Original intent

Last updated

Original intent is a theory in law concerning constitutional and statutory interpretation. It is frequently used as a synonym for originalism; [1] while original intent is one theory in the originalist family, it has some salient differences which has led originalists from more predominant schools of thought such as original meaning to distinguish original intent as much as legal realists do.

Contents

Approach

Original intent maintains that in interpreting a text, a court should determine what the authors of the text were trying to achieve, and to give effect to what they intended the statute to accomplish, the actual text of the legislation notwithstanding. [2] [3] As in purposivism, tools such as legislative history are often used.

One example of original intent is in Freeman v. Quicken Loans Inc., [2012]. The plaintiffs took out mortgage loans from Quicken Loans. In 2008 they sued Quicken Loans arguing that that respondent had violated Real Estate Settlement Procedures Act (RESPA) Section 2607(b) by charging them fees for which no services were provided. The plaintiffs supported their allegation by referring to the Department of Housing and Urban Development (HUD) policy statement that says that §2607(b) “prohibit[s] any person from giving or accepting any unearned fees, i.e., charges or payments for real estate settlement services other than for goods or facilities provided or services performed.”

Justice Scalia delivered the opinion of the court that RESPA Section 2607(b) was not violated by referencing that RESPA included a directive that HUD make a report to Congress regarding the need for further legislation in the area, so the original intent was to pass new legislature if it was needed, so the Supreme Court ruled in favor of the defendant. [1]

Problems

Originalist criticisms of original intent proponents (and some proposed rebuttals)

Despite the potential confusion of terms between the original intent and originalism, other schools of originalist thought have been as critical of original intent as non-originalists. [4] [5]

Other schools of thought

In Canada, the predominant school of thought for legal interpretation is the living tree doctrine, under which interpretations can evolve along with the society, to deal with new conditions that were different or did not exist when the Constitution was framed.

See also

Notes

  1. 1 2 Black, Henry Campbell (1990). Black's Law Dictionary (6th ed.). West Publishing. p. 1133. ISBN   90-6544-631-1.
  2. Beal, Edward (1896). Cardinal Rules Of Legal Interpretation. Stevens & Sons Ltd. p. 121. 'You cannot resort to the preamble to ascertain the intention of an Act, unless there is an ambiguity in the enacting: part.'— Taylor v. Corporation of Oldham (1876), 4 Ch. D. 395, at p. 404; 46 L. J. Ch. 105, Jessel, M. R. ... 'I quite agree with the argument which has been addressed to your Lordships, that in construing an Act of Parliament where the intention of the legislature is declared by the preamble, we are to give effect to that preamble to this extent, namely, that it shows us what the legislature are intending; and if the words of enactment have a meaning which does not go beyond that preamble, or which may come up to the preamble, in either case we prefer that meaning to one showing an intention of the legislature which would not answer the purposes of the preamble, or which would go beyond them. To that extent only is the preamble material.' – Overseers of West Ham v. Iles (1883), 8 App. Cas. 386, at pp 388, 389; 52 L. J. Q. B. 650, Lord Blackburn
  3. Zander, Law-Making Process p. 166 ("It is for the courts to construe [the statute's] words and it is the court's duty in so doing to give effect to the intention of Parliament in using those words").
  4. Antonin, Antonin (18 October 1996). "A Theory of Constitution Interpretation". NinoVille. Archived from the original on 17 March 2006. Retrieved 14 March 2025. You will never hear me refer to original intent, because as I say I am first of all a textualist, and secondly an originalist. If you are a textualist, you don't care about the intent, and I don't care if the framers of the Constitution had some secret meaning in mind when they adopted its words.
  5. Bork, Robert H. (1990). The Tempting of America . Riverside: Free Press. p. 144. ISBN   978-0-684-84337-7. If someone found a letter from George Washington to Martha telling her that what he meant by the power to lay taxes was not what other people meant, that would not change our reading of the Constitution in the slightest.... Law is a public act. Secret reservations or intentions count for nothing. All that counts is how the words used in the Constitution would have been understood at the time.
  6. Cf. The Federalist Papers and The Complete Anti-Federalist
  7. Beard, Charles A. (1913). An Economic Interpretation of the Constitution of the United States (1st ed.). Macmillan Inc.
  8. In the documentary Fahrenheit 9/11, for example, John Conyers a Democratic member of the House responds incredulously to the filmmaker's inquiry as to whether anyone in Congress read the Patriot Act, stating "We don't read most of the bills. Do you really know what that would entail if we were to read every bill that we passed?" John Conyers on Reading Bills in Congress, Fahrenheit 9/11 trailer, 1:00 minute mark
  9. This is precisely why textualists reject the use of legislative history in determining the meaning of a statute.
  10. Scalia, Antonin; Garner, Bryan A. (2012). Reading Law: The Interpretation of Legal Texts . St. Paul, Minnesota: Thomson/West. ISBN   978-0-314-27555-4.