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Absurd, Unjust, and Pointless Intended Meanings

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INFELICITIES OF THE INTENDED MEANING
169
legislature’s intended meaning was not the repeal of the entire corpus juris, an absurd and surely unjust result. And it is abundantly clear that
despite its punctuation, the Seventeenth Amendment was intended to apply indefinitely rather than for only six years.
2
And it is arguable that in the Holy Trinity case,
3
the Supreme Court reached the right result in finding that Congress’s intended meaning in proscribing bringing foreign
laborers into the United States did not encompass religious ministers. We are assuming for purposes of argument, and in line with the Court’s
majority, that excluding ministers would have been seen at the time to be a policy error.
Nonetheless, at times even the best of rule makers will make an error in terms of assessing the present facts, forecasting future facts, or
weighing moral considerations. Take another frequently mentioned case, United States v. Locke.
4
In that case a litigant filed a claim on December 31 under a statute that required such claims to be filed “before December
31.” The litigant argued that Congress undoubtedly meant “on or before December 31,” as there was no conceivable reason for it to have chosen
December 30 rather than December 31 as the last day to file. Nonetheless, the Court rejected the litigant’s argument and held the claim not timely
filed. The Court may have erred in terms of Congress’s intended meaning, as the losing party contended. On the other hand, Congress’s intended
meaning may have been to require filings by December 30, although, if confronted with this issue, Congress might have admitted that it was
pointless or wrong for it to have so intended.
Or, to take our hypothetical “no bears” rule from the preceding chapter, it may be the case that the rule maker did not realize that
pandas were completely harmless; had he realized that, he would have exempted them from his rule. Nonetheless, he might say that although
he intended to include pandas within his rule, he was mistaken to have done so. That is, his “no bears” rule, which was intended to include
pandas, is inferior to a “no bears except pandas” rule. The rule maker erred by intending to include pandas. This type of error – the infelicitous
2
See U.S. Const. amend. XVII: “The Senate of the United States shall be composed of two Senators from each state, elected by the people thereof, for six years. . . .”
3
Church of the Holy Trinity v. United States, 143 U.S. 457 1892.
4
471 U.S. 84, 93–96 1985.
170
REASONING FROM CANONICAL LEGAL TEXTS
but intended rule – is different from a felicitous intended rule that has infelicitous applications; for, as we have stressed throughout, almost any
rule will have some infelicitous applications or omissions that cannot be eliminated without undermining the value of the rule qua rule.
5
Infelicities – absurd, unjust, or pointless rules – are ineliminable, given human fallibility. Equating the proper interpretation of canonical
legal texts with the intended meaning of the authors of those texts – the rule makers – surely leaves the door open to interpretations that result
in absurdity and injustice. Ultimately, however, as we have consistently argued, given the settlement function of canonical legal texts, the possi-
bility of such substantive infelicities is not a point against our approach to interpretation but a point in its favor.

II. Opaque Intended Meanings


Searching for the rule maker’s intended meaning may reveal another type of infelicity. As we argued in the preceding chapter, there will be occasions
when even the rule maker himself will not be sure what meaning he intended. We gave the example of a newly discovered species of bear that
is tiny and docile, and we said that the rule maker might himself be quite uncertain whether he did or did not intend to include such a species
in his “no bears” rule. When the interpreter comes to a case where the rule maker’s intent is indeterminate to everyone, including even the rule
maker, interpretation of the rule by reference to its author’s intended meaning yields no answer. In a sense, the rule does not cover the case,
either to include it within the rule’s application or to exclude it.
When the rule maker’s intended meaning is opaque in this way, what should the interpreter do? One thing is clear: whatever the interpreter
does to resolve the case, it will not be through interpretation. Beyond that, there are essentially two options, depending on the authority of the
interpreter. If the interpreter has lawmaking authority, she can construct a rule to cover the case, presumably one that is normatively attractive
5
Thus, if the “no bears except pandas” rule resulted in too many errors in its application relative to the “no bears” rule – perhaps because too many nonpandas would be taken for pandas –
the latter might be the better rule despite pandas’ not coming within its rationale.
INFELICITIES OF THE INTENDED MEANING
171
when conjoined with the remainder of the primary rule maker’s rule. If the interpreter has no lawmaking authority, then the case is governed
by status quo ante legal rules. If the “no bears” rule were a prohibitory exception to a general permission to keep animals near private resi-
dences, the case of the questionable “bear” should be resolved in favor of a permission.

III. Conflicting Multiple Intended Meanings


Perhaps one of the most frequent criticisms of intentionalist theories of legal interpretation such as ours is that they cannot be applied to
multimember rule-making bodies such as legislatures, administrative boards, and appellate courts. Individuals have states of mind such as
intentions; groups do not. So goes the critical refrain.
We agree that groups do not have states of mind qua groups. And we do not posit the existence of group intentions beyond the intended
meanings of the individuals who compose the group. Nor do we deny that those individual intended meanings can differ from person to person
within the group and can in some cases conflict. Finally, we do not deny that these facts will create difficulties for intentionalist interpretation
in some cases. What we do deny is that such difficulties should cause us to reject intentionalism. Instead, what they suggest is that, on some
occasions, what appears to be a meaningful law because its text seems to parse is actually meaningless.
To begin with, in many cases, the rule makers who possess the author- ity to create a binding legal rule – say, the legislators necessary to pass a
law usually a majority of the legislature, but occasionally a supermajor- ity – will all intend the same meaning for the rule they enact. In other
words, over the range of real or hypothetical applications of the rule, felicitous and infelicitous, if asked how the rule was intended to apply,
each member of the majority sufficient to pass the rule would give the very same answer.
In a large number of other cases, individual members of the majority would agree in terms of intended meaning in most real and hypotheti-
cal applications but would disagree about a few such applications. In the cases of disagreement, there is no univocal intended meaning. But so long

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