The Utah Legislature’s 2018 general session ended last month. One bill that passed brings to mind an important lesson from two American icons: former U.S. Supreme Court Justice Antonin Scalia and Theodor Geisel, better known as Dr. Seuss.
First, Justice Scalia. He died unexpectedly just two years ago. But it’s not too soon to identify him as one of the most influential American jurists of the past 50 years. By dint of his singular pen, he transformed how American courts interpret statutes — a judge’s bread-and-butter work.
Judges and lawyers no longer scour legislative history to try to discern what the legislature intended a law to mean. Instead, statutory interpretation now begins and ends with the statute’s text — the words that the legislature (or Congress) voted on and that the governor (or president) signed into law. As Justice Elena Kagan put it in a recent Harvard lecture, because of Justice Scalia, “We’re all textualists now.”
Senate Bill 171, however, charts a contradictory course. SB171 says the Legislature has an automatic right to participate in any state-court lawsuit challenging the constitutionality of a state law. During the final House floor debate on SB171, legislators said at least six times that the bill is necessary so the Legislature can tell the court its “intent” behind the challenged law.
Consider the implications of those statements. If a bill faces a constitutional challenge, the Attorney General’s Office defends the challenge based on the statute’s text. But the Legislature wants more — the chance to tell a court what it really meant outside the text. In other words, to explain its unenacted intent.
Yet SB171 does not specify precisely whose intent will be shared with the court. Will all 104 Utah legislators introduce affidavits? Will only the bill’s sponsors speak up? Or can courts expect to hear just from legislative leadership — maybe of both parties?
Whatever that riddle’s answer, another riddle lingers: Why is the unenacted intent of legislators relevant?
In Scalia’s view, it is not. In an essay titled “A Matter of Interpretation,” he wrote, “it is simply incompatible with democratic government, or indeed, even with fair government, to have the meaning of a law determined by what the lawgiver meant, rather than by what the lawgiver promulgated.” More pointedly: “It is the law that governs, not the intent of the lawgiver.” For “men may intend what they will; but it is only the laws that they enact which bind us.”
Except under SB171. It makes the Utah Code perpetually subject to here-is-what-we-really-meant revisionism. And that threatens to undermine Utahns’ respect for the law. There’s little fairness in asking the people to honor a bill’s enacted text when the Legislature holds a residual “intent” trump card.
Fortunately, Gov. Gary Herbert saw those problems. He vetoed SB171. Now the Legislature gets to choose whether to override his veto.
That choice places front-and-center the example of the protagonist in Dr. Seuss’ 1940 classic, “Horton Hatches the Egg.” Recall that Horton the elephant climbed a tree and sat on Mayzie the bird’s egg based on her lie that she’d “hurry right back” from a short break. Mayzie never returned. But Horton sat on her egg through rain and snow and the changing seasons. He sat on it even when hunters dug up his tree and sent it, with him in it, back to the circus. When the egg finally hatched, Horton was rewarded with the world’s first elephant-bird.
Why didn’t Horton leave the egg? Because he said he’d stay. Horton “meant what he said and he said what he meant.”
Good advice for elephants and legislatures: Mean what you say. Say what you mean. Let the enacted text stand on its own. Abandon SB171’s legislative-intent inquiry as an outmoded relic of a distant era. That’s fairness befitting both of Utah’s elected branches — and the people they serve.
Paul Cassell, a former federal judge and now a law professor, talks about victims' rights Wednesday, July 16, 2008, in offices at the University of Utah Law School. Cassell specializes in victims' rights and has represented victims in the Oklahoma City bombing and other cases. 07/16/08 (Jim Urquhart/The Salt Lake Tribune)
Paul G. Cassell is the Ronald N. Boyce presidential professor of criminal law at the S.J. Quinney College of Law at the University of Utah.