Whose Intent is Relevant for Interpreting Text -- the Drafters of the Text (Constitution or Statute) Or the Mythical Contemporaneous Public Person, Say Joe the Ploughman? (7/8/20)

In Chiafalo v. Washington, ___ U.S. ___, ___ S.Ct. ___ (7/6/20), here, the Court held (from the Syllabus):  “A State may enforce an elector’s pledge to support his party’s nominee—and the state voters’ choice—for President.”  I’ll just take that bare holding (without nuance) as stated in the quote.  What I want to address today is the majority opinion in which the draft, Justice Kagan, and seven other Justices joined (except that Justice Gorsuch joined Justice Thomas’ consent for the part relevant to this discussion).

I speak here of the proper referent when looking to the original meaning of text—in this case, constitutional text but also including legislative text.  Much bandied about by conservatives and libertarians is the notion of “original public meaning” which is usually refers to the meaning that some hypothetical hearer or reader of the text (constitutional or legislative) might give the text at the time of adoption or enactment.  In Bostock v. Clayton County, 590 U.S. ___, ___ S.Ct. ___ (6/16/20), here, a statutory interpretation case, the Justices seem to sign onto the notion that original public meaning was the proper referent rather than the intent of the legislators.  See Supreme Court Case on Statutory Interpretation (Federal Tax Procedure Blog 6/16/20; 6/24/20), here.

In Chiafalo, a constitutional interpretation case, the majority did not mention any notion of referring to original public meaning and instead referred to the words of the Constitution and the words of the Framers.  In his dissent, Justice Thomas takes the majority to task on this issue as follows (dissenting opinion p. 12):  “[T]he Framers’ expectations aid our interpretive inquiry only to the extent that they provide evidence of the original public meaning of the Constitution.”  The majority opinion does not frame its use of the Framers’ words as being used solely to determine the original public meaning.

So, which is it?  I don’t know.

I do know that the drafters of constitutions or legislation is done not by mythical members of the original public but by duly chosen representatives (either in a constitutional convention or a legislature).  They were chosen to act for the constituencies they represented.  If representative democracy means anything, surely it means that these chosen representatives speak for the communities they represent and their intentions mean something.  What are they—potted plants?  (Evoking the famous words of Brendan Sullivan in the congressional hearings in the Iran-Contra scandal, see Wikipedia here.  To know what their intent (and by representation their constituencies’ intent), what they said is relevant  to the interpretation of the text.  What some mythical person at the time, like Joe the Ploughman, might have thought the words meant is not really relevant in a representative democracy.  (On Joe the Ploughman, see Jack N. Rakove, Joe the Ploughman Reads the Constitution, or, the Poverty of Public Meaning Originalism, 48 San Diego L. Rev. 575 (2011), here.)  If we are talking about lenity or some similar concept for penalties, that is another issue because the public's ability to discern the meaning from the text is relevant, but if outside that context, the drill ought to be to interpret the statute in a manner consistent with the text and the intent of the representative drafters.

That is why I continue to think that, particularly in my field of interest (taxation), the legislative history is worthy of consideration.  Generally, tax legislative history is pretty good because of the quality of the nonpartisan Joint Committee Staff that has a substantial hand in the process of producing legislative history.  That does not mean legislative history should control.  Some legislative history is persuasive; some is not.  Like any other evidence, the judge must be discerning.  It is their job to be discerning and not throw out the baby with the bath water.