The Wild Side of Statutory Interpretation

Over the past few years, textualism has not only become fashionable, but swept the legal world by storm under the leadership of Justice Antonin Scalia and his faithful sidekick, Bryan Garner. The gist of their view is that the specific language of a statute is not only all that’s needed to interpret it, but all that’s permitted.  The use of legislative history as a tool in getting to “the intention” of a law is wrong, as it’s merely a “meaningless front for lawmakers to grandstand.”

It’s hard to muster a counterargument to that.  Yet, Second Circuit Chief Judge Robert A. Katzmann does, offering in his own book, Judging Statutes, support to the view that legislative history still has a role in statutory interpretation.

David Lat at Above the Law gives a recap of Judge Katzmann’s interview at Yale Law School and provides a listicle (because ATL readers adore listicles) of the five takeaways. Not entirely surprisingly, he begins with a rousing homage to Scalia:

Textualists like Justice Antonin Scalia oppose the use of legislative history in statutory interpretation, arguing that “[w]e are governed by laws, not by the intentions of legislators…. The law as it passed is the will of the majority of both houses, and the only mode in which that will is spoken is in the act itself.” Opponents of using legislative history argue that it can be manipulated, abused, and quoted selectively. As one judge famously put it, relying on legislative history is like “looking over a crowd of people and picking out your friends.”

Not a great start for Katzmann, who gets just about as tepid a response as possible.

But legislative history can be useful at times, according to Judge Katzmann — especially the most reliable or authoritative forms of it, which he identified as the committee reports, conference committee reports, and statements of floor managers. Looking at these sources can be helpful sometimes when interpreting a statute — and, thanks to the rise of the internet, accessing these materials is easier than ever (i.e., you don’t need a Westlaw or Lexis subscription). So why should one adopt a per se rule against consulting legislative history?

It would seem the answer to the “why” question was the preceding paragraph, and a damn good answer it was.  But Lat marches on:

Within legal circles, legislative history is often viewed as a partisan issue because opposition to its use has been led by prominent conservatives like Justice Scalia. But as Judge Katzmann noted, if you talk to members of Congress you’ll find both Republicans and Democrats who emphasize the importance and value of legislative history. Legislators and their staff members put significant time and effort into crafting legislative history, and they want these materials to be read and used.

The argument is that legislators and their staff “put in significant time and effort”? Se we should use lege history so their feelings aren’t hurt?  They want us to emphasize their names and brilliant words? They want to be relevant?

Perhaps if they put that time in the language of the law, the need for interpretation would be reduced and they would be relevant, but this sounds like nothing more than self-serving narcissism. Of course legislators want their words to ring across the land. Nobody in Congress doesn’t think they’re fabulous. But this has nothing to do with either the value of lege history, but with the very problem Scalia decries.

Often a piece of proposed legislation won’t get passed the first time around, and the legislative history can be useful in seeing what was or wasn’t addressed or agreed upon when the proposed law gets revisited. Legislative history might be crafted with an eye to being read by constituents as well.

Does tracking statutory language changes reflect some deliberate purpose on the part of Congress, or horse-trading, circumstances, the last mid-term election? The problem is that we don’t know what it reflects. We don’t know if a phrase was added or removed to buy the support of some Senator who gets migraines whenever thought is required, but loves kissing babies too much.  We don’t know. So we can either impute grand purpose to changes that have no good purpose at all, or just go by the words that ended up on the page after the sausage was made.

Nobody denies the primacy of the statutory text when interpreting and applying laws; as one attendee noted during the audience Q-and-A, “we are all textualists now.” That said, there is a long history of using extrinsic sources to interpret statutory text, as Judge Katzmann noted. Even hard-core textualists like Justice Scalia will consider such things as the overall structure of a statute, dictionary definitions of words, and statutory drafting history (i.e., the different versions of statutory language that were proposed but not enacted).

The possibility that legislative history can be abused doesn’t mean it’s without value.

While it’s true that there is a long history of using extrinsic sources for statutory interpretation, the point of Scalia’s position is that we’ve been wrong to do so.  Indeed, having been raised on a law school curriculum that embraced legislative history as a worthwhile means of statutory interpretation, it simply was a piece of the puzzle to be used.  And use it I did, when and if it served my purpose.

