us-supreme-court congress legislature legislative-intent intent
Are legislators ever asked to explain their intent in Supreme Court cases?
<p>I recently started to listen to recordings of arguments before the Supreme Court.  I am not a lawyer so I don't completely follow everything, but I noticed right away that a lot of arguments deal with the <em>intent</em> of this or that law.</p>
<p>Given that this is such an important focus, have arguments before the Supreme Court ever involved testimony of some sort from legislators who drafted the laws being debated, explaining what they really intended the law to mean?  I noticed that attorneys even bring up how a certain word in a law is defined in the Merriam-Webster's Dictionary.  Wouldn't it make more sense just to ask those who wrote a law to explain what was meant (assuming they are still alive)?</p>

<p>Many jurists do accept that it is appropriate to attempt to ascertain the &quot;legislative intent&quot; as part of the exercise of statutory interpretation, but legislative intent is not an aggregate of the subjective intentions of individual legislators. I am not aware of any question of statutory interpretation that was informed by testimony from staffers or legislators who drafted, debated, or enacted a law.</p>
<p>For some rationale, see <a href="https://en.wikipedia.org/wiki/Frank_Easterbrook" rel="noreferrer">Judge Easterbrook</a>'s foreward to <a href="https://en.wikipedia.org/wiki/Antonin_Scalia" rel="noreferrer">Antonin Scalia</a> and <a href="https://en.wikipedia.org/wiki/Bryan_A._Garner" rel="noreferrer">Bryan Garner</a>'s <a href="https://www.worldcat.org/en/title/reading-law-the-interpretation-of-legal-texts/oclc/780036606" rel="noreferrer"><em>Reading Law: The Interpretation of Legal Texts</em></a>:</p>
<blockquote>
<p>Legislative intent is a fiction, a back-formation from other and often undisclosed sources. Every legislat<em>or</em> has an intent, which usually cannot be discovered, since most say nothing before voting on most bills; and the legislat<em>ure</em> is a collective body that does not have a mind; it &quot;intends&quot; only that the text be adopted, and statutory texts usually are compromises that match no one's first preference.</p>
<p>If some legislators say one thing and others say something else... how does the interpreter choose which path to follow?</p>
</blockquote>
<p><a href="/questions/tagged/canada" class="post-tag" title="show questions tagged &#39;canada&#39;" aria-label="show questions tagged &#39;canada&#39;" rel="tag" aria-labelledby="tag-canada-tooltip-container">canada</a></p>
<p>Even evidence of what was said in Parliamentary debate is treated cautiously (<a href="https://www.canlii.org/en/ca/scc/doc/1994/1994canlii34/1994canlii34.html" rel="noreferrer"><em>R. v. Heywood</em>, [1994] 3 S.C.R. 761</a>):</p>
<blockquote>
<p>First, the intent of particular members of Parliament is not the same as the intent of the Parliament as a whole.  Thus, it may be said that the corporate will of the legislature is only found in the text of provisions which are passed into law.  Second, the political nature of Parliamentary debates brings into question the reliability of the statements made. Different members of the legislature may have different purposes in putting forward their positions.  That is to say the statements of a member made in the heat of debate or in committee hearings may not reflect even that member's position at the time of the final vote on the legislation.</p>
</blockquote>
<p>Legislative intent is determined by looking at the words, the scheme, and the object of the provision (<a href="https://canlii.ca/t/g62cv#par16" rel="noreferrer"><em>R. v. Hutchinson</em>, 2014 SCC 19, paragraph 16</a>).</p>

<p>One impediment to such explanations is that when hearing an appeal (as opposed to a case where SCOTUS has original jurisdiction), there are no witnesses testifying. An attorney for a party may argue, but a legislator or witness cannot testify. Information (of various kinds) enters into the stream via amicus briefs, which may indeed affect the outcome, but rarely do the justices indicate in their opinions where they get their information, even when it's not about something that they personally know.</p>
<p>Scalia in <em>Common-Law Courts in a Civil-Law System</em> p. 107 mentions an exchange within the Senate regarding &quot;legislative intent&quot; in the course of the case <a href="https://casetext.com/case/hirschey-v-ferc" rel="noreferrer">Hirschey v. Federal Energy Regulatory Comm’n</a>, 777 F.2d 1 where he refers to &quot;the legislative history&quot; contained in <a href="https://www.govinfo.gov/app/details/GPO-CRECB-1982-pt19" rel="noreferrer">128 Cong. Rec. 16918-19, 97th Cong., 2d Sess.</a>. This is a transcript of actual words uttered on the floor of the Senate, from which one might attempt to arrive at an understanding of &quot;legislative intent&quot;.</p>
<p>Your idea is to ask &quot;the person who wrote the bill&quot; what they intended, however, there may well be no identifiable individual, since bills frequently have multiple sponsors, and legislators don't write laws (they have staff who do the writing). Appellate courts do look at the objective record regarding the creation of laws, as informed by amicus briefs, but they do not interrogate witnesses to the creation of law, and they avoid subjective perspectives like &quot;I wanted to bring about social justice&quot;. Even in a trial, it's the lawyers who ask the questions.</p>

<p><a href="/questions/tagged/switzerland" class="post-tag" title="show questions tagged &#39;switzerland&#39;" aria-label="show questions tagged &#39;switzerland&#39;" rel="tag" aria-labelledby="tag-switzerland-tooltip-container">switzerland</a></p>
<p>Not explicitly. The court isn't (as far as I'm aware) going to ask the lawmakers for a statement during a trial. This would be quite difficult, because typically the law is drafted by some government employee, finalized by the federal council and then debated, changed and amended by the parliament (whose members typically have very different goals and opinions). So who are you going to ask?</p>
<p>But what is common is that the court takes the reasoning presented to the parliament into consideration. The government writes, together with a proposed law, a lengthy report on why it thinks that law is needed. That might help the court to understand the intended meaning.</p>
<p>Additionally, since in Switzerland laws are officially provided in three languages, the court can take another language into consideration, which might be less ambiguous in a certain point.</p>

<p><a href="/questions/tagged/hungary" class="post-tag" title="show questions tagged &#39;hungary&#39;" aria-label="show questions tagged &#39;hungary&#39;" rel="tag" aria-labelledby="tag-hungary-tooltip-container">hungary</a></p>
<p>Maybe an interesting detail, bills in Hungary are drafted together with an explanatory memorandum that is supposed to describe the societal, economical and legal reasons, intentions and justification, as well as the expected outcome and the aims it is set to reach. This is not just a kind of preamble of a few sentences but usually as long as the bill itself, or longer, enumerating section after section.</p>
<p>When done properly, not just as a formal description of merely repeating the individual sections of the bill without adding real details, this can help both the parliament during the debates and later, when the bill is enacted, to document the original intentions of the legislation in sufficient detail.</p>

<h2>No, it would clearly breach of the separation of powers doctrine</h2>
<p>Government in the Western tradition requires a clear separation of the roles of the legislature, the executive, and the judiciary. This may be explicitly in a written constitution (e.g. USA, France) or it may be a convention having constitutional force (e.g. UK).</p>
<p>Broadly speaking, the legislature writes the law, the executive administers the law, and the judiciary interprets the law. Legislators testifying as to how the law should be interpreted clearly breaks these roles.</p>
<h2>There are practical difficulties too</h2>
<p>The US has 535 legislators, are you going to get them all to testify as to what they meant? If not, which ones do you choose? If the law was passed in 2006, will you get that Congress to testify or the current one? What if it was in 1892 when everyone involved is long dead?</p>

<p>This happens in Germany; when a law is unclear, the Federal Court of Justice can request action by the legislature.</p>
