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.