Elementary Statutory Interpretation: Rethinking Legislative Intent and History

Abstract

This Article argues that theorists and practitioners of statutory interpretation should rethink two very basic concepts—legislative intent and legislative history. Textualists urge that to look to legislative history is to seek an intent that does not exist. This Article argues we should put this objection to bed because, even if groups do not have minds, they have the functional equivalent of intent: they plan by using internal sequential procedures allowing them to project their collective actions forward in time. What we should mean by legislative “intent” is legislative “context.” For a group, context includes how groups act—their procedures. Once one accepts this position, we must rethink the very concept of legislative history. Legislative history is not a search for a mental state, behind the words, but a search for decisional context. We should give up talking about legislative history, replacing it with the far more helpful notion of legislative decision and statutory context.