Zedner & Legislative Intent

In his opinion for the Court in Zedner v. U.S. Justice Samuel Alito explored the legislative history of the Speedy Trial Act of 1974, along with the text of the Act, in coming to the conclusion that said Act did not permit a criminal defendant to waive his right to a speedy trial in federal criminal proceedings. Justice Antonin Scalia joined the opinion of the Court but in a separate concurrence chastised Justice Alito’s exploration of legislative history.1 " I believe that the only language that constitutes ‘a Law’ within the meaning of the Bicameralism and Presentment Clause of Article I, Section 7, and hence the only language deserving our attention, is the text of the enacted statute."

I agree with Justice Scalia. Trying to determine the intent a legislature had when passing a law is the equivalent of a dog trying to catch his own tail. There are as many possible intentions behind a law as there are legislators voting to pass it. Some intentions may be noble, some may be nefarious. Some legislators may have read and understood it one way, others may have read and understood it another. The intent of the legislature cannot be discovered because one, discernible intention does not exist.

As Justice Scalia has pointed out, even if legislative intent could be reasonably ascertained, "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.....It is the law that governs, not the intent of the lawgiver."2

Constructing law via the unidentifiable legislative intent behind a given law is starkly antithetical to the notion of a country governed by the rule of law. We are a country governed by laws, not the undiscoverable intentions of our lawmakers. The Supreme Court, and every other court in America, should avoid venturing into legislative intent exploration.


1. That Justices Scalia and Alito disagree over the value of legislative intent places one more nail in the coffin of the notion held by many liberals during Justice Alito’s confirmation process that he is a Scalia clone ("Scalito"). The Washington Post editorializes on this very point.

The Post’s description and criticism of Justice Scalia’s repugnance towards legislative history is another matter. If adhering to the actual text of a statute is "rigid" then a toast to judicial rigidity, it is an assurance that we are all governed by laws, not men.

2. Scalia, Antonin (1997). A Matter of Interpretation. Princeton, New Jersey: Princeton University Press. (p. 17.)