Intention and Interpretation

Abstract

This article addresses the terms under which discussions of legal (i.e. constitutional and statutory) interpretation take place, advocating a shift away from “originalism” as our axis of debate to “intentionalism.” I argue that originalism has far more in common with its foes than has been generally recognized, and that intentionalism better implicates the most fundamental aspect of such methods of interpretation, regarding the existence, nature, and importance of intentions. I assert that originalists, just as much as many traditionally considered opposed to them, are intentionalists because they rely on mental state theories of intention. Tracking debates in the philosophy of action and literary theory, I also suggest that it is helpful to talk of intentionalism because it more explicitly relates legal concerns to the interpretive concerns common to these other fields. My approach also engages the work of others who, in various ways, have earlier discussed in the legal literature the broader context and implications of intentionalism, and especially that of Heidi Hurd on the ubiquity of intentionalism in legal interpretation. Although I do not here limn or endorse a specific interpretive methodology, my conclusions do extend to asserting that originalism and textualism, instead of being complementary, are at direct odds with one another – with originalism being a form of intentionalism and textualism explicitly rejecting intentionalism.