Original intent is a theory in
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
concerning
constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
al and
statutory
A statute is a formal written enactment of a legislative authority that governs the legal entities of a city, state, or country by way of consent. Typically, statutes command or prohibit something, or declare policy. Statutes are rules made by le ...
interpretation. It is frequently used as a
synonym
A synonym is a word, morpheme, or phrase that means exactly or nearly the same as another word, morpheme, or phrase in a given language. For example, in the English language, the words ''begin'', ''start'', ''commence'', and ''initiate'' are all ...
for
originalism
In the context of United States law, originalism is a theory of constitutional interpretation that asserts that all statements in the Constitution must be interpreted based on the original understanding "at the time it was adopted". This conc ...
; while original intent is indeed one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as
original meaning
{{Judicial interpretation
In the context of United States constitutional interpretation, original meaning is the dominant form of the legal theory of originalism today. It was made popular by Supreme Court Justice Antonin Scalia and contends ...
to distinguish original intent as much as
legal realists do.
Approach
Original intent maintains that in interpreting a text, a
court
A court is any person or institution, often as a government institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance ...
should determine what the authors of the text were trying to achieve, and to give effect to what they ''intended'' the statute to accomplish, the actual ''text'' of the legislation notwithstanding. As in
purposivism
The purposive approach (sometimes referred to as purposivism, purposive construction, purposive interpretation, or the modern principle in construction) is an approach to statutory and constitutional interpretation under which common law courts ...
, tools such as
legislative history
Legislative history includes any of various materials generated in the course of creating legislation, such as committee reports, analysis by legislative counsel, committee hearings, floor debates, and histories of actions taken. Legislative his ...
are often used.
One example of original intent is in Freeman v. Quicken Loans Inc.,
012 012 may refer to:
* Tyrrell 012, a Formula One racing car
* The dialing code for Pretoria
Pretoria () is South Africa's administrative capital, serving as the seat of the executive branch of government, and as the host to all foreign embassie ...
The plaintiffs took out mortgage loans from Quicken Loans. In 2008 they sued Quicken Loans arguing that that respondent had violated Real Estate Settlement Procedures Act (RESPA) Section 2607(b) by charging them fees for which no services were provided. The plaintiffs supported their allegation by referring to the Department of Housing and Urban Development (HUD) policy statement that says that §2607(b) “prohibit
any person from giving or accepting any unearned fees, i.e., charges or payments for real estate settlement services other than for goods or facilities provided or services performed.”
Justice Scalia delivered the opinion of the court that RESPA Section 2607(b) was not violated by referencing that RESPA included a directive that HUD make a report to Congress regarding the need for further legislation in the area, so the original intent was to pass new legislature if it was needed, so the Supreme Court ruled in favor of the defendant.
Problems
Originalist criticisms of original intent proponents (and some proposed rebuttals)
Despite the potential confusion of terms between the original intent and originalism, other schools of originalist thought have been as critical of original intent as non-originalists.
* Original intent presumes that there ''is'' a single, unified intent behind a text. In the case of the United States Constitution, the
Philadelphia Convention
The Constitutional Convention took place in Philadelphia from May 25 to September 17, 1787. Although the convention was intended to revise the league of states and first system of government under the Articles of Confederation, the intention fr ...
was composed of over fifty men, who spent an entire summer compromising and arguing over provisions that were interpreted very differently the moment the Constitution's text became public. It is far from clear, therefore, that those fifty-plus men ''had'' – i.e., agreed upon – a single original intent of the text, or whether their purposes in drafting the Constitution were predicated on personal self-interest. (There is no meaning from an originalist perspective without intent. That is, it is impossible to interpret anything which has no intent, according to originalism. Lawmakers either have no intent, one intent, or multiple intents. But these multiple intents are always consistent, otherwise the law can have no meaning.)
* Even if the convention did have a single, unified intent, it is unclear how it could reliably be determined from two centuries' distance. (That may be, but what
can often be determined is that an interpretation being considered is inconsistent with the original intent even though the exact intent is not known.)
* Many of the clauses of the Constitution are relative, and thus specifically defy any claim that it is possible to divine a single, indisputable outcome to any specific problem or dispute. Key passages in the Constitution were originally cast as flexible evaluations, such as "due process", a phrase that suggests the definitions, requirements and dimensions of court or other governmental proceedings sufficient in any given context to permit citizens to be deprived of their rights were never intended to be fixed forever. (A single indisputable decision is never the outcome using any other jurisprudence. This is an argument against making any decision at all. The judge must merely make his best effort to decide in a manner which is consistent with the intent of the framers or authors of legislation, so far as they can ascertain it.)
* In the case of
US federal law
The law of the United States comprises many levels of codified and uncodified forms of law, of which the most important is the nation's Constitution, which prescribes the foundation of the federal government of the United States, as well as v ...
