & History 1653

rules.

189

Under those rules, members of congress are entitled to interpret “con-

ference committee” text as the equivalent of “no significant change,” in the

absence of a floor objection. No one in Congress wants a committee rewriting

the bill, trumping the will of 535 members. Indeed, a court that gives “utilize”

the same weight as “establish” in this case does precisely what textualists often

claim that they want to avoid—it gives authority to language that only a part

of Congress wrote.

Statutory history—tracing the path of the law’s language—is also likely

to reveal conflicts in text that faulty entextualization decisions obscure. Con-

sider Bock Laundry, in which the U.S. Supreme Court considered whether an

evidentiary rule applied to a plaintiff if the statute said “defendant.”

190

No one

thought the statute made any sense, including Justice Scalia, but everyone fo-

cused on a single term “defendant.” As in the ABA case, the pesky, seemingly

absurd term in Bock Laundry, appeared in conference. Perhaps more im-

portantly, in reviewing the statutory history, one finds that there were other

terms potentially relevant to the question whether the evidentiary rule at issue

applied to civil cases. Both houses passed language that appeared to cover civil

and criminal cases, as is standard in evidentiary rules, by covering all witness-

es.

191

The term “witness” was never discussed as part of the Supreme Court’s

statutory analysis, even though it seems to exclude an interpretation that the

rule applies only in criminal cases. Instead, the Justices focused on a single

term—defendant—the one added in conference—the term with the least legit-

imacy from textualists’ own perspective.

192

3. Juriscentric Cognitive Bias

The third problem at the entextualization stage is cognitive bias in deter-

mining “plainness”—the problem of finding language “plain” to a judge that

would not be “plain” to a member of Congress or might be “plain” in an entire-

ly different way.

193

In interpreting statutes, all statutory interpreters agree that

the standard cannot be the “will of the judge,” but the “will of Congress.”

194

But every judge is faced with the ancient problem of the philosopher in the

189

See H.R. DOC. NO. 112-161.

190

Bock Laundry, 490 U.S. at 527.

191

See id. at 509–10.

192

Textualists claim that committee reports should not be replied upon because they do not repre-

sent the membership as a whole, but only part of Congress.

193

When I assert the possibility of judicial bias, I do not mean that judges are any less biased than

other decisionmakers, simply that everyone is biased toward their own context and against foreign or

unknown contexts. Social psychologists have found, for example, that people as a general rule tend to

attribute social phenomena to individuals rather than the situation. They tend, thus, to fail to focus on

context.

194

GARNER & SCALIA, supra note 175, at xvi–xxviii.

1654 Boston College Law Review [Vol. 55:1613

cave: one’s perspective may be darkened to the world, in this case darkened to

the world of Congress. We can never know, ex ante, whether Congress would

have made a decision on a particular text different from the one made by intui-

tive judicial reflection. As the great contracts scholar Corbin argued, every in-

terpreter uses some extrinsic evidence, even if it is the interpreter’s own life

experience: “[W]hen a judge refuses to consider relevant extrinsic evidence on

the ground that the meaning of written words is to him plain and clear, his de-

cision is formed by and wholly based upon the completely extrinsic evidence

of his own personal education and experience.”

195

If this is correct, the only

way to protect against ex ante judicial bias is to look for some kind of check.

We know, for example, that there are famous cases in which the plainness

judgment, at the entextualization stage, was quite wrong. In 1992, in Pepper v.

Hart, decided by the House of Lords, the most famous example of this oc-

curred.

196

The question was how to calculate taxes on fringe benefits: the tax-

payer was a teacher who received an educational benefit for his children at his

school. When the case was initially argued, the Lords agreed that the statute

was plain, ruling for the government that “expense incurred” was expense to

the employer for non-employees as opposed to the marginal cost of adding

another student. On reargument, after the Lords looked at Hansard (Parlia-

ment’s records), they reversed. Hansard showed that a parliamentary decision

had been made and that decision was precisely the opposite of the apparent

“plain” meaning of the text before looking at the legislative history. Put in oth-

er words, legislative context changed the “plain” meaning quite radically, from

a plain meaning against the taxpayer to one for the taxpayer.

197

Textualists might respond that these examples are simply instances of bad

textualism. The Lords in Pepper should have known that the statute’s meaning

was not plain.

198

Likewise, the Supreme Court in Bock Laundry or Holy Trinity

should have known that there were texts in need of reconciliation.

199

This

recognition alone, however, does not provide much help in resolving such cas-

es. Once a judge finds conflicting texts—“labor” and “lecturer” or “witness”

and “defendant”—how are these to be reconciled or interpreted? If the seman-

tic content does not yield a single answer, but points in two directions, then the

195

Stephen F. Ross & Daniel Tranen, The Modern Parol Evidence Rule and Its Implication for

New Textualist Statutory Interpretation, 87 G

EO. L.J. 195, 197 (1998) (quoting Arthur L. Corbin, The

Interpretation of Words and the Parol Evidence Rule, 50

CORNELL L.Q. 161, 164 (1965)) (emphasis

added).

