law; statutory interpretation; institutional intent; disaggregated-intent theory; intentionalism
In statutory interpretation, theorists have long argued that the U.S. Congress is a “they,” not an “it.” Under this view, Congress is plural and nonhierarchical, and so it is incapable of forming a single, institutional intent. Textualists contend that this vision of Congress means interpreters must move away from concerns about intent altogether, and that they instead should speak in the register of textualism and its associated constitutional values, such as notice and congressional incentivization. However, even if legislators’ intentions never coalesce into an institutional intent, a disaggregated-intent theory of legislation remains possible. Under this theory, statutes are understood as accomplishing a transfer not of the intent of a single legislature, but of a collection of individual legislators. While this theory often has been overlooked or summarily dismissed, this Article argues that it is theoretically viable, constitutionally defensible, and in accord with prevailing notions of legislative authority. Moreover, disaggregated-intent theory generates its own vision of legislation and interpretation—one that can transform our understanding of specific methods of statutory interpretation. To illustrate this, the Article turns to intentionalism, showing how a different understanding of intentionalist methodology emerges from an approach rooted in disaggregated-intent theory. The result is a new vision of the strengths and weaknesses of both intentionalism and its competitor methodologies.
Jesse M. Cross,
Disaggregating Legislative Intent,
90 Fordham L. Rev. 2221
Available at: https://ir.lawnet.fordham.edu/flr/vol90/iss5/12