Textualism vs. Legislative Intent

[thedecline]

Should judges use legislative history in their rulings? I'll post my thoughts later.

[thedancingbear]

It really doesn't matter. The law is indeterminate and can be used to justify an infinite number of outcomes already; adding in legislative history just makes the footwork of the clerk easier.

Cheers
IS

[thedecline]

Interesting viewpoint...

Just for kicks (because I've yet to develop very strong opinions on this issue), I'm going to defend the textualist viewpoint based on the following arguments:

1. Legislative intent is plural/difficult to determine.

2. There are 435 members of congress, it is naive to believe that there is a collective "intent" emanating from a body this large.

3. The use of legislative history allows judges to justify any conclusion they want to--basically allowing them to substitute their own judgements for majority rule.

4. Legislators vote on the actual text of the law, not the speeches that are given during debate.

***Side note: I am unashamed to admit that this is my current High School L-D topic, and that I will put to use any good ideas that come up in this thread that I may not have considered.***

[SMumps]

might interest you to note that the nat qualls resolution for LD is letter of the law vs. spirit of the law :)

[thedecline]

might interest you to note that the nat qualls resolution for LD is letter of the law vs. spirit of the law

Yes, that occured to me. See?

***Side note: I am unashamed to admit that this is my current High School L-D topic...

[PancreasMatt]

quick like a fox, that SMumps is.

[patio11]

Because I'm contrarian by nature ;) :


1. Legislative intent is plural/difficult to determine.


As opposed to legal precedents, which are singular, unchanging, and accessible in plainly available English. And statutes, which always have all implications clearly delineated in T-frontline-proof symbolic logic.


2. There are 435 members of congress, it is naive to believe that there is a collective "intent" emanating from a body this large.


Well, there is definately collective action emanating from the *535* members of Congress -- maybe they intended to do it, too? Especially regarding decisions where there is substantial unanimity. I think the declaration of war against Japan is one instance where the collective intent of the legislature is pretty darn clear -- accepting that this may be the case, why not allow arguments as to whether it is or not, rather than throwing up our hands in a postmodern fit of self-inflicted ignorance?


3. The use of legislative history allows judges to justify any conclusion they want to--basically allowing them to substitute their own judgements for majority rule.


See #1 ;)


4. Legislators vote on the actual text of the law, not the speeches that are given during debate.


But law already works on precedent, in which even the dissenting opinions are given legal imprimatur to inform future cases. Why not give opinions expressed on the floor the same voice? It would certainly make CSPAN more interesting.

Patrick McKenzie

[thedecline]

As opposed to legal precedents, which are singular, unchanging, and accessible in plainly available English. And statutes, which always have all implications clearly delineated in T-frontline-proof symbolic logic.

Between the precise language of the statutes themselves and the strict rules of statutory construction (which courts use in interpreting laws), following the law to the letter provides us with a much MORE objective way of interpreting/enforcing the law.

Well, there is definately collective action emanating from the *535* members of Congress -- maybe they intended to do it, too? ...why not allow arguments as to whether it is or not, rather than throwing up our hands in a postmodern fit of self-inflicted ignorance?
(Numerical mistake noted, a simple type-o. :p)
Even legislators who vote the same way have different ideas on what a law means or will accomplish. In many cases, nearly any conclusion could be justified using legislative history. Two opposite claims about legislative intent could be made, and both of them could be quite correct. This brings us back to my argument that allowing judges to look for the intent of the law is a license for them to substitute their own judgement for the will of the majority.

[SMumps]

oh shut up, Matt

p.s. - are you interested in making some money? IM me [surferboy hawaii]

[thedecline]

p.s. - are you interested in making some money? IM me [surferboy hawaii]
Dare I ask?

[SMumps]

;)