Sunday, November 14, 2010

Scalia v. Breyer: Do legislators' intentions matter?

AP reports that:
One of the most conservative justices on the U.S. Supreme Court and one of the most liberal ones sparred Friday over capital punishment, the direct election of senators and various other constitutional questions during a rare public debate that highlighted their philosophical differences.
Antonin Scalia, 74, the longest-serving current justice, appointed by Republican President Ronald Reagan, and Stephen Breyer, 72, appointed by Democrat Bill Clinton, shared the stage in front of a crowd of thousands during a West Texas event organized by Texas Tech University Law School.
The most interesting part to me of this public clash, or at least what's in AP's report, was this exchange:
Scalia said he has no interest in what legislators intended when making a particular law. Breyer countered, saying judges need to go back and find out the purpose legislators had when crafting a bill.

"I don't at all look to what I think the legislature thought," Scalia said. "I frankly don't care what the legislature thought."

Breyer responded quickly, saying, "That's the problem," which brought thunderous laughter from the crowd.

"You've got to go back to the purpose of the legislation, find out what's there," Breyer said. "That's the democratic way, cause you can then hold that legislature responsible, rather than us, who you can't control."
I think I tend to agree with Scalia on this one. Legislative intent is a muddy measure. In practice, legislators' recollection of their own intent tend to be protean, adjusting to the contingencies of the moment as opposed to a strictly historical assessment.

Whaddya think? As the Texas House and Senate begin filing bills, do legislators' intentions matter or only what's written on the page?


Anonymous said...

I don't think Scalia's belief is any real surprise, and I too can see his rationale.

However, one standard used in some cases is how closely the effect of a law matches its intent. In other words, if a law has the effect of throwing the baby out with the bathwater, when all that is necessary to protect the public and effect the intent of the legislation is to throw out the bathwater, then the law is too broad. In that case the intent matters a great deal--and this sort of review is frequently used to invalidate statutes.

But of course, we all know Republicans like Scalia don't really care about babies...


Anonymous said...

The lege thinks intent is important. It included as part of the Code Construction Act, Sec. 311.023, Government Code, which reads as follows:

Sec. 311.023. STATUTE CONSTRUCTION AIDS. In construing a statute, whether or not the statute is considered ambiguous on its face, a court may consider among other matters the:

(1) object sought to be attained;

(2) circumstances under which the statute was enacted;

(3) legislative history;

(4) common law or former statutory provisions, including laws on the same or similar subjects;

(5) consequences of a particular construction;

(6) administrative construction of the statute; and

(7) title (caption), preamble, and emergency provision.

And most Texas courts say that if a statute is ambiguous, and thus subject to being construed by the court, that legislative intent should be determined.

In determining legislative intent, the general rule is that testimony from individual legislators--as to what the intent of the legislature as an entity--is usually not allowed or considered.

Soronel Haetir said...

I would say that the only intention that is shared by the legislative body is contained in the enacted text. Many times, probably even most times with complicated laws, if you were to ask every legislator (even immediately after passing a new law) what their intentions were you would get different and even conflicting answers. Preambles, findings and other such portions of text aren't supposed to be looked to when statutory text is unambiguous but I would argue that those portions are the only intentions that we know were shared by a majority of the body. Committee reports are the known intentions of at least a majority of the responsible committee. Statements made during debate give you an idea what individual members were thinking (often though that will show they have only the barest understanding of what they are discussing, or are even wrong in that understanding, even before the law is passed). And statements made afterward, I would argue, are meant to try and sway understanding of the law rather than express what the body's intentions were.

I believe Scalia has the far better position in this area.

Don said...

I agree that the judges should look at the law itself, and the consequences. Then a bad law might get thrown out. Otherwise, as long as the "good intentions" were there, it might stay even with the unintended consequences. Oh, my. I dearly hate to agree with this guy.

Z. Vaughn said...

If the law is broad or ambiguous, I think it is important to look at the intent of the legislature, which means going to back and looking at the debate which occurred. Otherwise, it's not necessary.

