THE NATURE OF LEGISLATIVE INTENT. Richard Ekins. (1) Oxford: Oxford University Press. 2012. Pp. xiv + 303. $70.00 (cloth).
For generations intentionalism was the touchstone of statutory interpretation among common law jurists (pp. 1-3). The thrust of intentionalism is that the original intent of the legislature is the core of the statute's meaning and the key to its application (p. 2). (3) In recent decades, however, this approach has come under withering attack from scholars and judges and fallen into relative disfavor, particularly in the United States (p. 3).
Although many courts continue to pay rhetorical fealty to intent and to cite to legislative history, the intellectual energy among dedicated originalist scholars and jurists has moved toward textualist interpretation. According to textualists, a statute means what its words say, and those words are to be understood only by reference to what the community of people who voted on it would reasonably have understood it to mean at the time it was enacted. (4) The move from intentionalism to textualism in the context of statutory interpretation thus parallels the relative decline of original intent jurisprudence and the rise of original public meaning jurisprudence in the constitutional context.
Comes now Richard Ekins, in a book adapted from his Oxford doctoral thesis, to rehabilitate intentionalism. Grounded in political philosophy, language theory, and the characteristics of group dynamics and decision-making, Ekins maintains that there is such a thing as legislative intent, that it is discoverable, and that the job of a judicial interpreter is to give effect to it.
Scholarship may be judged on a variety of metrics. Does an article or book provoke further thought and inquiry? Does it teach the reader something new? Does it contribute to the further development of ideas? Is it intellectually rigorous? On any of these metrics, The Nature of Legislative Intent is an astonishing success and required reading for any student of statutory interpretation.
But there is another metric according to which legal scholarship may--should!--be judged. Can it change how legal actors behave in the real world? I do not mean, of course, to endorse the view of our current Chief Justice that most legal scholarship is useless because judges pay no attention to it. (5) What judges choose to read is irrelevant as an assessment of the quality and potential contribution of the work. Instead, I mean to ask whether the work, on its own terms, offers some practical upshot. Thus, if a judge read it, was convinced by its arguments, and inclined to heed its advice, could she change her behavior in any way?
By this measure--one that is surely controversial, but at least fair in assessing a work that the author offers as having practical value--I'm afraid that this book is something of a disappointment. In the end, the intentionalism that Ekins offers, namely, intentionalism without legislative history, has precious little to distinguish it from the textualism practiced in the United States. Any American judge who might find it persuasive is already doing what Ekins wants under the label of textualism; and any judge who isn't engaged in textualism will not be convinced by his case for intentionalism.
In this essay, I first identify the common critiques of intentionalism. I then summarize Ekins' philosophical defense of and affirmative case for intentionalism and review his proposed interpretive methodology. Finally, I show why this version of intentionalism is, as a practical matter, more or less the same as Justice Scalia's intentionalism while at the same time unpersuasive to non-textualists.
THE DECLINE OF INTENTIONALISM
Intentionalism is likely the original theory of legal interpretation. As Ekins notes, its pedigree can be traced far back in history, at least to Aquinas, through Hobbes, and to Blackstone (pp. 1-2). Treatises and judicial opinions throughout common law countries adopted its central tenets (pp. 2-3). In American jurisprudence, intentionalism found broad acceptance and expressed itself in opinions that carefully scrutinized statutes' legislative history to locate the legislature's actual or constructive intent as to an ambiguous provision's meaning. (6) The idea was that the best way to determine the legislature's intent was to see what the legislators told us and each other they meant. (7)
Over time, a loose hierarchy developed among sources of legislative history. Committee reports are the gold standard, because they are at once the most authoritative (the legislators most familiar with the bill, or rather their staffers, produce the legislative history) and the most accessible to other members of the legislature. Next on down the line are statements by drafters and supporters of the bill, which other Members of Congress may view as authoritative but are less accessible than committee reports. And so on. (8)
This approach has long had its detractors, (9) but over the past three decades in particular it has fallen into disfavor as a result of a sustained attack led by textualists. There are at least eight critiques of classical intentionalism as practiced by American judges:
There is no such thing as legislative intent because a multi-member body can never have a single intent (pp. 4-5);
A legislature in particular cannot have any intent because members...