Originalism and the Incentives of the Legislator


We usually assume that legislators write laws to be understood. But cases exist in which legislators write less clearly rather than more clearly. Well known and often discussed are the whys and wherefores of legislative delegation to executive agencies. Without intending a comprehensive list, here are a couple of other reasons why legislators write more ambiguously rather than less.

First, there is simply the opportunity cost of writing more specifically rather than less. Tiptoeing around the use of legislative staff and interest groups to draft legislation (that’s for another discussion), let’s first consider the classic picture of a legislator drafting legislation.

Legislators face opportunity costs to writing legislation. Every minute they spend writing legislation is time they can’t spend drafting other laws, or on constituency services, on campaigning and other reelection-oriented activities, meeting institutional service obligations, etc. Drafting “clear legislation” is not a yes or a no, but as continuum of clearer- relative to less-clear drafting. The more detail one provides the less ambiguous the legislation, but the more time it takes and so the greater opportunity cost it imposes. I imagine clarity in a bill as asymptotic in time; the more time one invests in writing legislation the greater clarity one attains, but clarity increases at a decreasing rate. Perfect clarity can be reached only in the limit (which is never reached).

So legislators will spend time writing a bill up to the point that the marginal value to them of investing additional time to reduce the ambiguity of the bill just equals the marginal value to be gained of time devoted to other activities. If the law were so ambiguous it was no more than statutory babble, then the legislator wasted time writing the legislation. So legislators want to write laws clear enough that it accomplishes something they intended for it. At the same time, the point at which the legislator feels that the legislation is clear enough for his or her purposes – whether achieving policy goals, credit claiming for election or higher office, providing service to the party leadership, whatever – might mean it still contains substantial ambiguity. Beyond certain thresholds – a statute being “void for vagueness” as an example – there’s no reason to assume that the optimum commitment of individual legislators’ time to the drafting process necessarily maps onto univocally determinate meanings. But what can be specific enough before enactment for a legislator may leave important facets of legislation ambiguous when interpreted after enactment.

Secondly, different legislative coalitions, none which has a majority of legislators, might disagree on one or more critical provisions in a bill. If any one of the coalitions gets it way with specific language in the bill, the others will vote against it and the bill will die. But if the coalitions can draft the contested provisions ambiguously enough to allow for them to be interpreted after enactment to reflect any one of the respective coalition preferences, then they can effectively induce a judicial lottery (or a bureaucratic lottery) over the bill. When the bill’s value to each of the coalitions is positive in expectation, their support for the bill’s enactment can be guaranteed.

This would obviously work for the bill’s passage if each coalition supported the other coalitions’ alternatives more than the status quo. More surprisingly, this can work even if each respective coalition prefers its own proposal over the status quo, but prefers the status quo over the other coalitions’ proposals. Depending on the respective probabilities and the value each coalition places on the possibility of getting its preferred proposal realized as policy, it’s possible for all of the coalitions to vote for the bill even when each coalition believes it’s more probable that the provision will be interpreted contrary to its preferences. (We might call this possibility “probabilistic logrolling.”)

Finally there is blame shifting. Legislators can leverage the first-mover advantage they enjoy relative to courts and agencies to adopt policies legislators want to adopt but that they think their constituents won’t like. Legislators can draft intentionally ambiguous statutory provisions so they can deny to voters they meant the interpretation given to it by judges or bureaucrats, even though they fully anticipated, even desired, that interpretation. There can be a weaker form of this as well, in which legislators adopt ambiguous statutes as a form, as it were, of delegation to judges and bureaucrats. (We’re familiar with this in talking about delegation to the executive branch; less so in speaking of what is effectively legislative delegation to the judiciary.)

I might note in passing that these possibilities bite against “original-intent originalism”: In each of these situations, except perhaps in some forms of the last case, legislators don’t actually have any intentions regarding the contested provision. In the first case, the individual legislator develops no intention for given provisions because the legislator doesn’t devote time to think about remaining ambiguities. In the second case, legislators in the different coalitions have different and inconsistent intentions regarding the legislation. In the last case, legislators are at pains to hide their specific intentions (in the stronger case) and in the weaker case form no intentions when they’re fine with delegating interpretation to courts or legislators.

None of these examples, however, bite against any form of textualist originalism, given the legislative product in each case is an actual text, and these texts can be read and construed reasonably. The examples, however, do bite against some reasons advanced in favor of textualism, in particular that the methodology discovers determinate meanings of legal texts, and so tethers judicial or executive interpretation to legislative expectations. In each of these examples, there is no determinate meaning even at the very point of adoption. In the first case the cross-pressured legislator simply doesn’t spend time to think about specific cases that might arise due to the residual ambiguity. In the second case the legislators disagree about what the contested provisions actually mean. In the weak version of the third case legislators don’t have any particular meaning in mind, they only want to pass the hot potato to the courts or executive. But each of the texts, even if ambiguous, can be read honestly, which is what I take to be the compelling virtue of textualist originalism.