If one parsed the lege history long enough, there was almost always some grandiose language that would back up an interpretation.  Of course, reading it is like reading an unbearably long fortune cookie, with platitude after platitude without any depth of thought.  If you enjoy listening to political speeches, you’ll love researching legislative history.

But that shows the efficacy of Scalia’s point, that it’s a lot of untrustworthy words that allow an advocate to spin his interpretation without any real basis to show that anyone, not even the pol uttering the words, actually believed them or cared.

It’s not necessarily to say that Judge Katzmann doesn’t have a point that lege history can be of value, but that’s a long ways from it providing a legitimate foundation for statutory interpretation.  Or more to the point, no amount of lege history is going to compensate for a poorly written law.

8 thoughts on “The Wild Side of Statutory Interpretation

  1. John Barleycorn

    If only “poorly written law” were actually an oxymoron.

    If legislators drank and sang more during committee meetings and floor amendments I think there might be something to this, but alas they don’t.

    Oh well, the real legislative history nuggets are to be found in the wire taps of K Street anyway. But I don’t think folks are ready for those tapes to be released just yet. That might even bust Antonin’s bubble.

    What are you going to do when “shall issue” turns out to be “may issue” in the version the gets signed?

    Laws, laws…
    more laws.

    All we needs are laws
    I didn’t make um…

    I only break um.

    We really don’t need-
    no-more stinking laws.

    https://m.youtube.com/watch?v=hZhuuoWENeQ

  2. bacchys

    I’ve long thought Scalia had the right of it. Extrinsic sources such as the legislative history are useful in comprehending any terms of art in the legislation, but shouldn’t be confused with the legislation itself.

    An example occurred in Maryland in the ’90s. Under the guidance of then-Governor Glendenning, the legislature passed a “trigger lock” gun law. By the text of the legislation, any firearm with a safety qualified as having a trigger lock. The legislators who had crafted the law knew so little about guns they failed in crafting the language. Supporters of the law urged the state courts to interpret it IAW the intent of the Gov. and the legislature, but fortunately the Court of Appeals (Maryland’s highest court) declined the opportunity. As they put it (though in far more words), it wasn’t their job to clean up the legislature’s mess.

    The Ledbetter case is also one on point. Congress passed a law. A dispute over it reached SCOTUS. A lot of folks were angry at SCOTUS for coming to a conclusion they didn’t like because that’s what the law said. They wanted SCOTUS to read the law to produce outcomes they like. Instead, Congress ended up changing the law. That, it seems to me, is what due process actually requires.

  3. ExCop-LawStudent

    At some point in the future, assuming that I pass the bar, the only concern I have as to texualism is does that help my client’s case? If not, then I imagine I would be committed to what the history showed. I mean, sure, we need to know the tendencies of the judge we are before, but aren’t our arguments going to be directed by the facts and how to best apply the law to those facts to help our client?

    1. SHG Post author

      Of course you will use lege history, as will every other lawyer who will find whatever he can to further his client’s case. If that’s what’s there, that’s what we use, together with every other legitimate means available. And when we do, it will be that rare time that it is true, accurate and appropriate.

  4. Michael Drake

    FWIW, I think William N. Eskridge, Jr., The New Textualism and Normative Canons, 113 Colum. L. Rev. 531, 560–67 (2013) provides a pretty sound rebuttal to Scalia-Garner on the use of legislative history. More generally the article’s a pretty good rebuttal to Scalia-Garner’s overall project. Plus, it’s just plain interesting. House rules here prohibit a hyperlink, but an un-paywalled PDF of the paper is available on the interwebs…

    1. SHG Post author

      As I recall from reading Eskridge’s law review article, his beef was largely with Scalia/Garner’s canons of textual interpretation (which are rife with conflicts that call for normative application, which ends up with the same bias issues they disdain).

      But as for lege history, he doesn’t do much to challenge the notion that it’s just grandstanding, fails to necessarily reflect the understanding of legislators who voted for it, and doesn’t overcome the problem with lousy drafting that may suffice for lawmakers but is inadequate for courts to apply, leaving it to judges to make the hard calls that the legislators either couldn’t be bothered to, or weren’t able to, make.

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