Judges in the United States must interpret statutes and constitutions. Largely because these texts are framed in the English language, a language shared by legislators, judges, and other citizens, judges employ sufficiently common techniques to sustain a coherent practice. Lawyers can often say with some confidence how judges will construe particular legal provisions, and, when they have serious doubts, they can sketch the likely alternatives. But we are now in an era of sharp theoretical disagreement over what judges do when they interpret authoritative texts.
In difficult cases of statutory interpretation, are judges mainly trying to give language its ordinary significance, to discern the intent of legislators, to carry out broad legislative purposes, to legislate in the interstices, to make statutes the best they can be in some complex sense, or to perform yet some other task or tasks? Similar questions arise with constitutional interpretation. Disagreement exists regarding the soundest way to conceptualize what judges do and what they should do. Scholars further disagree about the practical relevance of extrinsic evidence as to what legislators or the Constitution's adopters meant to accomplish. A central issue both for conceptualization and for possible use of legislative history is the significance of discoverable attitudes of legislators about what they adopted.
Constitutional Law | Law
Are Mental States Relevant for Statutory and Constitutional Interpretation,
Cornell L. Rev.
Available at: https://scholarship.law.columbia.edu/faculty_scholarship/3501