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Why Judges Should Forget About Finding Legislative Intent


One of the most important achievements of Supreme Court Justice Antonin Scalia’s career is the emergence of textualism as an accepted method of statutory interpretation. The basic concept is fairly simple: judges should seek to interpret statutes based on a plain reading of the text.

If that fails, judges can look to the words set forth in the full statute for guidance. Finally, judges can compare the words used in one statute to those used in another to help find the correct meaning. However, the touchstone of the textualist method is that courts should adhere to the “plain meaning” of the statute. A corollary is that judges should not go searching for meaning in the legislative history (i.e., legislative intent).

I have been a member of the Federalist Society since law school and a fan of Justice Scalia for even longer, so I have always been an adherent to the textualist approach. However, it wasn’t until I had the opportunity to serve in the Wisconsin legislature that I realized just how severely flawed the entire idea of looking to legislative history for guidance in statutory interpretation really is.

There Is No Such Thing as Legislative Intent

Before I served in the legislature, my understanding was always theoretical. The reasons most cited for ignoring legislative history are: (i) it violates bicameralism, since emphasizing a committee report or floor debate from one house necessarily diminishes the role of the other house; (ii) it violates the presentment clause; (iii) extrinsic evidence can easily be manipulated by staff placing material into committee reports; and (iv) it opens the door to judicial activism, because if a judge looks hard enough, legislative history can always be found to support her preferred outcome.

I would like to add one more to the list. Having now completed my first term in the legislature, I can say with some confidence that there is no such thing as legislative intent (finding legislative intent is, of course, the goal of searching legislative history). In fact, I have come to believe the very idea of “legislative intent” is absurd. Here’s why.

In Wisconsin, for a bill to become law, majorities in the 99-member Assembly and the 33-member Senate must pass the bill, and then the governor must sign it. This means, at a minimum, 68 different people will need to vote in favor of (and sign) the bill.

The notion that these 68 unique individuals share the same intent is ridiculous on its face. Of those 68, some will have little knowledge of what the bill does, some will flat-out oppose it but vote in favor because it’s popular back home, some will vote for it due to pressure from some special interest group, some will simply not care and won’t want to rock the boat, and some, of course, will share a common objective.

However, even those who share a common objective may not make that objective abundantly clear or even shield the true objective behind rhetoric focusing on a more politically popular objective.

Let’s Game This Out

Here’s a hypothetical to illustrate the point: State Legislator A is a member of the majority party in a unified (full control by one party) state government. Legislator A proposes a bill. Legislator B, also a member of the majority party, hates this bill, but does not have the votes to kill it. Instead of simply voting no, Legislator B attempts to work with Legislator A to amend the bill to make it less bad.

Legislator A agrees to change the bill, but only if Legislator B agrees to vote yes. This is the normal give and take of the legislative process. Legislator B is now going to vote yes on the bill, even though she still does not really like it. So what is the legislative intent of Legislator B? Certainly it was not the same as Legislator A’s. You can see through this hypothetical, how searching for the legislative intent can be a fool’s errand.

Justice Scalia resolved this problem by panning the use of legislative history in statutory interpretation. For example, in Graham County Soil & Water Conserv. Dist. V. U.S. ex rel Wilson, Scalia said, “The Constitution gives legal effect to the ‘laws’ Congress enacts not the objectives its Members aimed to achieve in voting for them.”

I fervently hope President Trump and his advisors carefully examine each candidate for the Supreme Court and lower federal courts and choose those who are most inclined to follow Justice Scalia’s textualist lead. While there are some very good choices, one of the best is Wisconsin’s own, Seventh Circuit Judge Diane Sykes.

Judge Sykes has a demonstrated understanding of the primacy of text over intent, noting in one case that statutory interpretation should “focus primarily on the language of the statute.” A federal judiciary committed to textualism will promote liberty, separation of powers, and federalism while providing a bulwark against judicial activism and legislating from the bench.