Should Judges Read Minds or Just Read the Words?
The Case of the Gun-Trading Drug Dealer
Imagine a man named Smith. Smith wants to buy cocaine but doesn’t have enough cash. So he makes a deal: he offers his gun as payment. A federal law says if you “use a firearm” during a drug crime, you get a much longer prison sentence. Smith was convicted and got extra time. But did he really “use” a firearm?
One judge, Justice Antonin Scalia (1936–2016), a famous champion of textualism, said no. He argued that when your friend asks “Do you use a cane?” they are asking whether you walk with one, not whether you keep one as a decoration. In everyday English, you “use” a gun by firing it or threatening someone with it — not by trading it like a pack of baseball cards. Other judges disagreed.
This real case from 1993 is not just a fight over a word. It is a perfect snapshot of a much bigger war. For decades, judges and philosophers have been arguing about the most basic question in all of law: when you read a law, what are you actually looking for?
Three Different Treasure Hunts
Before anyone can argue about the “best” way to read a law, they need to agree on what the goal is. If I send you on a treasure hunt, you need to know whether you are digging for gold coins, an old pirate chest, or just a pretty shell. The same is true for legal interpretation — the job judges do when they figure out what a law requires.
Philosophers point to three very different goals a judge might have.
First, she might be hunting for the linguistic meaning of the text — what the words themselves say, the way a dictionary captures what “bicycle” means, regardless of who said it or why.
Second, she might want the best resolution of the dispute — not just what the law says, but what would be fairest for everyone, what would prevent future harm, and what would make the most sense all things considered.
Third, she might be trying to find a provision’s contribution to the content of the law — a mouthful, but stick with me. This means asking: when lawmakers passed this statute, how did it actually change our real legal duties? What new rule did it successfully add to the huge invisible rulebook we all have to follow?
Which goal you pick changes everything about what counts as a good method. If you want linguistic meaning, you probably should not care whether the outcome is fair. If you want the best resolution, you might ignore what the words literally say. And if you want the real legal rule, you need to figure out where that rule even lives — in someone’s head, or in the public words they wrote down.
The Mind-Readers: Intentionalism
The oldest and most intuitive approach is intentionalism. The idea is simple: laws are made by people, and people have reasons for what they do. When a law is confusing, shouldn’t we just ask what the lawmakers actually meant? This feels democratic. Congress is elected by the people. Judges, appointed for life, should be faithful servants of those elected representatives, not invent new rules.
But this idea runs into three massive problems — call them the metaphysical, existential, and epistemic problems.
Start with the metaphysical problem. A “legislature” is not one brain. It is five hundred people, or in the case of a constitution’s framers, many groups of people spread across different conventions. They fought, compromised, and often voted for the same words for completely opposite reasons. If half the senators thought a law banned only harmful discrimination and the other half thought it banned any mention of race at all, what was the “collective intention” of the group? It is not obvious that a group mind even exists.
Next is the existential problem. Even if we could solve the puzzle of what makes a group intention real, did one actually exist? Many lawmakers never read the bills they vote on. They trade votes, follow party leaders, or focus on one small section. On a specific, controversial detail — the very thing judges argue about — most legislators probably had no intention at all. The law’s final wording was often a verbal compromise designed precisely so both sides could imagine it meant what they wanted.
Finally, the epistemic problem — the problem of knowing. Suppose a real collective intention did somehow exist. How would we find it? We can’t put the whole of Congress on a couch and psychoanalyze them. Diaries are private. Speeches are often performances for voters, not honest confessions. The whole point of a public text is that it is public.
A modern relative of intentionalism is purposivism. Instead of asking what specific rule lawmakers actually intended, it asks what purpose a reasonable person would attribute to the law, assuming the legislature was made up of sensible people pursuing sensible goals. In a famous old case, a church tried to hire an English minister, but a statute seemed to ban importing any foreigner to perform “labor or service of any kind.” The Supreme Court ignored the literal, sweeping words and said the statute’s purpose was only about manual workers, not clergymen. Purposivism gives judges flexibility, but it also asks them to pretend the messy, real Congress was a wise, single-minded philosopher — which it rarely is.
