Duke Law Journal

Who Cares How Congress Really Works?

Abstract

Legislative intent is a fiction. Courts and scholars accept this, by and large. As this Article shows, however, both are confused as to why legislative intent is a fiction and as to what this fiction entails.

This Article first argues that the standard explanation—that Congress is a “they,” not an “it”—rests on an unduly simple conception of shared agency. Drawing from contemporary scholarship in the philosophy of action, it contends that Congress has no collective intention, not because of difficulties in aggregating the intentions of individual members, but rather because Congress lacks the sort of delegatory structure that one finds in, for example, a corporation.

Second, this Article argues that—contrary to a recent, influential wave of scholarship—the fictional nature of legislative intent leaves interpreters of legislation with little reason to care about the fine details of legislative process. It is a platitude that legislative text must be interpreted in “context.” Context, however, consists of information salient to author and audience alike. This basic insight from the philosophy of language necessitates what this Article calls the “conversation” model of interpretation. Legislation is written by legislators for those tasked with administering the law—for example, courts and agencies—and those on whom the law operates—for example, citizens. Almost any interpreter thus occupies the position of conversational participant, reading legislative text in a context consisting of information salient both to members of Congress and to citizens (as well as agencies, courts, etc.).

The conversation model displaces what this Article calls the “eavesdropping” model of interpretation—the prevailing paradigm among both courts and scholars. When asking what sources of information an interpreter should consider, courts and scholars have reliably privileged the epistemic position of members of Congress. The result is that legislation is erroneously treated as having been written by legislators exclusively for other legislators. This tendency is plainest in recent scholarship urging greater attention to legislative process—the nuances of which are of high salience to legislators but plainly not to citizens.