Why Would Anyone Care About Original Intent?

Abstract

Not all originalists are intentionalists. But all intentionalists are originalists. And certainly many originalists are intentionalists, for the impulses that lead scholars to embrace originalism in constitutional and statutory interpretation also often incline them to give it an intentionalist turn. When painted with a broad brush, originalism requires a judge to resolve interpretive ambiguities and uncertainties related to a constitutional or statutory text by reaching to facts about the text’s origins. An intentionalist would insist that the facts relevant to constitutional or statutory interpretation concern the original intentions of those who authored the provisions. Indeed, most intentionalists would insist that a theory of interpretation that appeals to authorial intentions best honours the reasons for defending originalism. While they must admit that originalists might appeal, instead, to authorial values, or to facts about the original audience to an enactment, they commonly insist that intentionalist interpretation best protects against the sort of “judicial legislation” that threatens to make the law sufficiently unpredictable as to chill liberty, unsettle reliance interests, and offend against the like treatment of like cases. Thus, while originalism and intentionalism are distinct, their marriage is so common as to make an inquiry into the one a useful means of gaining the measure of the other. It is my project in this paper to examine the ability of intentionalism to make good on its promises to originalism. I shall first examine the claim that intentionalism is required by our best theory of legal authority, so that to be governed by law is to be committed to honoring the intentions of its authors. I shall then take up whether intentionalism can be defended both conceptually and normatively, arguing that the most thoughtful theory of intentionalist interpretation provided to date (an account defended in recent years by Larry Alexander and Emily Sherwin) reveals insurmountable difficulties that would seemingly beset any alternative intentionalist theory, as well. I shall close by suggesting that our allegiance to the rule of law does not depend on the use of an intentionalist theory of interpretation; that an alternative understanding of the authority of law both honors the importance of law and liberates us from the (hopeless) quest for original intent.