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Conflicting Multiple Intended Meanings

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REASONING FROM CANONICAL LEGAL TEXTS
as enough rule makers for passage would have voted for the rule even if it did not apply in the area of disagreement, the core area of overlap-
ping intended meanings is the enacted rule, and the fringes without the backing of sufficient overlapping intended meanings are not within
the rule.
To illustrate this possibility, suppose that groups A and B make up a majority of the legislature, and they enact a rule that A intends to outlaw
X and Y and B intends to outlaw X and Z. If neither A nor B is of sufficient size to constitute a majority of those voting aye, but both A and B would
approve of a rule outlawing only X and not Y or Z, then the rule has a core meaning, namely, that of outlawing X.
In both of the preceding examples, the multimember character of the rule maker does not defeat the attribution of an intended meaning for
the rule, though in the second example the rule is more truncated than many intended. However, a third type of example raises real problems
for intentionalism. Imagine that the legislative body that enacts the “no bears” rule is comprised of three legislators, A, B, and C. C voted against
the “no bears” rule on the ground that it devalued liberty and property relative to physical security. A and B voted for it. A believed that pandas are
bears and intended the rule to cover them. Had pandas been excepted, A would have voted against the rule as unfair to owners of declawed,
defanged, friendly black bears. On the other hand, B believed the rule did not cover pandas, pandas not falling within his intended meaning
of “bears.” Had B believed pandas were included, he would have voted against the rule. “Who could be so cold or unreasonably fearful as to
ban the cute and gentle panda?” A and B did not clarify whether pandas were within the rule before voting.
The results of this disagreement are these. The rule “no bears” admits of two relevant possible meanings: “No bears, including pandas, are
allowed” and “No bears, except pandas, are allowed.” Although the “no bears” rule itself passed two to one, each of its possible meanings would
have been rejected by two-to-one votes. The “no bears” rule has no core of intended meaning that would have been supported by enough
legislators for enactment. Neither legislator has been granted authority by the community to settle by herself what the rule should be.
On our view, the “no bears” rule is only apparently meaningful but not actually so. It is no different from the case where a term in a
rule is ambiguous and has two nonoverlapping definitions, and some
INFELICITIES OF THE INTENDED MEANING
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legislators intend one meaning and the others intend the alternative meaning. Consider: “No canards are allowed in the park,” where C
votes against the rule on libertarian grounds; A votes for it intending one meaning for “canards” – ducks; and B votes for it intending another
meaning – lies. The rule can only mean either “no ducks” or “no lies,” and neither meaning has the backing of a majority.
If we assume that only the intended meaning of a legislative majority regarding what law subjects are obligated to do is authoritative for those
subjects, then in these kinds of cases, an apparently meaningful rule is in reality no more meaningful than potential signs produced accidentally –
that is, without any intention to signify anything. Monkeys on typewrit- ers, cloud formations, and spilled ink may make what might appear to
be words in some natural language. But if the monkeys, the clouds, or the spilled ink produced the shapes c, a, t, it would be odd to ask if that
means a tabby, any feline, or a jazz musician. Although it could mean any of those – indeed, it could mean almost anything given infinite pos-
sible languages with infinite possible ways to signify meanings – without the backing of someone’s intended meanings, those unintended shapes
have no meaning at all. They are evidence of natural processes, but they are not bearers of meaning.
Our pathological account of the “no bears” rule renders it no different from the natural products of typing monkeys, clouds, and spilled ink.
Once we know the intended meanings of A and B, it is a category mistake to ask what the rule means. A’s own rule is meaningful, as is B’s; but their
jointly produced rule is not.

IV. Norms Constraining Intended Meanings as Antidotes to the Foregoing Infelicities


A
.
SUBSTANTIVE CONSTRAINTS

1. Norms for Avoiding Substantively Infelicitous Results


Substantive constraints on rule makers’ determinations, although quite important practically, are relatively unproblematic jurisprudentially. We
are used to the idea of substantive constitutional constraints on legisla- tive, executive, and judicial acts. And as we point out in Chapter 8, there
is nothing fundamentally different about substantive preconstitutional
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REASONING FROM CANONICAL LEGAL TEXTS
constraints on the authors of constitutions, that is, constraints assumed by the populace in its acceptance of the authority of those authors. For
example, as a preconstitutional matter, we could accept a norm that estab- lishes as fundamental law the determinations of the 1787 constitutional
framers, except to the extent that those determinations are substantively absurd, unjust, and so on.
Substantive constraints such as one denying the authority of any legal rule that is absurd or grossly unjust by the interpreter’s standards are
different from epistemological principles that help interpreters discover what the legal rule makers intended ought to be done. That some result
would be absurd or grossly unjust can be evidence – often strong evi- dence – that the rule makers did not intend that result. Nonetheless, as
we have stressed, rule makers can intend absurd or unjust results, even if not under those descriptions. That is, it is possible that: 1 rule makers
wish to require only what is just and not absurd; 2 rule makers intend that X be done; and 3 X is unjust or absurd. Simply put, rule makers can
intend unjust or absurd results because they make mistakes. And a norm that directs interpreters to disregard intended absurd or unjust results
operates as a constraint on the rule makers’ power to determine author- itatively what ought to be done rather than as an aid to understanding
what the rule makers did in fact determine.
Substantive constraints on the rule makers’ determinations can func- tion as absolute limits, much as do ordinary constitutional norms that
limit the authority of governmental actors. Alternatively, they can func- tion as do artificial evidentiary presumptions by directing interpreters
to resolve uncertainties about the rule makers’ intentions in favor of certain outcomes. Thus, if the rule makers’ intentions are not clear, such
substantive norms might direct interpreters to resolve the ambiguity in favor of the result that seems most just or wisest, rather than in favor
of the result best supported by the evidence regarding the rule makers’ intentions, which evidence includes the fact that one result is more just
or wiser than the other.
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Cass Sunstein’s canons of statutory interpretation appear to function as substantively moti- vated, evidentiary presumptions rather than as either norms that define what legislation
“means” or norms that act as absolute limits on the authority of that meaning. Cass R. Sun- stein, Interpreting Statutes in the Regulatory State, 103 Harv. L. Rev. 405 1964. For Sunstein
urges the following canons unless it is clear that the statute “means” something at odds with the

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