The Idea of Congressional Intent is Incoherent

Now seems like an apposite time to remember, Congress intends no more than Congress smiles. As Ken Shepsle put it in his classic paper Congress is a “They,” not an “It”:

Legislative intent is an internally inconsistent, self-contradictory expression. Therefore, it has no meaning. To claim otherwise is to entertain a myth (the existence of a Rousseauian great law giver) or commit a fallacy (the false personification of a collectivity). In either instance, it provides a very insecure foundation for statutory interpretation.

Shepsle’s point is that Arrow’s impossibility theorem shows that not only do collectives not have preferences they can’t even be understood as if they had preferences. As I wrote earlier:

Suppose that a person is rational and that we observe their choices. After some time we will come to understand their choices in terms of their underlying preferences (assume stability–this is a thought experiment).  We will be able to say, “Ah, I see what this person wants. I understand now why they are choosing in the way that they do.  If I were them, I would choose in the same way.”

Arrow showed that when a group chooses, there are no underlying preferences to uncover–not even in theory. In one sense, the theorem is trivial. We know or should always have known that a group doesn’t have preferences anymore than a group smiles. What Arrow showed, however, is that without invoking special cases we can’t even rationalize group choices as if leviathan had preferences.

Put differently, if we do try to rationalize a leviathan with preferences and intention we will find that such a leviathian has the preferences and intention of a madman. Quoting Shepsle again:

…the Hart and Sacks (1958) notion that legislation should be treated as the result of “reasonable people pursuing reasonable purposes reasonably” is insufficient. Even if we do adopt this posture, even if legislators are the kinds
of reasonable people Hart and Sacks envision, it is still fruitless to attribute intent to
the product of their collective efforts. Individual intents, even if they are unambiguous,
do not add up like vectors. That is the content of Arrow; that is the malady of
majority rule….

…The courts cannot defer to something that is nonsense.

By the way, if legislative intent was nonsense in 1992 when Shepsle wrote, then today, when Congress is more divided than ever, it is nonsense on stilts.

Addendum: Zywicki and Stearn’s excellent book, Public Choice Concepts and Applications in Law has a good discussion of the issue and some of the alternative methods of interpreting a statute. One might begin with Holmes statement, “We do not inquire what the legislature meant; we ask only what the statutes mean.”


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