196

Pepper v. Hart, [1993] A.C. 593 (H.L.) 634 (U.K.)

197

See id. at 627 (opinion of Lord Browne-Wilkinson). On reargument, the court noted that legis-

lative history indicated a deliberate decision to withdraw a provision of the tax law which would have

resulted in heavier taxes for the teacher in this case. See id.

198

Cf. [1993] A.C. 593 (H.L.) at 634.

199

C.f. Bock Laundry, 490 U.S. at 527; Holy Trinity, 143 U.S. at 458.

2014] Rethinking Legistlative Intent & History 1655

statute has no “plain” meaning. Textualists will insist that judicial canons can

be useful in resolving conflicting texts. But it is clear that this is not true in all

cases. It is certainly not true in the ABA case

200

or Pepper.

201

Ex ante, canons

cannot tell one if the text is plain, which text to pick, or how to reconcile con-

tradictory texts.

4. Legislative History and Usage

Finally, even if none of these arguments persuade, textualists should con-

cede that legislative history may be used as evidence of semantic meaning.

202

The congressional record is an extraordinary resource for understanding how

members (presumably English speakers) use words, namely semantic usage.

Nevertheless, once one opens the door to legislative history as a form of usage,

it is difficult to understand why it should not be opened to include Congress’s

decisions on specific texts. Let us assume, in Pepper, that we can find one

hundred uses of the term “benefit” and all of them suggest a narrow definition

supporting a ruling against the taxpayer. If we know, as we do know from the

case, that the government withdrew and opposed that result, then semantic

content becomes a way to replace Parliament’s actual decision with the results

of a strange judicial adventure in semantics.

Usage inquiries suffer from two other significant problems. First, they

depend upon determining the appropriate term in the statute at the “entextual-

ization” stage. If you think that the only relevant term in the Holy Trinity case

is “labor,” for example, your usage inquiry will be skewed, and pointless if you

choose the wrong text. Second, the usage inquiry can distort if it does not look

to the sequence of Congress’s decision. Would it have helped, for example, to

find how Congress used the term “utilized” in the ABA case? In fact, it would

have distorted our best evidence of Congress’s actual decision: the statutory

history showing that “utilized” was added in conference committee.

C. Legislative History and Group Attribution

Now that we have identified different forms of legislative history, with

their vices and virtues, it is possible to consider the issue raised by the first

Part of this Article, which is the degree to which the question of “group” action

should affect the interpretation of legislative context. Elsewhere I have elabo-

rated on the ways in which Congress’s sequential procedures should affect the

reading of legislative history. But once we enter the world of group action it

200

Public Citizen, 491 U.S. at 440.

201

See [1993] A.C. 593 (H.L.) at 634.

202

SCALIA & GARNER, supra note 175, at 33.

1656 Boston College Law Review [Vol. 55:1613

becomes clear that this is not enough. If we are looking for legislative “con-

text” we should recognize that the context includes the recognition that statutes

are made over time by winners and losers.

203

We should also remember that

legislative context must be public action legitimized by “the group.”

If this is correct, it provides an important opportunity to distinguish be-

tween legislative context properly attributable to the group and not properly

attributable to the group. For example, courts are skeptical of individual mem-

bers’ statements as the claims of lone wolves. They should be: members them-

selves see individual members’ speeches as little more than the reflection of a

particular member’s preferences. On the other hand, the group views some in-

dividual statements as performing a larger deliberative function, as when

statements are made by the author of the amendment or manager of the bill. To

be a “manager” or “author” is to assert representative positions of those sup-

porting the bill. Implicit group attribution is part of the common-sense of legis-

lative context. Statements violating the rules or having no ability to persuade

the group (such as remarks inserted after debate) should not be considered

proper group action or proper legislative context.

204

So, for example, in 2006,

in Hamdan v. Rumsfeld, the Supreme Court properly disregarded deceptive

statements made by legislators, just as they would be rejected by members of

Congress as post-hoc attempts to influence the courts.

205

This raises questions about items like committee reports, traditionally the

“gold standard” for legislative history. That conventional wisdom deserves

serious rethinking,

206

but not because these reports are the work of a committee

as opposed to the whole (the argument textualists tend to make). Ex ante, the

whole delegates to the committee. In the absence of anything else, the commit-

tee report may be the best evidence of meaning of the whole. Members view

the committee report as important on the committee bill, for example. The

problem is the committee bill may bear no resemblance to the statute. If it

turns out the committee bill was significantly amended (as it often is), then an

early committee report may be entirely irrelevant. For example, if the key stat-

utory provision first appears in a compromise substitute created to overcome a

filibuster, then the earlier committee report may have little relevance as it re-

lates to a now-superseded version of the bill.