Also, how does this jive with Scalia's idea of original intent vis a vis the Constitution. These two views would seem to be in conflict.

Soronel Haetir said...


I believe Scalia espouses original public understanding rather than original intent (while Thomas is much more tied to the enacted text). Such public understanding is informed by materials such as the federalist papers, the reports of the various state ratification conventions and other such sources. Scalia is, however, far more willing to depart from what he would otherwise accept as that original understanding in order to preserve long standing precedent (witness the different outcomes between Scalia and Thomas in Gonzales vs. Raiche for an example of that, or even the different path each would have taken to uphold the conviction in Lawrence vs. Texas).

I'm not sure that there are any serious originalists who try to take a private intentions view. That seems like a far less tenable posture than the available alternatives.

Shad said...

I went to this and it was a good debate moderated by NYU Professor Arthur Miller. I thought Breyer talked about twice as much as Scalia to deliver about the same number of points. Breyer would give a five minute example and Scalia would counter with 20 words that were equally as convincing... but maybe I am biased on this one.

The entire debate was about this topic, textualism vs. intentionalism, all the other topics they discussed were merely to substantiate their beliefs on this matter. Scalia mentioned that he hates being referred to as an originalist or a constructionist, but recoiled in disgust when somebody the constitution was referred to as a "living document".

They are having a second debate Monday at the TTU law school, but this is a much smaller audience with only about 200 tickets all going to law students, profs and rich alumnus. (I'd say there were near 10,000 at the Friday event).

Anyway there were cameras Friday night and there will be cameras Monday night, so maybe they'll show up on the internet at some point.

Texas Maverick said...

I am way out of my comfort zone on this, but here goes. I watched this same debate on Cspan and yes Scalia does get very upset about the "living constitution." Brown vs Education is the example most often used and if not for Breyer's viewpoint we might still have separate but equal.

In the area of sex offenders today, Scalia's viewpoint is being followed; but if the intent of Jessica's and Megan's laws were followed then we might really have an effective registry, reasonable child safety zones and effective notice to neighbors. The expansion and retro application of new laws goes way beyond the intent of these laws as passed. Some who originally lobbied for the laws say the current situation was never their intent and suggest a complete overhaul. Instead we now have Adam Walsh extending federal law into state unless you want to bypass $$$$.

I agree with Scalia that we should stay with the law as written except when it is vague or too broad. Local residency ordinances say they are not punishment, but civil regulation, but the supporters purport to be concerned with public safety.

Every candidate in this election eventually threw the SO issue into their ads. When discriminatory laws are written then the courts are the only recourse so intent can be important when looking at laws. As Senator Whitmire said at the Correction Committee hearing this summer, if we don't want to get slaughtered everyone has to go to their individual representative because it's "political suicide for one or two to take a public stand on this issue. Reps are going to say the same thing, they need to be reelected.

Where else do we go but the courts and look at intent. I my opinion we would not have civil rights or women's rights today if the courts had not taken intent into consideration.

Anonymous said...

Too many legislator's write bills that have far reaching consequences that they had not considered. Take a look at proposed SB 151. I am sure the intent is to keep ilegal aliens from clogging the probation system, utilizing resources that are stretched too thin already. However, what will happen, if this wondrously short-sighted bill is passed, will be a large increase in our overrowded prisons or worse yet, deportation without criminal consequences. So yeah, intent should be looked at, however, it should be looked at before a bill is passed.

Anonymous said...

Grits, when Breyer is talking about "legislative intent" he's not talking about divining it from whole cloth or taking a survey. Legislative intent is often very easy to see in committee reports, conference reports, transcripts, and the like. It's not hoo-doo or guesswork most of the time.

Anonymous said...

When you consider intangibles, you grey the line. The same for laws, when you start jerrymandering with something that does not clearly state such, you get opinions that are outside of the written word.

how many laws have we seen in the last 10 years that incorporates remedial measures only under ExPoste Facto, because someone decided that was what 'must' have been inferred.

in a contract, nothing is inferred, it is written out in language so that everyone understands prior to signing their name.