Legislative Intentionalism and Proxy Agency

Law and Philosophy

Volumn 29, Issue 1, 2010, Pages 1-29

  Macpherson, James A E ^a  

^a OHIO STATE UNIVERSITY   (United States)

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[No Author keywords available]

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EID: 63749102176     PISSN: 01675249     EISSN: None     Source Type: Journal    
DOI: 10.1007/s10982-009-9048-z     Document Type: Article

References (23)

1. John F. Manning claims that intentionalism was the "orthodoxy" amongst federal judges for much of the last century, though textualism has been increasingly influential recently (Textualism and Legislative Intent, Virginia Law Review 91 (2005): 419-450).
2. Amongst academics, intentionalism may not have been the orthodoxy, but it has certainly had adherents -for a recent defense, see Solan, Lawrence M., Private Language, Public Laws: The Central Role of Legislative Intent in Statutory Interpretation, Georgetown Law Journal 93 (2005): 427-486. I share with Solan a general focus on the intentions of some members of legislatures only, although I disagree with Solan about the justification for that focus.
3. Particularly when applied to constitutional interpretation, this view has also been called originalism, or more recently, original intent originalism. All of these terms, however, are at times used for different views. Originalism, for example, has also been taken to refer to the view that a piece of legislation should be interpreted in accordance with the public meaning of the text at the time it was written. Confusingly, even intentionalism has sometimes been used for views that stress the importance of other states besides intentions (such as purposes or aims), though - as Gerald C. MacCallum notes - this may be because the other states are conflated with intentions (see MacCallum, Gerald C., Legislative Intent, The Yale Law Journal 75 (1966): 754-787).
4. Stoljar, Natalie, Interpretation, Indeterminacy and Authority: Some Recent Controversies in the Philosophy of Law, The Journal of Political Philosophy 11 (2003): 479.
5. The claim that legislators sometimes do not read the bills that they vote on is not just unsupported cynicism. In an op-ed piece for the Washington Post (27 November 2004, p. A31), U. S. Congressman Brian Baird asserts: "if forced to tell the truth, most members of Congress would acknowledge that they did not fully or, in many cases, even partially read bills before casting their votes." Indeed, Baird claims that in many cases members of Congress are not even given the chance to read bills fully. Although rules require that a bill be made available to all members of Congress at least 3 days before the vote on that bill is scheduled, those rules are often overridden or ignored. As he explains: "the Medicare prescription drug bill, the energy bill, the intelligence bill and the defense authorization bill... total more than 2,900 pages of text and authorize more than $1 trillion of spending. Yet, collectively they were available to members for less than 48 h total for reading."
6. Brest, Paul, The Misconceived Quest for the Original Understanding, Boston University Law Review 60 (1980): 204-238.
7. Bratman, Michael, Faces of Intention: Selected Essays on Intention and Agency (Cambridge, UK: Cambridge University Press, 1999), p. 121.
8. The question of how many members of a legislature must have an intention for that intention to be attributed to the legislature itself has also been discussed recently by Lawrence M. Solan (see Private Language, Public Laws, pp. 438-442). Solan uses an example involving two people - Mario and Adela - to claim that only some of the members of a group need to share an intention for that intention to be attributed to the group. On my reading of his example, Mario and Adela cannot be attributed a single (token) intention as a group; rather, Adela has formed an intention on behalf of Mario - the dif-ference is an important one, for reasons that should soon become clear.
9. It should be obvious to anyone familiar with the common law rela-tionship of agency that the relationship described here mirrors the common law relationship in many respects. But, despite the similarities, they are not the same relationship. The relationship described here is a pre-legal, nor-mative relationship, in the sense that it is not dependent on the law, nor created by it. Also, in some respects, the contours of the two relationships differ significantly. For example, when the agent is an employee of the principal, the legal doctrine of respondeat superior allows the principal to be held legally responsible for the agent s actions even if those actions "have not been specifically directed by an employer but... are the consequences of inattentiveness or poor judgment on the part of an employee acting within the job description" (The American Law Institute, Restatement of the Law Third, Agency, §2.04). So, using the above example, if Brian is employed by Andy to bid on his behalf at an auction, and Brian starts a fire at the auction house by carelessly disposing of a cigarette butt, the doctrine of respondeat superior would seem to require that Andy take on the legal consequences of Brian s actions. In contrast, it should be clear that Andy would not be expected to take on those consequences under the pre-legal relationship, as Andy did not direct Brian to start a fire, nor could he reasonably expect that a fire would result from what he did ask Brian to do on his behalf. There are a number of other, less significant ways in which the relationships differ, but they cannot all be detailed here.
