The U.S. Supreme Court's racist decision in Dred Scott v. Sandford, 60 U.S. 393 (1857), a law student's controversial recent paper, and the pending birthright citizenship case all involve attempts to limit the applicability of general rules by pointing to the intent with which they were supposedly written.
If a legal rule is truly ambiguous, the intent with which it was written can help courts interpret it.
"Legislative history" tries to ascertain the intent of the legislators who wrote it.
Using legislative history to interpret words which are clear and unequivocal, however, is illegitimate, especially when supposed legislative intent is employed to make a general rule apply only in some cases.
Generality, after all, is the essence of genuine law.
A genuine legal rule must apply to anybody taking the action it prohibits.
This writer calls rules that single out particular categories of people “pseudolaws,” not genuine laws.
A notorious example of a pseudolaw: Blacks must ride in the back of the bus.
A paper narrowing the meaning of general language on the basis of legislative intent was recently written by a law student at the University of Florida.
Preston Damsky argued that "We the People" in our Constitution's preamble was intended to refer only to white people.
The paper urged that non-whites should be stripped of their right to vote.
The student got an award for being the best student in the class, with his paper being a major factor in the award.
Not having read it, I'm in no position to agree or disagree with the instructor's evaluation. And the student could be right about what the Founders meant.
However we should never use the alleged intent of legislators who wrote a clear, unambiguous generalization like "We the People" to narrow the meaning to "We, some of the people."
It is distressing when a student makes such an argument, but it can be disastrous when courts do so. In Dred Scott v. Sandford the Supreme Court ruled that Blacks had no right to sue and could not be citizens.
It based this decision on its conclusion that "the general terms used in the Constitution . . . as to the rights of man and the rights of the people" were not intended to include Blacks.
Dred Scott also applied similar reasoning to the Declaration of Independence's proclamation that "all men are created equal." Chief Justice Roger B. Taney, writing for the Court, admitted that these "general words . . . would seem to embrace the whole human family."
But, he continued, the Declaration's drafters could not possibly have intended their general words to be taken generally.
The Civil War soon followed.
Taney was probably right that the general language in question was not intended to be taken generally. But this writer would argue that because generality is the very heart of genuine law, supposed intent of the legislator should never be used to interpret general language in a way that is not general.
Otherwise, we would have pseudolaws in fact disguised as genuine laws. If legislators want to enact pseudolaws, they should be forced to enact these abominations overtly.
One might hope that Dred Scott case "logic" would no longer be acceptable.
And we might think that despite the law student's award, there is no danger of similar thinking becoming "law" today.
Unfortunately, the pending birthright citizenship case rests in part on exactly the same arguments articulated by the student and by Chief Justice Roger B. Taney.
The Fourteenth Amendment includes the following unequivocal language, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside."
The people challenging birthright citizenship claim that this general language put into the Fourteenth Amendment was intended only to overturn Dred Scott v. Sandford and confer citizenship on the freed slaves.
They argue that this general language should therefore be interpreted to not mean what it says.
The drafters of the Fourteenth Amendment knew how to write language limited to granting citizenship to the freed slaves, and they did not choose to do so.
But whatever the intent of the Fourteenth Amendment's authors, the citizenship clause is clearly stated general language and the intent with which it was written should therefore be considered legally irrelevant.
If birthright citizenship is overturned by our supposedly conservative Supreme Court, after 158 years of literal application of the words in the Fourteenth Amendment, it will be one of the biggest insults to the rule of law in American history.
Paul F. deLespinasse is Professor Emeritus of Political Science and Computer Science at Adrian College. Read more Prof. Paul F. deLespinasse's Insider articles — Click Here Now.