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Levels of Generality of Rule Makers’ Intentions

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Some believe that this question can be answered only by reference to an interpretive norm chosen because of its anticipated good results,
and that the question cannot be answered in the absence of such a norm. They believe that when the intentions at the various levels of generality of
description are inconsistent with each other, there is no fact of the matter about what the rule makers intended. What they intended is rather the
product of whatever norm selects the appropriate level of generality at which to characterize their intention.
We believe that view to be mistaken, as we made clear in the pre- ceding chapter.
A norm that directs interpreters to correct rule makers’ mistakes regarding how their actual intended meanings square with their
more general purposes is one that threatens completely to undermine the rule makers’ role of determining what ought to be done. Because
rule makers always intend to achieve Goodness and Justice – to “do the right thing” – if they are acting legitimately, the interpreter can sub-
stitute his own views about what Goodness and Justice require for any specific intended meaning of the rule makers and still claim to be hon-
oring their more general intent. For the interpreter will undoubtedly believe that, had the rule makers been disabused of all their mistakes of
fact, mistakes of means-end reasoning, and mistakes in reasoning about values, they would have enacted intended to mean what the interpreter
would have enacted intended to mean. In effect, a norm allowing the
For a different constitutional implication of the various levels of generality of the inten- tions of authorities, see Note, Legislative Purpose, Rationality, and Equal Protection, 82 Yale
L.J. 123 1972.
Perhaps the foremost proponent of the view that what authorities intend is not a matter of fact but rather the product of normative argument is Ronald Dworkin. See, e.g., Ronald Dworkin,
Bork’s Jurisprudence, 57 U. of Chi. L. Rev. 657, 663–64 1990. This is also the official view of Cass Sunstein, though he equivocates at points. Cf. Sunstein, supra, n. 6, at 10 “Statutes
do not have pre-interpretive meanings, and the process of interpretation requires courts to draw on background principles”, with id. at 423, 434, 450, 456 implying that statutes
do have meanings that are independent of background principles. For a view similar to Sunstein’s official view, see Note, Figuring the Law: Holism and Tropological Inference in Legal
Interpretation, 97 Yale L.J. 823 1988.
For a good statement of the opposing view, the one that I now endorse, see Paul Campos, Against Constitutional Theory, 4 Yale J. L. Human. 279, 281–82 arguing that interpretation
is an empirical matter, not a theoretical one, because it seeks to uncover the “fact” of the author’s intention. See also Paul Campos, That Obscure Object of Desire: Hermeneutics and
the Autonomous Legal Text, 77 Minn. L. Rev. 1065, 1092–93 1993.
See Chapter 5 at notes 25–44.
interpreter to disregard the more specific intended meanings in favor of more general purposes will convert the interpreter into the rule maker
and, of course, make the interpreter’s determination subject to being corrected by a subsequent interpreter, and so on.
As we said earlier, in our discussion of Lessig’s theory of interpretation,
if the rule makers’ mistakes are always to be corrected by interpreters, then there will be no
rule makers: if the interpreters are tantamount to the rule makers, there can never be rule makers for interpreters to interpret.
One might reply that although a norm directing interpreters to fol- low the rule maker’s most general purposes would undermine that rule
maker’s role, a norm directing interpreters to follow the purposes char- acterized at some intermediate level of generality would not undermine
that role. The interpreters could correct the rule maker’s specific intended meaning by reference to somewhat more general purposes, but not by
reference to Goodness and Justice.
There are two problems with such a response, however. First, to speak of levels of generality of purpose as if there were a discrete number of
ways the rule maker’s purposes could be described is in some ways quite misleading. There is no one way to describe the levels of generality or
to count them. Thus, it is impossible for a norm to specify the pre- cise level of generality interpreters should look to in following the rule
maker’s purposes.
Second, and more important, the choice to correct the rule maker’s specific intended meaning in light of the rule maker’s more general pur-
poses but not in light of the rule maker’s most general ones seems quite arbitrary. In some cases, for example, the rule maker might specifically
intend a meaning that is inconsistent with a more general purpose she has, but which is in fact consistent with Goodness and Justice. In such a
case she has done the right thing, although she has made two mistakes in reasoning from means to ends that happily cancel each other. The
hypothesized norm directing interpreters to follow the rule maker’s pur- poses characterized at an intermediate level of generality would result in
See Richard A. Epstein, A Common Lawyer Looks at Constitutional Interpretation, 72 Boston L. Rev. 699, 703 1992. “The critical point is that theories of . . . interpretation are not theories
of substantive transformation. No one should be able to win through interpretation what was lost in the initial drafting.”