, law is made by majority vote in two chambers, and is then signed by the
president
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
. Five hundred and thirty-six people are therefore potentially involved in this process, and not one of them needs to share the same intentions as any other of them in order to play their part in ratifying the bill. They need only vote; their vote will count the same if they share the same intent as their colleagues, if they do ''not'' share the intent of their colleagues, and indeed, if they ''have'' no particular intention, and are voting solely because their party whip handed them a note saying "be on the Senate floor at 9:36 pm and say 'Aye'." Their vote will count even if they are falling-down drunk or if they have not even ''read'' the bill under consideration. All of which is to say that giving effect to the intent of the legislature not only presumes that there is a singular intent – no less dubious an assertion where statutes are concerned than where the Constitution is – but the very diversity of these bodies may permit a judge to corrupt their inquiry by finding a floor statement or committee report which suggests an intent that the judge thinks would be a good result. (The intent can be ascertained so far as the authors of the legislation or other less authoritative contemporary sources said what it was)
* Original intent may fall afoul of
formalist theories of law, which explicitly decline interest in how a law is made, an inquiry which is obviously at the core of an original intent inquiry.
* Original intent cannot be reconciled against
textualism
Textualism is a formalist theory in which the interpretation of the law is primarily based on the ordinary meaning of the legal text, where no consideration is given to non-textual sources, such as intention of the law when passed, th ...
. Most of those who are originalists in Constitutional matters are also textualists in statutory matters, and textualism rejects the value of the ''intentions'' of the legislature in passing a text. If one adopts originalism as an "error-correcting lens which fits over textualism to account for the passage of time", one cannot adopt an originalist theory which is incoherent with the underlying textualism.
Other schools of thought
In
Canada
Canada is a country in North America. Its ten provinces and three territories extend from the Atlantic Ocean to the Pacific Ocean and northward into the Arctic Ocean, covering over , making it the world's second-largest country by tot ...
, the predominant school of thought for legal interpretation is the
living tree doctrine
In Canadian law, the living tree doctrine () is a doctrine of constitutional interpretation that says that a constitution is organic and must be read in a broad and progressive manner so as to adapt it to the changing times.
Concept
The livin ...
, under which interpretations can evolve along with the society, to deal with new conditions that were different or did not exist when the
Constitution
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of Legal entity, entity and commonly determine how that entity is to be governed.
When ...
was framed.
See also
*
Judicial activism
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
Notes
# See, e.g., Black's Law Dictionary, 6th. ed., p. 1133
# Beal, ''Cardinal Rules of Legal Interpretation'' p. 257 ("in construing an Act of Parliament where the intention of the legislature is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the legislature which would not answer the purposes of the preamble, or which would go beyond them. To that extent only is the preamble material. – ''Overseers of West Ham v. Iles'' (1883), 8 App. Cas. 386, at pp 388, 389; 52 L. J. Q. B. 650, Lord Blackburn" see also "You cannot resort to the preamble to ascertain the intention of an Act, unless there is an ambiguity in the enacting part." – ''Taylor v. Corporation of Oldham'' (1876), 4 Ch. D. 395, at p. 404, Jessel, M. R. on the same page).
# Zander, ''Law-Making Process'' p. 166 ("It is for the courts to construe
he statute'swords and it is the court's duty in so doing to give effect to the intention of Parliament in using those words").
# See, e.g., Bork, ''The Tempting of America'', p. 144 ("If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time."); Scalia
Speech at CUA, 14 October 1996("You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words.")
# Cf. ''
The Federalist Papers
''The Federalist Papers'' is a collection of 85 articles and essays written by Alexander Hamilton, James Madison, and John Jay under the collective pseudonym "Publius" to promote the ratification of the Constitution of the United States. The co ...
'' and ''
The Complete Anti-Federalist
''The Complete Anti-Federalist'' is a 1981 seven-volume collection of the scattered Anti-Federalist Papers compiled by Herbert Storing and his former student Murray Dry of the University of Chicago, who oversaw the completion of the project afte ...
''
# See Charles Beard's 1913 ''An Economic Interpretation of the Constitution of the United States''.
# In the documentary
Fahrenheit 9/11, for example,
John Conyers
John James Conyers Jr. (May 16, 1929October 27, 2019) was an American politician of the Democratic Party who served as a U.S. representative from Michigan from 1965 to 2017. The districts he represented always included part of western Detroit. ...
a
Democratic member of the
House
A house is a single-unit residential building. It may range in complexity from a rudimentary hut to a complex structure of wood, masonry, concrete or other material, outfitted with plumbing, electrical, and heating, ventilation, and air condi ...
responds incredulously to the filmmaker's inquiry as to whether anyone in Congress ''read'' the
Patriot Act
The USA PATRIOT Act (commonly known as the Patriot Act) was a landmark Act of the United States Congress, signed into law by President George W. Bush. The formal name of the statute is the Uniting and Strengthening America by Providing Appropr ...
, stating "We don't read most of the bills. Do you really know what that would entail if we were to read every bill that we passed?
John Conyers on Reading Bills in CongressFahrenheit 9/11 trailer, 1:00 minute mark
# This is precisely why textualists reject the use of legislative history in determining the meaning of a statute.
# See, e.g., Scalia, ''A Matter of Interpretation''.
{{DEFAULTSORT:Original Intent
Philosophy of law
Intention