Dispatches from the Creation Wars

Scalia and Legislative History

In perusing Heidi Bond’s reports on the speech and Q & A session that Scalia held last week at the University of Michigan, one thing jumped out at me. I’ll post this just as she wrote it, but keep in mind that these are live blogged notes, not a written out report or a transcript:

Says he’ll say a few words about something other than originalism. Says that he thinks he’ll lose it; “it’s a hard sell to tell people that the Constitution doesn’t mean whatever it ought to mean.” “My other great cause is. . .the elimination of the last legal fiction in. . .our law: the use of legislative history to figure out the meaning of the statute.” He never uses it. He thinks that this is on his side b/c of laziness — legislative history doesn’t make any difference.

- not in principle: “discern intent of law-giver” — but is that what it means to have government of laws not man? Like (Some person) who posted edicts high on pillars so people can’t read them, so they’d violate them. We care only about what they say, not about what they want.

- but if you think inner intent is what we want, why look at legislative history? US government isn’t a person. Not a person, or a house of congress. And besides, nobody listens to the whole thing — they’re in committee meetings. Just watch C-SPAN. So why does the floor speech mean anything?

- Not using legislative history as much as they used to. He hopes this can be attributed to him. Used to be worse (40%?) of opinion? Anecdote about case when he was a new justice committee report saying “interpret as S.D.N.Y.” But Congr. hadn’t read the cases; so S.Ct. is on its head, trying to figure out how to interpret District Ct.

- Finally, large part of the job of Washington lawyers is to “create” legislative history, inserted into committee report. “Why in the world anyone would think that this is the sense of the whole Congress I will never know. Now you could argue” as does Breyer “that Congr. understands that the details are left to be filled in by their Committees.” Think about this: legislative power is not delegable in this way. Same as judicial authority. “I can let my law clerks lead me around by the nose, but I’m the one who has to sign my opinions.” Executive power is delegable, but judicial & legislative powers aren’t. Plus it’s only one house.

(H’s comment: this is a good argument).

- “Liberals seem to like the use of legislative history more than conservatives . . . but why it would be attractive to a liberal, I cannot understand.” This is because legislative history rigidifies the law; w/o history, it’s ambiguous.

Why create greater ossification in our statutes? Legislative history reduces # of possible interpretations, plus it’s a total fiction.

This seems to indicate that Scalia is quite opposed to looking at legislative history in order to determine either the intent or meaning of a bill. Yet compare this to Scalia’s dissent in Edwards v. Aguillard, the ruling that struck down a Louisiana law requiring equal time for creationism and evolution. He begins his dissent by looking solely at the legislative history and intent on the part of the Louisiana state legislature:

Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today’s decision. The Louisiana legislators who passed the “Balanced Treatment for Creation-Science and Evolution-Science Act” (Balanced Treatment Act), La. Rev. Stat. Ann. @@ 17:286.1-17:286.7 (West 1982), each of whom had sworn to support the Constitution (1) were well aware of the potential Establishment Clause problems and considered that aspect of the legislation with great care. After seven hearings and several months of study, resulting in substantial revision of the original proposal, they approved the Act overwhelmingly and specifically articulated the secular purpose they meant it to serve. Although the record contains abundant evidence of the sincerity of that purpose (the only issue pertinent to this case), the Court today holds, essentially on the basis of “its visceral knowledge regarding what must have motivated the legislators,” 778 F.2d 225, 227 (CA5 1985) (Gee, J., dissenting) (emphasis added), that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent.

Unless I’m missing something, this looks a lot like a glaring inconsistency to me. Am I missing something, legal scholars?

Comments

  1. #1 Ruidh
    November 26, 2004

    That’s what you should expect from one of the biggest juducual activists on the bench today. Perhaps only Justice Thomas has less respect for stare decisis than Justice Scalia. Any argument which supports his preconceived notions is in bounds.

  2. #2 Ed Brayton
    November 26, 2004

    That’s what you should expect from one of the biggest juducual activists on the bench today. Perhaps only Justice Thomas has less respect for stare decisis than Justice Scalia. Any argument which supports his preconceived notions is in bounds.

    I guess I don’t buy that notion of judicial activism either. I’m not a big fan of stare decisis. A ruling that was wrong should not be considered any different merely because it hasn’t been overturned in the past. If it’s wrong, it’s wrong.

  3. #3 raj
    November 27, 2004

    Slavish devotion to stare decisis is probably wrong, but stare decisis does have its uses. Most court decisions are not as monumentally wrong–from a legal standpoint, that is, irrespective of their morality–as the Dred Scot decision and Plessy v. Ferguson, for example.

    Most court decisions are directed to construing statutes or common law, and, even if the courts get the construction wrong, they have established baselines that people can use to guide their behavior. And, if the legislature does not deem it worth its while to correct the court’s construction–which it could do, since most construction does not involve constitutional issues–then the legislature essentially has acquiesced to the court’s determination. On the other hand, without stare decisis, one might get one court decision construing a statute one way, and another decision construing the statute another way, and yet another decision construing the statute another way. That would be no help in providing “baselines” that people can use to guide their behavior.

  4. #4 DannyNoonan
    November 27, 2004

    It’s been a while since I looked at this case but if I recall correctly, Scalia is looking at legislative intent because he is applying the Lemon (from Lemon v. Kurtzman) test to determine whether a statute is in violation of the Establishment Clause. The first prong of the test is that the legislature must have adopted the law with a secular purpose. He can not apply this test without looking at the legislature’s purpose in adopting the statute. In fact, he did not want to apply this test. The first sentence of his dissent is this:
    “Even if I agreed with the questionable premise that legislation can be invalidated under the Establishment Clause on the basis of its motivation alone, without regard to its effects, I would still find no justification for today’s decision.”
    It seems from this statement that he reluctantly applied the test after noting that he does not like to look at legislative intent.

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