James R. Rogers

James Rogers is associate professor of political science at Texas A&M University, and is a fellow with the Institute for Science, Technology and Public Policy at the Bush School of Government and Public Service. He also served as editor of the Journal of Theoretical Politics from 2006 through 2013.

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  1. gabe says

    Honesty may prove insufficient in unwrapping the mystery, inside the puzzle, buried deep within the enigma such as our Legislative *sausage making* has become.

    To what should the honest jurist make reference? A body of text purposively crafted to exude vagueness, intended to be opened and deciphered by an agency OTHER than the Legislative authority, and offered to the People not as a Rule of general applicability but as a “plaything’ to be more finely crafted by a non-lawmaking body (Executive / Judiciary) and to advance either partisan or personal ambitions NOT the welfare of the citizenry consequent upon good and wise legislation.

    Goodness gracious, my 2 year old grandson approaches complex electronic devices with *utter* guilelessness and honesty; clearly, he is more fascinated with pushing the colored buttons – it is perhaps in the hope of understanding the workings of these *devices* that he merrily bangs away on the buttons.

    Surely, we should provide our Jurists with a better opportunity for understanding than that afforded a 2 year old.

    Regrettably, the essayist is spot-on in citing all of the factors going into “sausage making.”

    • gabe says

      Then again, perhaps, I may be hoisted upon my own petard. It could conceivably be argued that the Legislative has taken quite seriously the injunction to pass Laws / rules of General applicability – they are now so *general* as to be susceptible to any and all interpretations. How is that for *general*?

  2. Devin Watkins says

    They cut against original intent originalism, but they don’t effect at all original meaning originalism. It doesn’t matter what the legislatures thought they were doing. What only matters is what the citizens reading it when it was promulgated would think it meant.

    • gabe says


      After having read, McGinnis and Rappaport’s paper on “Language of the Law”, would you consider softening that last sentence?

      Just curious – their paper had an impact on my “primitive” thinking, anyway.

      • gabe says

        oops, forgot:

        re: impact on thinking;

        At least under the “Language of Law” thesis, one could not justify “penumbras and emanations” as nobody really considers that a term of legal art.

      • Devin Watkins says

        It is true that you have to assume some level of legal knowledge as to the common law and common legal understanding (including legal phrases and rules of construction). This is the only conclusion I draw from the paper (although I knew of what they wrote before I read the paper so it didn’t change my thinking).

        But it does not matter what the legislator or drafters meant to do, what only maters is what they actually did. The only important question is what people of the era reading it at the time it is announced would have thought it meant. This understanding clearly incorporates the common law and legal understandings of the people of the era, but what is important is what they would understand the language used to mean.

        • gabe says


          Agreed that there is a not insubstantial (if not substantive) component of *common law* contained / embedded within the US Constitution AND that the ‘ratifiers” would have so recognized the common law influence.

          Yet, is there not more to this *Supra-Law*? In short what we may be confronting is something that is both fish AND fowl.

          I suspect we may differ on this because:

          1) I may be reading too much into McGinnis & Rappaport’s paper
          2) You may be reading too little into it.
          (Or maybe both).

          “what only mat[t]ers is what they actually did. The only important question is what people of the era reading it at the time it is announced would have thought it meant. This understanding clearly incorporates the common law and legal understandings of the people of the era, but what is important is what they would understand the language used to mean.”

          I may read too much into because I believe that the authors have in mind a system of jurisprudence that would limit the opportunity for judicial freewheeling by restricting judicial opinion(s) to those that may be reached only by resort to those determinations that may be said to be derived from a faithful adherence to “legal terms of art” and not the somewhat more copious possibilities arising out of common law understanding / practices. Under common law, it is more likely that Solomon could “split the baby”; it is questionable if he could do so under a “language of the law” jurisprudence.

          “…common law and legal understandings of the people of the era…”

          Let us take this apparently non-contentious statement:

          What were those common understandings? How far did they extend?
          Below is a link to a piece at Originalism Blog by Mike Ramsey regarding recent decisions by Justice Thomas that I shall (ab)use to illustrate the lack of depth and breadth (perhaps) of the average citizen of the era when it came to understanding even the common law and why that insufficiency of understanding may demonstrate why a simple “common law” based jurisprudence may not yield proper judicial determinations.


