Posted by So I’m having a conversation with my buddy Dan this morning about constitutional law and while talking about how a strict formalist would argue that the only part of a court ruling that is truly binding is the court’s holding alone, not the explanation for that holding (or “dicta”), I get this epiphany about the Gonzales v. Oregon assisted suicide case, particularly about Scalia’s dissent. The crux of the case was whether the court must give deference to the Attorney General’s interpretation of a statute or not. Following the passage of Oregon’s assisted suicide law, AG John Ashcroft made a formal ruling interpreting the Controlled Substances Act as prohibiting doctors from prescribing medication for any purpose other than to heal and asserted that this law had primacy over Oregon’s state law allowing doctors to do so.
There was little in the text or history of the CSA itself that indicated that Congress intended the law to apply in this situation. Indeed, the history of the law clearly indicated that its purpose was to stop the illicit trafficking in drugs. The majority of the court decided that the AG’s interpretation did not deserve deference from the court because it conflicted with their reading of the text and intent of the CSA. Scalia filed a dissent arguing that the court should have given full deference to the AG’s interpretation of the statute.
But here’s where the contradiction comes in: Scalia is on record as being strongly opposed to the court giving deference to legislative intent by looking at the legislative history of a law. He has forcefully argued that the only thing the court should look at is the text of the bill itself, not the debate leading up to it or statements of intent or meaning from those who wrote it, even if there is a dispute about the Congress’ intent in a particular passage. As one source notes:
Scalia’s “textualist” approach to interpreting the Constitution and statutes is reflected in his skepticism about the utility of legislative history materials, such as committee reports or the remarks of members of Congress on the House or Senate floor, to determine the meaning of a statute. Scalia thinks that the only legitimate interpretive guide is the text of the statute or related provisions of enacted law that shed light on the meaning of the disputed text. In a March 1992 opinion concurring in the Count’s more lenient reading of an ambiguous criminal statute, he sternly rejected the majority’s reliance on the statute’s legislative history. “The only thing that was authoritatively adopted for sure was the text of the enactment; the rest is necessarily speculative,” he wrote.
But this puts him in the rather bizarre position of arguing that when we are attempting to discern the correct interpretation of a statute, we cannot even consider the statements of the legislators who wrote the statute – but we must defer to the interpretation of the law made by an attorney general 30 years later even if it is in conflict with the clearly stated meaning of the text at the time it was passed. This is highly absurd.
The other contradiction on this matter, of course, is that while claiming that legislative history is irrelevant, Scalia still uses that history when it suits his purposes. In Edwards v Aguillard, for example, he dissented solely on the basis of the Louisiana legislature’s assertion that the purpose of the creation science bill was not religious. He wrote in his dissent:
The Louisiana legislators who passed the “Balanced Treatment for Creation-Science and Evolution-Science Act” (Balanced Treatment Act), each of whom had sworn to support the Constitution 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,” that the members of the Louisiana Legislature knowingly violated their oaths and then lied about it. I dissent.
I think this makes very clear that Scalia is neither an originalist nor a textualist except when it suits his purposes. When it does not lead to the outcome he wants, he steps into the phone booth, changes clothes, and emerges as a legal realist. Which does not, of course, prevent him from then giving speech after speech condemning legal realists and proclaiming the wisdom of textualism.
January 27, 2006
January 27, 2006
January 27, 2006