See Chapter 5 at notes 45–64.
the interpreters acting contrary to Goodness and Justice when the rule maker, having made some lucky mistakes, actually intends a policy that
is consistent with Goodness and Justice.
Nonetheless, if there were no fact of the matter regarding what the rule maker intended in the sense of at what level of generality to characterize
that intent, we would have no choice but to construct a norm that would prescribe the level of generality for interpreters to follow.
In our view, however, there is a fact of the matter. For example, there is a fact of the
matter by virtue of which it is true that the rule maker did not intend to proscribe declawed, defanged pet bears escaping a fire but did intend
to proscribe pandas even if that turns out to be a mistaken weighing of liberty and security. If we are correct, then the role of rule-making
authorities demands that that fact of the matter be heeded.
This facticity about what the rule makers determined ought to be done in the face of the various levels of generality at which their purposes could
be described is what makes formal legal rules – rules that are opaque to their background purposes – possible. If there is a fact of the matter
about what the rule makers determined ought to be done, then that fact, possibly as filtered through norms of form and norms for failed laws,
should guide interpreters. Otherwise, interpreters are not interpreting, and the role of the rule-making authorities does not exist.
Thus, we believe that despite their having purposes of varying degrees of generality that can come apart, the rule makers’ intended meanings
are not a function of the interpreter’s choice. Rather, as we argued in the preceding chapter, there is a fact of the matter regarding intended
meaning; and the rule makers’ intended meaning is, obviously, a function of the rule makers’ choice, not the interpreter’s. Moreover, there needs
always to be the possibility for intended meaning and more general purposes to come apart in order for there to be determinate rules that
perform the morally demanded settlement function.
It is always possible that the search for the rule maker’s intended mean- ing will result in various infelicities. And it is always possible that
Of course, if there were no fact of the matter regarding the level of generality of the authorities’ intentions, there might well not be a fact of the matter regarding the words or even the
language through which they intended to communicate, which would leave interpretation with nothing to characterize at any level of generality.
See Chapter 1 infra.
higher-order norms will help minimize or negate such infelicities. Sub- stantive higher-order norms can combat substantive infelicities, such
as rules whose intended meanings are absurd, unjust, or obsolete. The higher-order norms could themselves be determinate rules: for example,
“No statute shall be effective one hundred years after enactment.” Or they could be standards: for example, “No statute shall be given effect
if it is absurd, unjust, or obsolete.” In the latter case, the higher-order norm delegates decision-making authority to some other institution –
the interpreting one – to determine what is absurd, unjust, and not obso- lete. The attempted settlement by the body whose rule is deemed absurd,
unjust, or obsolete will be undone. The interpreting institution may itself at least partially settle the meaning of absurd, unjust, or obsolete, or it
may just leave the meanings of those standards unsettled except insofar as the particular rule is concerned.
Procedural higher-order norms can deal with rules that have no intended meaning “failed laws” or that have an inaccessible meaning.
Application of these higher-order norms is not interpretation of the rules. Interpretation is the recovery of the rule maker’s intended meaning.
Higher-order procedural norms do not aid in that endeavor and are not meant to do so. They direct “interpreters” to construct rules out
of materials that the rule makers have provided. If, in the example of “No canards are allowed in the park,” the interpreter treats the rule
as outlawing ducks but not lies, or vice versa, or both ducks and lies, that is not because any of those is the rule’s intended meaning. And
if, in the case of a statute written in a private code, a higher norm directs the “interpreter” to assume the statute’s intended meaning is
what its intended meaning would be were the legislators to intend the first meaning given in a standard English dictionary of their time, then
the meaning that the “interpreter” will assign is not the statute’s intended meaning but a meaning that is the product of the marks on the page that
the legislature produced coupled with a higher-order norm.
In the next chapter, when we examine textualism, we argue that norms of form such as the hypothetical norm “read as if in standard
As we point out in Chapter 8, however, standards that do not constrain their delegations by cabining them with determinate rules threaten to undermine completely the settlement
function of law. Therefore, any delegation to a body such as a court to set aside rules on the grounds of their injustice is usually read to be hemmed in by rules that themselves cannot
be set aside on such grounds.
English” are less attractive than they might appear. The other higher- order norms we have mentioned may or may not be worth having.
We take no position on those. But even if they are, neither they nor the infelicities they are meant to address cast any doubt on our central claim –
namely, that interpretation of legal rules is a search for the rule maker’s intended meaning and is no different from the interpretation of ordinary
demands and requests.
Again, we point out that these higher-order norms mean what their authors intend them to mean, whether their authors are a higher-order rule-making body, such as constitutional
ratifiers, or the people themselves acting through acceptance of preconstitutional norms.
Nonintentionalist Interpretation
We have argued to this point that the interpretation of canonical legal texts, whether those texts are authored by individual lawmakers or by
multimember ones, is at bottom no different from interpreting demands or requests in other domains of life. Requests from Mom or the kids,
memos from the boss, and indeed all communications that we take to be normative boil down to what the language in its context reveals about
what the speaker intended for us to do. In other words, our question is always, What meaning did the speaker or speakers intend? And, we
argued, given the role of legal authorities to settle what ought to be done and to do so with expertise and, in the case of legislatures, democratic
warrant, the interpretation of legal rules should also be viewed as the search for the speaker’s intended meaning.
Andrei Marmor, Interpretation and Legal Theory 132–39 2d ed., Oxford: Hart Pub. 2005.
If legal reasoning in the domain of interpreting canonical legal texts is to be “special” – a craft that only legal training and practice can
provide – then the intentionalist position we endorse must be rejected. We are all “trained” to practice that, as all of us engage in it all the time.
And, indeed, there are challengers to intentionalism in the legal literature. In this chapter we take up the two principal challengers: textualism and
dynamic interpretation.

I. Textualism

Textualism is actually a family of theories of legal interpretation. What unites them is their stress on the primacy of the text of the constitu-
tion, statute, administrative rule, or judicial precedent in question. For the textualist, the text’s meaning always trumps the “private” intended
meaning of the text’s authors.
Our reply to the textualists comes in two stages. In stage one, extend- ing the argument of Chapter 5, we show the impossibility of “pure”
textualism, meaning the total primacy of text over authorial intent. In stage two, we show that impure textualists, the only possible kind, are
either those who would construct – and hence reauthor – legal rules out of raw materials provided by the original authors of the legal texts, or
those who are intentionalists but who impose limits on the evidence of intent that interpreters may consult.
Self-described “textualists” hold a variety of positions on how one ought to interpret legal texts. Indeed, there does not appear to be any canon-
ical description of textualism. At most, what unites textualists is their stated refusal to consider the intentions of the laws’ authors to determine
what the laws mean. We shall argue that such intention-free textualism is a conceptual impossibility – that authorial intentions constitute the
meanings of texts. If we are right, a charitable reading of textualists’ statements would not attribute intention-free textualism to them. Nev-
ertheless, at times, self-described textualists say things that appear to endorse intention-free textualism.
Consider the most famous modern textualist, Justice Antonin Scalia, and his discussion of textualism in A Matter of Interpretation.
Justice Scalia’s version of textualism seems to have three principal tenets. The
first is that a textualist searches for an “objectified” intent – the intent an idealized reader who knows the entire corpus juris would gather
from the particular statute.
The second is that textualists do not seek to enforce the “subjective intent of the enacting legislature.”
The third is that legislative history should not be used as “an authoritative indication
of a statute’s meaning.”
The first is the most important principle, as the other two follow from it. The reason for searching for an “objectified” intent is “that it
is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what
the lawgiver meant, rather than by what the lawgiver promulgated.”
After all, “[i]t is the law that governs, not the intent of the lawgiver.”
Legislators may intend whatever they want, “but it is only the laws that they enact which bind us.”
To govern by “unexpressed intent” is tyran- nical in the same sense that Nero’s posting of laws high up a pillar was
so: people will not be able to make sense of the law if they try to discern the subjective intent of the legislature.
Justice Scalia derives the second principle from an examination of what judges actually do in practice. If the intent of the legislature mat-
tered, then judges would not apply the rule that “when the text of a statute is clear, that is the end of the matter.”
Likewise, if legislative intent were the touchstone, judges would not assume that the enacting legisla-
ture was aware of all existing laws. Instead, they would pay attention to the text and the legislative history of the particular statute in isolation,
for that is all the legislators likely had in mind.
Antonin Scalia, A Matter of Interpretation: Federal Courts and the Law Princeton: Princeton University Press 1997.
Id. at 17.
Id. at 29–30.
Id. at 17.
Id. at 16.
Id. at 16–17.

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