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?