10. All three references are from Hobbes Leviathan, ed. J. C. A. Gaskin (Oxford: Oxford University Press, 1996), Book I, Chapter XVI, paragraphs 2-5.
11. For more on status functions, see John Searle's The Construction of Social Reality (New York: The Free Press, 1995), particularly Chapter 2. The relevance of this notion for proxy agency is a point that I take from Kirk Ludwig - it is explained in detail in his Collective Action and Proxy Agency (manuscript, 14 July 2008).
12. Dictionaries commonly separate these meanings, though they some-times list both as meanings of the on behalf of locution. The American Heritage Book of English Usage states clearly that this is a recent development: "a traditional rule holds that in behalf of and on behalf of have distinct meanings. Accordingly, you should use in behalf of to mean "for the benefit of," as in We raised money in behalf of the earthquake victims. And you should use on behalf of to mean "as the agent of, on the part of," as in The guardian signed the contract on behalf of the child. But as the two meanings are quite close, the phrases are often used interchangeably, even by reputable writers."
13. For further examples of arguments of this type, see Stoljar, Interpretation, Indeterminacy, and Authority. Stoljar categorizes arguments for intentionalism as either conceptual or normative. The first, second, and fourth conceptual arguments that she lists all rely upon the status of the legislators as authors.
14. Dworkin, Comment, in Antonin Scalia (ed.), A Matter of Interpretation: Federal Courts and the Law (Princeton, NJ: Princeton University Press, 1997), pp. 115-128.
15. Of course, there are limits to the degree to which the author s intentions can determine the meaning of an assertion. If I tell you that I admire bays, but I mistakenly believe that luxury yachts are called bays, it does not follow that what I actually said was that I admire luxury yachts. The degree to which intentions determine meaning is complicated and convention-governed; but, very generally, they seem to play a role only in cases of genuine indeterminacy - a point that could have interesting implications for cases in which it is claimed that intentions override or trump the plain meaning of a text.
16. At this point, one might be reminded of Hobbes claim that when one person acts representing another, the other person is the author of the actions. It seems reasonable to assume that when Hobbes uses this term, he is using it in the slightly archaic sense of source or originator, which is not the sense at play in the arguments relying upon the the author view.
17. A complicating factor here is that both kinds of authority are commonly found together. Doctors can be used to illustrate this point, as they almost always have authority in the sense of expertise, but they also have a normative authority - including a legally recognized authority to prescribe drugs, for example. An interesting characteristic of their normative authority is that they are normally legally prohibited from delegating it or passing it on - presumably because highly specialized skills are required to exercise the authority successfully.
18. This is based on Stoljar's third normative argument against intentionalism (see Interpretation, Indeterminacy, and Authority, p. 476). The third of the conceptual arguments that Stoljar lists also relies upon the authority of the legislature.
19. Meese, Speech Before the American Bar Association, in Steven G. Calabresi (ed.), Originalism: The Quarter-Century of Debate (Washington, DC: Regnery Publishing, 1985), pp. 47-54.
20. As Jeremy Waldron notes, the interpretations of appellate judges are the most important, and appellate judges are not elected. Even if judges are elected, they "are seldom regarded by voters (and hardly ever regard themselves) as popular representatives in the same way that legislators are." See Legislator s Intentions and Unintentional Legislation, in Andrei Marmor (ed.), Law and Interpretation (Oxford: Clarendon Press, 1995).
21. Andrei Marmor presents a much more sophisticated argument of this form in his Interpretation and Legal Theory (Oxford: Clarendon Press, 1992) - especially Chapter 8.
22. The conditions of Bratman s account were outlined in Section II. In this section, I focus on the first and third conditions, because the second condition will be trivially satisfied for cases involving the production of legislation by a subgroup. After all, there is only one way in which the members of a subgroup can produce legislation, which requires the voluntary cooperation of the other members; so if the members of the subgroup each intend to produce a particular piece of legislation, they cannot help but intend to do so "in accordance with and because of" the intentions and meshing subplans of the others (Bratman, Faces of Intention, p. 121).
23. Notice also that the relationship between the intentions of a subgroup and the intentions of a legislature is asymmetric: if we could come to know that the members of the legislature as a whole shared an intention, that would tell us that the members of the subgroup shared the intention - at least so long as the members of the subgroup were members of the legislature.