The Text Trusters: Textualism
In reaction to the mind-reading mess, a powerful rival school emerged: textualism. The core principle is that the text comes first, last, and always. The law is what was written down and voted on, not what someone secretly hoped it would do. Justice Scalia put it bluntly: it is unfair in a democracy to have the meaning of a law determined by what the lawgiver “meant” rather than by what the lawgiver “promulgated” — what was actually printed and shown to the public.
Modern textualists do not simply grab a dictionary and stop thinking. They insist on a “reasonable reading in context.” Scalia himself used the cane example to show that ordinary language is not robotic — we all understand context matters. But this creates a hidden problem for textualism.
If a judge is trying to find the “reasonable” meaning, reasonable for what purpose? In a normal conversation, being reasonable means trying to figure out what the other person intended to communicate. If your mom says “it is getting late,” a reasonable interpretation is that she wants you to go to bed, even though she didn’t say those exact words. But textualists are extremely skeptical that we can know, or that there even exists, a complex group intention behind a statute. So what is the “reasonable” reading supposed to be reasonable about?
Some textualists try to solve this by appealing to an imaginary speaker. They ask: what would a reasonable person, back when the law was passed, have understood these words to mean? This creates an objectified meaning — not what the real lawmakers had in their heads, but what the public would have thought. This is a neat trick, but it raises a new question. Why should the fiction of a reasonable old-time reader control the law today? Answering that requires a much deeper argument about what makes a law real in the first place.
Where the Law Actually Lives
So which side is right? The surprising answer from modern philosophy is that you cannot answer that until you decide what the law fundamentally is — a theory of law.
Consider H.L.A. Hart (1907–1992), the most famous legal philosopher of the last century. Hart argued that the ultimate foundation of any legal system is a rule of recognition — a shared, unwritten social practice among judges and officials about what counts as law. If judges all consistently treat statutes as contributing to the law by their plain dictionary meaning, then that is simply what the law is in that place. But if judges are deeply and permanently split — some looking at intentions, some at plain text, some at fairness — then Hart’s theory implies a shocking conclusion: there might be no single correct answer. The law itself might be indeterminate on many of the questions that reach the highest courts.
This is why you often see judges arguing about democracy and fairness, not just about the dictionary. They are, perhaps without realizing it, making an argument about where the law must live. A rival theory, associated with Ronald Dworkin (1931–2013), says the law is not just about what judges happen to agree on. Instead, the law is the set of principles that best justifies everything the government has done — the principles that make the legal system the best it can be. In that case, a judge should interpret a law to make it as morally coherent as possible.
Another view, the moral impact theory, suggests that a statute’s contribution to the law is simply the real moral difference that the statute’s enactment makes in the world — the new moral obligations it creates. If that is true, then arguments about fairness and democracy are not distractions; they are the only way to figure out what the law really is.
This is the deep secret of the fight between the mind-readers and the text-trusters. They are not just arguing over a method. They are arguing over what kind of thing a law is.
Why the Fight Matters for You
You will probably never be convicted for trading a gun for cocaine. But the question of how to read rules is everywhere in your life.
When your school handbook says students may not wear “disruptive clothing,” is the rule just the words on the page, or is the rule whatever the principal actually intends to ban? When a sign at the park says “no vehicles,” does that include a toddler’s tricycle? What about a motorized wheelchair?
The fight between sticking to the public text and asking what the rule-makers really meant is not just a dusty legal debate. It is a fight about fairness, about warning people before you punish them, and about whose secret thoughts actually control our lives. Every time a law is passed — even a simple one about skateboards or curfews — the argument Scalia and his critics started is waiting right there in the words.
Think about it
- If your teacher says “no phones in class,” but you use your phone to finish a math assignment, should the teacher punish you if her unspoken purpose was just to stop texting? Is it fair to be punished for violating a purpose you didn’t know about?
- If a group of friends writes a list of rules for a secret club, and years later they disagree about what a rule means, should they vote on its meaning today or try to travel back in time and guess what they originally meant?
- If a politician promises to “fix the roads” during a campaign and gets elected, do we hold them to what those words mean to the average voter, or to a specific complicated plan they had secretly imagined?
