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What Is the State of Mind That Constitutes the Lawmaker’s Intended Meaning?

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REASONING FROM CANONICAL LEGAL TEXTS
limited nature of the mental states in question, we do believe that the intended meanings extend well beyond the particular images contained
in those mental states. The lawmaker may never have seen or even heard of Malaysian sun bears, for example, or spectacled bears. Nevertheless, both
he and his audience can be quite certain that he intended to include them within his rule’s prohibition. This does not mean that we are concerned
with utterance meanings rather than intended ones. The lawmaker may have used the word “cat,” which we know he uses when he means “bear.”
Whether or not he uses the word “bear,” if his intended meaning is “bears,” it probably covers bears that he has never heard of, much less
pictured, at the time of enactment.
Moreover, sometimes an example comes within the intended mean- ing even if it does not come within the purpose that the rule is meant
to accomplish.
21
For instance, suppose a property owner possesses a declawed, defanged, quite gentle, and much-beloved-by-all-children
black bear, which he keeps in a very secure cage. This bear presents no danger whatsoever to adjoining property owners. Indeed, it actually
benefits them. Yet for all that, it may be true that this bear falls within the intended prohibition for either of two reasons. Confronted with the
situation, the lawmaker might think, “I did intend to prohibit all bears, but I was mistaken not to have carved out an exception for bears like this
one.” Alternatively, the lawmaker might think, “I intended a broad and blunt rule prohibiting all bears, and I was well aware that there would be
cases like this under the rule. I resisted making such an exception in favor of determinateness, learnability, and so forth, believing that the benefits
of the broad, blunt rule would outweigh the costs presented by instances such as this one.”
Both of these examples illustrate the possibility that a lawmaker’s intended meaning can extend to things that he did not envision at the
21
See, e.g., Kent Greenawalt, The Nature of Rules and the Meaning of Meaning, 72 Notre Dame L. Rev. 1449, 1462–68 1997 arguing that having context and purpose supply meaning to rules
does not undermine their ruleness; Greenawalt, supra note 13, at 40–43, 66, 69 same; Tom D. Campbell, The Legal Theory of Ethical Positivism 141–42 Aldershot: Dartmouth Publishing
1996 same. See also Goldsworthy, supra note 18, at 454–55 giving examples of cases where purpose behind a rule contributes to a rule’s meaning; Frederick Schauer, Formalism, 97
Yale L.J. 509, 526–28 1988 showing how a rule’s meaning can be a function of its purpose without being reducible to or necessarily consistent with that purpose.
INTERPRETING STATUTES AND OTHER POSITED RULES
143
moment of enactment and that also do not fall within the purpose his rule is designed to accomplish. Moreover, a lawmaker’s intended
meaning can be completely at odds with his purpose for enacting the rule. Perhaps, for some reason, allowing landowners to possess bears
would actually increase the safety and welfare of adjoining landowners. They may, for example, be able to take effective and relatively costless
precautions against bear attacks and at the same time learn how to profit from bears’ proximity; or statistics may show that crime decreases in
neighborhoods with bears. It may turn out then that prohibiting bears within one thousand feet of residences is a colossal legislative mistake.
Nonetheless, it may be quite clear to both the lawmaker and his audience that such a prohibition, however ill-advised, was his intended meaning.
22
It is, therefore, the meaning of the rule. On the other hand, there may be some cases of “bears within one
thousand feet” that the lawmaker clearly did not intend to include within his prohibition. Suppose our hypothetical landowner with the declawed,
defanged, lovable black bear is faced with an oncoming forest fire or flood and escapes with his pet bear by a route on his property within one
thousand feet of a neighbor. The lawmaker may very well say, correctly, “I didn’t intend my prohibition to apply to that case, and it would be absurd
for anyone to imagine I did.”
23
It follows that the case is not covered by
22
See Alexander and Sherwin, supra note 1, at 115; Alexander, supra note 1, at 376 request for curry powder not satisfied by alfalfa sprouts even if it is true the purpose behind the request
was, at the most general level, well-being, and that in the long term more well-being will be derived from developing a preference for the latter over the former. See also Alexander and
Prakash, supra note 1, at 994–95 pointing out that the intended meaning of a directive can diverge from what its author intended it to accomplish; Mom may believe the ottoman –
her “autobahn” – will make her comfortable when it in fact will not do so, but it is still her intended meaning that the ottoman be pulled next to the sofa.
23
See Alexander and Sherwin, supra note 1, at 114–15. For some other examples like this in literature, see Cass R. Sunstein, One Case at a Time 219–21 Cambridge, Mass.: Harvard
