![]() | This article may be unbalanced toward certain viewpoints.(September 2010) |
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.
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]
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]
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.
'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
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.
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.