In the New York Review of Books, Justice John Paul Stevens: Law without History? (reviewing [favorably] Judge Robert Katzmann's Judging Statutes (Oxford 2014). But actually the review is an extended attack on Justice Scalia's view of statutory interpretation, particularly his rejection of legislative history.
Josh Blackman comments here: Stevens: Scalia is a Textualist Because He is Trying To Promote The Non-Delegation Doctrine, Notwithstanding Whitman v. American Trucking.
Two thoughts:
(1) Again, when it comes to statutory interpretation, everyone's an originalist (or at least everyone claims to be). The argument between Stevens/Katzmann and Scalia would — if they were talking about the Constitution — be an intramural fight among originalists: how much to weight framers' intent, reflected in non-textual sources, versus the original meaning of the text? As Stevens puts his position, paraphrasing Katzmann, "it is appropriate [to use legislative history] to seek to understand the intent of Congress [that is, the enacting Congress] when confronted with vague or ambiguous statutory provisions." Well, sure, then is it not appropriate to use drafting and ratifying history to seek to understand the intent of the framers when confronted with vague or ambiguous statutory provisions?
(2) As to Scalia's view, and contra Stevens, I have a hard time seeing it as founded on a broader theory of law such as non-delegation (other than perhaps rhetorically). Obviously Scalia uses drafting and ratifying history — the constitutional counterpart of legislative history — to understand the meaning of the Constitution. Rather, I think his concerns are methodological and practical.
On method, Scalia's view (which I share) is that undue focus on the enactors' "purpose" shifts the inquiry from what the text means to what would be a reasonable rule (because surely the enactors were reasonable). And that in turn shifts the inquiry — in practice, although without admitting it — to what the judge thinks is best (because surely the judge is reasonable, and thus what he believes is probably what the enactors believed). Focus on the text, to the contrary, keeps the inquiry centered on what was actually enacted and not what seems reasonable to any particular person.
But this isn't an argument against using legislative history (for statutes or the Constitution); it's just an argument for using it carefully, to aid in finding the meaning of the enacted text and not as a substitute for the enacted text. In this sense, Scalia's absolute rejection of legislative history for statutes (but not for the Constitution) is an overreaction — perhaps well justified — to prior modes of statutory interpretation that had lost touch with the text almost entirely.
The second objection is practical — in Scalia's view, modern legislative history is simply not helpful in finding the meaning of a statute because it is so extremely unreliable and subject to manipulation. This is a core point underlying Scalia's different treatment of statutory and constitutional legislative history. When the Constitution and key amendments were adopted, the legislative history was relatively simple and straightforward. It can be taken more-or-less at face value, adjusting for the known biases of the easily identifiable people who contributed to it. In contrast, modern legislative history is generated in such an opaque process, and runs to such great length, that no one can really know where ti came from or what is in it until it comes time to pick through it for a helpful excerpt.
Whether these considerations call for a complete rejection of modern legislative history, or only for extremely cautious use, can be debated among textualists. I am doubtful, though, that any philosophical commitment of textualism (including Scalia's textualism) requires the total rejection of legislative history.
RELATED: Norm Ornstein comments on textualism and Judge Katzmann's book in The Atlantic: How Activist Judges Undermine the Constitution. Again note that he is a statutory originalist, seeking the understanding of the framers (enactors), although he would look to their purpose and intent rather than just their enacted words.
Posted at 6:28 AM