University Press 1999 discussing the case of Church of the Holy Trinity v. United States, 143 U.S. 457 [1892], in which the question was whether a ban on the importation of laborers
included a ban on a church’s hiring a minister from abroad, and concluding that there are times when the context of legislation reveals that some literal application was not intended;
Kent Greenawalt, Law and Objectivity 16–18 New York: Oxford University Press 1992 dis- cussing Sam’s [a superior’s] request to Beth [a subordinate] to shut Sam’s office door, and
suggesting that the request does not require shutting the door in the face of the company president, who, unbeknownst to Sam, is about to enter Sam’s office; Ludwig Wittgenstein,
Philosophical Investigations
§ 203 Oxford: Blackwell 1997 “Someone says to me: ‘Shew the children a game.’ I teach them gaming with dice, and the other says, ‘I didn’t mean that
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REASONING FROM CANONICAL LEGAL TEXTS
the rule. Likewise, Mom might say the same if the question is whether, in order to comply with her request, Rover should be put out on a cold
evening if he is suffering from pneumonia. He should not.
Finally, however odd this may seem, there may be some cases where the lawmaker himself will not be able to determine what he intended.
Suppose the lawmaker had no idea the gentle panda was indeed a species of bear. Or suppose a new bear species is discovered whose members
are the size of a Lhasa Apso and quite shy and docile. The lawmaker himself might be quite perplexed over whether he did or did not prohibit
possession of that species of bear.
24
The line between indeterminate rules – where the rule maker himself would be perplexed over what
meaning he intended – and determinate but infelicitous rules [rules the rule maker would regret] will itself be an uncertain line. Nonetheless,
sort of game.’ Must the exclusion of the game with dice have come before his mind when he gave me the order to make this last statement true?”; Bernard W. Bell, “No Motor Vehicles
in the Park”: Reviving the Hart-Fuller Debate to Introduce Statutory Construction, 48 J. Legal Educ. 88, 97 1998 giving the example of a “No vehicles in the park” rule as applied to an
ambulance that enters to pick up a heart attack victim; William N. Eskridge, Textualism, The Unknown Ideal?, 96 Mich. L. Rev. 1509, 1553 1998 arguing that the NBA rule forbidding
players from leaving the bench during a fight should not be read to forbid a player’s going to the restroom or coming to the aid of a player about to be killed; Kent Greenawalt, From
the Bottom Up, 82 Corn. L. Rev. 994 1997 arguing that an order from a basketball coach to his team, which has a three-point lead with twenty-four seconds remaining, not to take a
shot, but to try to run out the clock, does not mean that if a player finds herself unguarded under the basket, she cannot take a shot that she is virtually certain to make; Alexander,
supra note 1, at 376–77 giving example of handing a friend your checkbook and asking him to purchase some curry powder for a dinner party you are giving, only to have him return
with a bottle of curry powder and a 2,500 deduction from your checkbook occasioned by curry powder’s being in short supply; Goldsworthy, supra note 13, at 454–55 discussing
such cases as the ordering of a hamburger in a restaurant, in response to which the waiter brings a hamburger encased in a cube of hard plastic; id. at 456–57 discussing how certain
meanings are implied in statements on the basis of context and background assumptions, which meanings are different from the more general worldview implied by statements.
For some other examples of cases where the rule maker might plausibly say that his rule does not apply, see Kent Greenawalt, From the Bottom Up, supra. He gives the example of an
easy slam dunk that a basketball player takes after being told by the coach that in order to protect a three-point lead in the last seconds of the game, the team should dribble out the
clock and not shoot. Greenawalt argues that the “don’t shoot” instruction can plausibly be understood as inapplicable to the uncontested slam dunk.
24
See Cass R. Sunstein, Justice Scalia’s Formalism, 107 Yale L.J. 529, 544 1997 “Because of the inevitable limitations of human foresight, even the most carefully chosen words can
become unclear because and not in spite of their generality”. Sunstein cites H. L. A. Hart’s famous passage in which Hart attributes penumbral uncertainty in the meaning of all rules
to “relative indeterminacy of aim.” H. L. A. Hart, The Concept of Law 125 Oxford: Clarendon Press 1961.
INTERPRETING STATUTES AND OTHER POSITED RULES
145
over a substantial range of cases, the rule maker’s intended meaning will be determinate even if infelicitous.
We believe it is possible for a rule subject to advert in a limited way to the rule maker’s purposes in order to grasp what the latter intended to do
by enacting a rule, without at the same time equating the rule’s meaning with those purposes. Nevertheless, we briefly take up several analyses that
raise questions about this distinction and hence about whether intent can serve as the basis of determinate rules.