In sum, there are two kinds of questions we must ask in developing any

complete theory of legislative context. At the wholesale level, the question is

203

Nourse, supra note 4, at 75.

204

Further explication of this idea is outside the scope of this paper. For more information, see

Nourse, supra note 4, at 71–72.

205

Hamdan v. Rumsfeld, 548 U.S. 557, 583 (2005).

206

In part, it deserves rethinking because interpreters should not believe that because they do not

find a committee report there is no legislative history. Many statutes bypass committee for example.

2014] Rethinking Legistlative Intent & History 1657

about the group: if there is no group authorization (i.e. post-hoc or deceptive

statements) or no possibility of group attribution (i.e. statements members at-

tribute only to individuals) the legislative context should be rejected without

special justification. At a retail level, however, even if properly authorized, in

any particular case, evidence of legislative context may be irrelevant because

of the statutory sequence and history. As for committee reports, this latter

judgment has become increasingly likely because: (1) the high incidence of the

filibuster means that the bills considered in the Senate are likely to vary quite a

bit from committee bills; and (2) the high incidence of partisanship makes it

more likely that bills will evade the committee altogether.

207

ONCLUSION

Textualism and purposivism were created during a century-long period of

legal education marked by “juriscentricity.”

208

In this world, professors taught

and enculturated “students to respect, admire, and emulate the thought, the

knowledge, the wisdom, and even the style of great judges, not great legisla-

tors.”

209

By comparison, the great statutes of the twentieth century, which lib-

erated entire peoples (namely blacks and women and the disabled and the

aged) became a kind of “faux law,” or lower law, the work of usurpers too stu-

pid to understand “higher” constitutional law, and motivated only by the self-

interest of “uninformed [and] hate-filled constituents.”

210

No wonder there are

no courses on congressional procedure and no wonder no one knows about

Rule XXII, the cloture rule, or that the Senate requires a supermajority to pass

all legislation.

The good news is that all this is beginning to change, albeit after a centu-

ry of calls for its change. Recent scholarship is full of new and important work

revealing that the juriscentric focus has given us a rather skewed view of the

legislative process. Professors Gluck and Bressman have shown that, contrary

to what some judges assume, drafters do not know canons.

211

Professor Parillo

has explained that the idea of legislative history was constructed by post-New

Deal administrative lawyers for their state-building purposes.

212

Professor

207

See Dan T. Coenen, The Filibuster and the Framing: Why the Cloture Rule Is Unconstitutional

and What to Do About It, 55 B.C.

L. REV. 39, 43 (2014) (claiming that the current filibuster system

has changed decision making in the Senate in a significant way).

208

Robin West, Toward the Study of the Legislated Constitution, 72 OHIO ST. L.J. 1343, 1348

(2011).

209

Id. at 1347.

210

Id. at 1349.

211

Gluck & Bressman, supra note 178, at 901–02.

212

See generally Nicholas R. Parrillo, Leviathan and Interpretive Revolution: The Administrative

State, the Judiciary, and the Rise of Legislative History, 1890–1950, 123 Y

ALE L.J. 266 (2013) (de-

scribing how the New Deal administrative state pushed legislative history on the judiciary).

1658 Boston College Law Review [Vol. 55:1613

Eskridge has perfected his pathbreaking study on congressional overrides of

judicial statutory interpretation,

213

showing how and when Congress is likely

to respond to judges’ interpretive errors. This new scholarship reflects the ur-

gent need to reverse the gravitational pull of juriscentricity, the need to aim our

efforts away from how judges think we should interpret statutes to how Con-

gress and the President make statutes.

If this is right, it is time to move beyond the great debates about legisla-

tive intent, and to elevate Congress to the position of group agent. To speak of

Congress as having or not having an “intent” has become something of a slur.

As if, unlike courts, Congress does not have the commitment to make a deci-

sion or acts in ways that hover in mental ether rather than in public. We know,

of course, that the GI Bill, the Civil Rights Act of 1964, the Americans with

Disabilities Act, and the Violence Against Women Act are quite durable, hav-

ing helped change a nation. And yet lawyers are quite comfortable treating

these statutes as something lower in the most banal of discursive methods, by

reducing them to bits of text or fleeting intents. My point is not to valorize

Congress. A group agent is only as good as the procedures it adopts. When

searching for Congress’s meaning, we must attend to that context and not let

ourselves be deceived by the conventional connotations of the terms legislative

“intent” or “history.”

213

See generally Matthew R. Christiansen & William N. Eskridge, Jr., Congressional Overrides

of Supreme Court Statutory Decisions, 1967–2011, 92 T

EX. L. REV. 1317 (2014) (describing congres-

sional overrides of judicial statutory interpretation).