          In Leonard v Texas, Justice Thomas’ opinion relies upon historical practice (among other things) to question the legitimacy of modern civil asset forfeiture laws / practice. In particular, he cites the practice of *in rem* prosecutions vs. “in personam”, in which, as an example, a pirate ship is held to be the defendant and subject to seizure / forfeiture. (Ok, I am simplifying). Thomas also notes that these early Republic era cases were *civil* in nature not criminal.

          But here is the question:

          Can it be said that the average citizen could / would be aware of such a difference between in rem and in personam? I think clearly not. Even today someone such as myself, a person not without some modicum of political / legal curiosity was unaware of this, even If I, like the early ear citizens would intuit the propriety of such a seizure. So, how would it be that a reliance upon the average citizens understanding of the common law / practices be sufficient to reach a proper determination. Justice Thomas seems to have done so – yet, while he may have had access to common law rulings / statutes of the time, it may not be said that he accessed the common man’s understanding of common law. (This is but one example. The authors cite many others).

          So something larger is in play here. I think that McGinnis and Rappaport’s thesis gains support from decisions such as this that recognize that the Constitution is a form of *Supra-Law*, that while generally accessible, and comprehended by, the common citizen, it requires for its full “expounding” recourse to certain legal terms of art, yes, but also something more a faithful application / adherence to those doctrines, methodologies / interpretive schemes that inhere or (you’ll love this) *emanate* from that legal “epistemology.” AND, it also ought not to be subject to change as readily as is common law, a critique of current jurisprudence I have previously made. Their thesis, if practiced would, I think. limit this tendency of the modern judiciary to “make law.”

          So we have both fish and fowl. The Black Robes are provided a limited menu BUT the menu proffered by McGinnis and Rappaport would seem to limit the Black Robes tastes (ambitions) for dessert and would constrain them to the substantive items on the Constitutional menu.

          Hope this makes a “modicum of sense.

          • Devin Watkins says

            It makes sense to me. Several questions here. First, how far does this extend? I don’t believe it is legal understanding of the “average” citizen of the era. Most people then, as today, had little understand of the law (although back then a lot more people understood the law at least partially). Instead what is required is the “reasonable” person of the era (not the average person). This hypothetical reasonable person is a rational person that existed in the environment and understanding common to most people of the era (including language and meaning of words and phrases), but also has the common legal understanding of the era (far more than the average citizen would). I like to think of it as a commoner with advanced legal training. This does not mean that it is the understanding of lawyers or the era, nor judges of the era, nor legislators of the era, merely a good legal understanding of the era by an otherwise normal rational citizen. You must incorporate the legal understanding because of the legal terms included in the document which thereby assumes that it will be read by someone with an understanding of those terms. Other than that you don’t want to make any other assumptions that you don’t have to.

            I don’t think the meaning of the Constitution was meant to change like the common law, but that doesn’t mean that areas within the Constitution cannot have a kind of common law meaning. For instance, admiralty law has always been similar to a common law understanding with judge made law (although we do have some statutes and treaties on it) and specifictly mentioned in the Constitution.

            I think its entirely possible also that the original meaning of “cruel and unusual” meant that it was cruel and unusual at the time it was imposed based on societies understanding at the time of sentencing. In a way, this creates a kind of “evolving standard,” that may be against the idea of “limit[ing] the Black Robes.” But if this is what the Founders really understood the meaning of those words to be, then it would seem to be to violate the Constitution to not allow judges some flexibility in applying the modern understanding. This may not be your ideal system of government (maybe you think it best if judges are more limited), but that doesn’t mean the Founders didn’t believe that.

            Likewise with the Ninth Amendment, I think it is clear that these rights were unenumerated and depended on judges to clarify as applied to specific rights. Do you have a right to raise your children? I think there is a scope of clearly invalid rights (non-natural rights or purely positive rights are not within the meaning of the Ninth Amendment), but even if it is a natural right that doesn’t itself mean that it was protected. It’s possible that the Founders saw it up to common law judging to determine which plausibly natural rights really are protected. After all they all came from an English system in which ALL RIGHTS were entirely unenumerated, they would have seen no problem leaving this up to judges.

            As to today’s era, I did know of the in rem vs in personam that Justice Thomas spoke of (and I think he is exactly right). I actually read many of the early cases in this area. But then I’m a bit unusual having worked at IJ considering civil asset forfeiture cases.

  3. Brad says

    Good point. I just want to add that we see a similar thing re the Constitution. The framers simply left some things which they could not agree on vague. For example, whether Congress can make a bank.
    Actually, now that I am thinking about it, was John Marshall an originalist? To the extent he did use originalism, was it more original meaning or more of original intent?

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