III. Some Challenges to the Determinacy of Intended Meanings


A
.
THE MULTIPLICITY OF THE RULE MAKER

S INTENTIONS
The first analysis of the determinacy of intended meanings that we con- sider, which comes from Gregory Bassham, suggests that when the rule
maker issues his rule “No bears are allowed within one thousand feet of private residences,” he has not one intention regarding what ought
to be done, but several. Moreover, these various intentions can con- flict.
25
Bassham distinguishes between, on the one hand, the rule-making authority’s beliefs about the binding effects of what he has authored and,
on the other hand, other changes in the world that the rule maker expects or hopes will be accomplished by those binding effects.
26
For example, suppose that the rule maker believes that if the “No bear” rule is enacted
and enforced, land values will increase, or the rule maker will be reelected as the authority. Neither of these beliefs, even if mistaken, affects the
binding effects of the rule maker’s rule.
27
Within the former category of rule maker’s beliefs – his beliefs about the legally binding effects of his enactment – Bassham distinguishes
among scope beliefs, counterfactual scope beliefs, and semantic inten- tions.
28
Scope beliefs are the actual occurrent beliefs that the rule maker
25
The text from this point through the paragraph after note 42 is taken substantially from Alexander, supra note 1, at 367–75.
26
Gregory Bassham, Original Intent and the Constitution 28–34, 69–71 Savage, Md.: Rowman Littlefield 1992.
27
Bassham calls these latter intentions nonbinding intentions and includes among them such things as the authorities’ intentions regarding their own authority. Id.
28
Id. at 29.
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REASONING FROM CANONICAL LEGAL TEXTS
holds at the time of enactment about the legally binding effects of that enactment.
29
Put differently, they are the rule maker’s actual beliefs about what changes he has adverted to and determined should be implemented.
“No ferocious grizzly bears . . .” Counterfactual scope beliefs are the beliefs about such binding effects
that the rule maker would have held, had he considered the particular application of his text in question.
30
“No Malaysian sun bears . . .” Bassham gives as an example of a counterfactual scope belief the belief the
framers of the United States Constitution would have held on whether skyjacking is an “infamous” crime within the meaning of the grand
jury clause of the Fifth Amendment.
31
Obviously, the framers would not have had actual beliefs about skyjacking in 1791. Nonetheless, Bassham
considers it meaningful and sensible to ask what beliefs they would have held on the legal status of skyjacking under the Fifth Amendment, had
they considered skyjacking. Strict intentionalists are, for Bassham, all who would interpret legal texts solely according to scope and counterfactual
scope beliefs, although the strictest of strict intentionalists look only to scope beliefs.
The rule makers’ semantic intentions are their intentions regarding the meaning of their legal texts.
32
Now this in itself is quite unhelpful because scope beliefs and counterfactual beliefs could be the exclusive
determinants of the texts’ meaning, in which case semantic intentions would merely be intentions to effectuate scope and counterfactual scope
beliefs. Bassham points out, however, that a legislature that bans toxic substances may have in mind a particular concept of toxicity, or a par-
ticular definition or description of toxicity – semantic intentions – as well as some particular examples of toxic substances that they believed
they were banning scope beliefs.
33
It may turn out that the particular examples of toxic substances may not in fact be toxic according to the
contemplated definition of toxicity. Or it may turn out that both the particular examples of toxic substances and the contemplated definition
29
Id.
30
Id.
31
Id.
32
Id.
33
Id. at 32.

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