Academic journal article The William and Mary Bill of Rights Journal

A Constitutional Defense of Legislative History

Academic journal article The William and Mary Bill of Rights Journal

A Constitutional Defense of Legislative History

Article excerpt


Textualism preaches two unalterable truths regarding statutory interpretation. First, the judge's proper focus is the statute's text.1 Second, the judge shall not consult legislative history in interpreting that text.2 The textualist method largely rests upon these two pillars.

This Article argues that textualists ignore an equally fundamental aspect of the interpretive enterprise: the inseparability of text and context. That is, a text's meaning becomes determinate only when paired with a specific context.3 For example, consider a sign that admonishes, "Keep off the grass."4 Hanging on the wall of a drug rehabilitation clinic, the sign implores abstention from drugs,5 but when planted in a well-manicured lawn, the sign enjoins passersby from stepping on the turf.6 Pairing the same text with different contexts changes the text's meaning.

The text-context link is so fundamental that, even when words appear in isolation, we must hypothesize a context to make sense of those words. Consider a professor who receives an anonymous note that simply reads, "Drop dead."7 To fix meaning on these words, the professor must pair them with a hypothetical context.8 For example, perhaps a colleague with a sense of humor wrote the note after a fight-hearted disagreement.9 Or, perhaps the note is from a disgruntled former student who received a failing grade.10 Paired with the former context, the note is a joke; paired with the latter context, the note is more ominous. Selecting a hypothetical context selects meaning. Similarly, changing context can alter meaning just as radically as changing text, as every text-context pairing potentially has a different meaning.

Yet, the constitutional argument for textualism drives a wedge between text and context. Consider the view of Supreme Court Justice Antonin Scalia, whose extensive judicial and other writings defend the practice.11 He argues from the Constitution's lawmaking process, noting that only a statute's text passes through the constitutionally-prescribed lawmaking steps of bicameralism (passage by both chambers of Congress) and presentment (delivery of the bill for the President's signature or veto).12 Conversely, legislative history materials, such as committee reports and floor debates, do not pass through bicameralism and presentment. Consequently, only the statute's text, and not its legislative history, is constitutionally enacted "law" entitled to interpretive weight.

This bicameralism and presentment argument is both incoherent and incomplete. It is incoherent because statutory interpretation cannot proceed on text alone - text must be paired with a context. The argument is incomplete because it is silent on the proper context with which to pair statutory text. And this silence is ironic. While textualists like Justice Scalia invoke the Constitution to prohibit consideration of legislative history,13 faithful adherence to constitutional text and structure actually requires such consideration. This disconnect derives from textualism' s misdirected, laser-like focus on the result of the bicameralism and presentment process - statutory text - to the exclusion of the process itself. Yet, the Constitution's text and structure treat bicameralism and presentment as important for its process as well as its result. Thus, legislative deliberation, as reflected in legislative history, is not like so much chafe to be discarded after the final vote.

This Article has two parts. Part I describes the textualist constitutional argument against legislative history in statutory interpretation, focusing on the judicial and other writings of Justice Scalia. Part ? then critiques the textualist constitutional argument and explains how constitutional text and structure actually require judges to consider legislative history when interpreting federal statutes.


Justice Scalia' s rejection of legislative history and corresponding embrace of textualism is most extensively defended in his essay Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws. …

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