Tax shelters and the Code: navigating between text and intent

Virginia Tax Review, Spring, 2007 by Steven A. Dean, Lawrence M. Solan

Justice Scalia dissented, arguing that the "ordinary meaning" of "use a firearm" means to use it as a firearm, not merely as a thing of value. (20) He, too, was correct. When we use the expression "use a firearm" we typically have in mind using it for its intended purpose. Smith illustrates an important point. Both the majority and dissent claimed fidelity to the intent of the legislature. (21) They both sought to discover that intent from the language of the statute. Yet they disagreed on what that intent was because it is possible to draw various inferences from the language, depending upon whether one asks about the outer bounds of the language or the most likely intended meaning. Thus, even those who claim to rely on a statute's language and to reject legislative intent recognize that they actually rely on language in order to ascertain intent.

Smith also illustrates how little difference there is between the textualists and those who purport to concern themselves more with context. Since his appointment to the Supreme Court in 1986, Justice Scalia's "new textualism" (22) has been seen as a challenge to an intent-oriented approach to statutory interpretation. Yet consider Justice Scalia's rationale for using the "ordinary meaning rule," which is a prominent part of his jurisprudence:

  The question, at bottom, is one of statutory intent, and we
  accordingly "begin with the language employed by Congress and the
  assumption that the ordinary meaning of that language accurately
  expresses the legislative purpose." (23)

Scalia's reasoning is probabilistic: It is a fair bet that Congress, in enacting statutes, would typically have in mind the prototypical meanings of the words it uses. By adopting this assumption, one can concern oneself with the intent of the legislature without ever looking outside the language of the statute.

The courts frequently take ordinary meaning into account, often as a surrogate for legislative intent. (24) For example, Small v. United States, (25) decided by the Supreme Court in 2005, construed a law that makes it "unlawful for any person ... who has been convicted in any court, of a crime punishable by imprisonment for a term exceeding one year ... to ... possess ... any firearm." (26) Gary Small had served a prison term in Japan after having been convicted there of weapons charges. The question was whether the statute bars those who have been convicted in foreign courts from owning firearms or whether "in any court" should be understood to refer to federal and state domestic courts. The Court relied on ordinary usage to limit the statute's scope to those who have been convicted in American courts: "We should apply an ordinary assumption about the reach of domestically oriented statutes here--an assumption that helps us determine Congress' intent where Congress likely did not consider the matter and where other indicia of intent are in approximate balance." (27)

Textualists and intentionalists alike also make use of arguments based upon coherence to interpret statutes. Justice Scalia opines: