The Ultimate Post-Enactment Legislative History: Asking the Lawmakers What They Thought, 30 Years Later

Professor Jack Chin, who I met at the University of Arizona Aspiring Law Professors Conference, posted a fascinating note on PrawfsBlog.

Use of legislative history is famously controversial for purposes of statutory interpretation.   But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting.  I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965.  No one doubted that the Act removed racial and ethnic bars from an immigration policy that until then preferred whites, but many commentators called the subsequent racial diversification of the immigrant stream, and therefore the browning of America, as a classic unintended consequence, which, if it had been anticipated, would have killed the reform. Theodore H. White called the Act “noble, revolutionary and probably the most thoughtless of the many acts of the Great Society.”  I read the legislative history of the Act as reflecting principled anti-racism (and therefore at least acceptance and possibly encouragement of non-white immigration) that might have been expected of many of the same people who passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  But I also thought it would be interesting to check in with some of the drafters of the Act decades later.

There is always the risk that they would not remember correctly, or that they would shape their memories to satisfy the expectations of a subsequent generation.  Nevertheless, what they said supported my thesis, saying they thought non-whites had been treated unfairly under prior immigration policy.  In my view, these claims were credible because they were consistent with what they said in 1965.

Professor Chin includes a picture of a letter from President Ford, who was the House Minority Leader in 1965.

This is a pretty cool example of politicians explaining the contents of the bills they write, but is probably one of the least reliable forms of post-enactment legislative history. Assuming President Ford’s memory served him well, he wrote this letter 30 years after the Bill was passed. It is highly unlikely that he would remember the details of the legislative bargains, how different interest groups felt about the bill, and what anyone, other than himself perhaps, may have said. Further, his opinions that formed after the enactment of the bill may influence his recollection. All of the usual benefits of legislative history are diminished.

To the extent that the letter from President Ford confirms the 1965 legislative history, which I think it did in this case, the letter is relevant. But if President Ford’s recollection conflicted with the legislative history from the time, where would that leave you? Which to believe? Certainly the legislative history from 1965, and not the letter from 1996. So in essence, these kind of post-enactment statements by the legislators have meaning only so far as they agree with the original statements. If they disagree, they will likely be disregarded. But if they agree with the original statements, what is their purpose?

A common tact by legislators is to submit amicus briefs in cases dealing with the statutory interpretation of a statute they enacted. In Rapanos v. United States, 547 U.S. ___ (2006), nine key legislators (6 Democrats and 3 key Republicans) submitted a brief explaining their view of how the statute should be interpreted. Ultimately, the Supreme Court rejected these views. Was this the correct outcome? Shouldn’t legislators be in the best position to explain the law they enacted? See also, See Blanchette v. Connecticut General Insurance Corp, 419 U.S. 102 (1974) (relying on statements made by Representative at oral arguments as evidence the Act did not withdraw Tucker Act as remedy for just compensation).

See my thoughts on legislative history and statutory interpretation in this article, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose.

Update: Yaakov R. sent me this cool story from the Western Standard, titled The Framers Revolt . The article interviewed the premiers who signed Canada’s charter of rights and freedoms in 1982, and asked them what they thought of the way it had subsequently been interpreted:

Twenty-three years after signing the charter, surviving premiers have something to say about the way their creation is being used by politicians and the court.

Now the surviving framers of 1982’s Constitution Act, which includes the charter, have themselves weighed in on the debate. And what do they think about the way their creation has been used to so substantially shape Canadian policy over the last 23 years? Of the 11 first ministers who participated in the final, two-year marathon of bargaining that ended a half century-long impasse over patriation of the Constitution, seven are still around. All were contacted for this story, and five responded. Of those, nearly all testified that the courts have done things in the name of the charter that astonish and in some cases infuriate them. They fear for the future of responsible government in Canada. All five agreed the balance of power rests on the political rehabilitation and prudent use of the democratic fail-safe mechanism they forced on the late prime minister Pierre Trudeau–the “notwithstanding” or “opting out” clause enshrined in Section 33 of the charter.

The surviving framers of the charter are elderly men now, most of them long retired from the hurly-burly of partisan politics. The former premiers of Ontario and British Columbia, Bill Davis and Bill Bennett, declined to be interviewed for this story. Davis was allied with Trudeau and so, presumably, shared the latter’s view that the notwithstanding clause weakened the charter. Bennett, on the other hand, was a member of the so-called Gang of Eight premiers who fought for the notwithstanding clause, insisted on an amending formula that respected the principle of provincial equality (at the expense of the deux nations model of the federation), and thwarted Trudeau’s attempt to patriate the Constitution without provincial consent. They succeeded on all fronts, ironically enough, through a successful challenge in the Supreme Court of Canada.

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Pic: My JHNGALT License Plate. The Only Way to Go Galt!

So I received a call a few weeks ago from the Pennsylvania Department of Transportation regarding my “JhnGalt” vanity license plate. The official asked if I had ordered a vanity license plate. I replied, “Yes.”

Then, she asked me, “Who is John Galt?” I almost burst out laughing hysterically.

I replied, “a character from a book.” She asked what book? I replied “Atlas Shrugged.” The mischief this license plate will create has already begun. Every time someone pulls up behind me, they will ask themselves, “Who is John Galt?” If a police officer ever pulls me over, and asks me, “Sir, who is John Galt?” I may need to call one of my attorney friends to get me out of involuntary commitment due to my inability to stop laughing.

Oh well. Who is John Galt?

Update: Welcome Instapundit fans! If you like my posts, please follow me on Twitter, read my RSS feed, and check out my other John Galt posts. Go Galt!

Update 2: I think I found the perfect license plate holder.

Justice Thomas Speaks at University of Alabama

From the Tuscaloosa News, H/T How Appealing,

Friday was the 18th anniversary of Thomas’ swearing in as a Supreme Court justice and his second visit to the UA Law School. He was nominated in 1991 by President George H.W. Bush after serving for just a year on the United States Court of Appeals for the District of Columbia Circuit.

“I argued against it, I’d been on the Court of Appeals long enough,” he said. “But when the president calls you, the words out of your mouth are ‘Yes, Mr. President.’”

“I found law school difficult. You see my old textbooks, and you’ll see that the textbooks won,” he said. “My journey was in many ways very unhappy and enormously difficult.”

“That, to me, is the shame of the process,” he said. “I think people should leave and know that they’ve said their piece.”

Thomas said that he preferred to hire law clerks from modest backgrounds.

“There are too many up there who think they should be there because they’re from an elite background,” he said. Students laughed when he described how former Chief Justice William Rehnquist, who died in 2005, could get things done with a glare.

“He was more of a father figure of the World War II generation,” he said when asked how Rehnquist differs from Chief Justice John Roberts. “Chief Justice Roberts is a contemporary.”

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Liveblog: Justice Scalia and Justice Breyer Discussion at University of Arizona

The debate begins Monday, October 26, at 2:30 p.m. EST at this link

I will be liveblogging the discussion here. My comments in blue.

A.S. Indicates Antonin Scalia. S.B. indicates Stephen Breyer

Moderated by NBC’s Pete Williams. I think the Arizona Public Media site is flooded right now. The video feed was inconsistent, and kept breaking, so I was not able to transcribe everything. Total NPR fail.

Justice Scalia is wearing a dark grey suit, a light blue shirt, with a dark tie. He is sitting comfortably in a leather chair, gesticulating like a Sicilian should.

Justice Breyer is wearing a cream colored suit, a blue and white striped shirt, and a red tie.

SB: Freedom of speech, Deprivation of Liberty, Cruel and Unusual do not explain themselves. Need to go back to find original intent. Do not know what people in 18th Century thought was cruel and unusual. The questions should be how do the values they enacted then apply to our circumstances today? SB thinks people are not in favor of execution for robbery, or executive a 13 year-old. When we look around the world, hardly anyone that executes a child, even over 12. Question becomes, where do we draw the line today, not where they drew the line in 18th century, in terms of the values they enacted in the constitution in the 18th century.

AS: Just because I would not practice execution does not mean it is unconstitutional. I would find pillorying constitutional and stupid. An enormous amount of things are constitutional and stupid. NINO FTW!

SB: The term is cruel and unusual. Over time, people have different idea of what is cruel.

-I apologize, the feed is very choppy, and it just dropped out, I will try to reconnect.

AS: Some of the provisions in the Bill of Rights according trial rights to the Defendant, many people do not think these provisions are as important as the Framers thought, including the right to trial by jury, which was abolished by U.K.

-Feed dropped again. I am actually attempting to predict what Scalia was saying. I bet he was about to go into a rant on Crawford.

-Video turns back on, and Breyer is talking about the trial of Sir Water Raleigh. I was right! Confrontation clause.

S.B. Scalia doesn’t have a clue what founders intended. SB looks at purposes of confrontation clause, what values they had in mind, and try to apply that as best as they can to circumstances of the present. Justice Scalia does not take this approach. If we didn’t take this approach, where would we be? With school segregation. At time they passed 14th amendment, and said people should be treated equally, schools were segregated. Oh harsh. When people passed 14th amendment, they were trying to create circumstances of equality where people would be brought into the society.

S.B.: Separate but equal did not work. Basic value underlying 14th amendment is a value saying no segregated schools. If that wasn’t clear in 1880’s, it was certainly clear in 1954.  Court did not follow details of what people think.

A.S. As for Brown, I would agree with Justice Harlan in Plessy v. Ferguson, as an originalist. We begin with the text that prohibited racial discrimination. Some states had segregated schools, but some states abolished segregated schools after 14th amendment. Don’t choose jurisprudence based on the method that produces the best result.

Q: About Heller.

AS: Heller was not a hard question. Not even close! (applause).One commentator during entire 19th century though 2nd amendment preserved right to join a militia. He acknowledged that he was the only one. Bad example for a case where it is difficult to find an answer.

SB: They didn’t apply it at that time to stop bazookas because bazookas did not exist.  My belief is that is a matter of degree, not a matter of kind. How much you put on basic value

SB: Talking about “no vehicles in the park.” Does that apply to a jeep? Great for a teacher’s discussion. You don’t know without knowing why the wrote the sign. True throughout law. Congress enacts a statute. Cannot kill members of the endangered species. If a red skill was not endangered 30 years ago, but today it is endangered. Didn’t quite get the gist bc the feed broke, but I think he was explaining that meanings of terms change.

Update: From Josh W. who called AZPM media Department, they were not expecting the event to be so popular and do not have the bandwidth.

More after the jump.

Read the rest of this entry »

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Justice Scalia Debating Justice Breyer LIVE at 2:30 EST at University of Arizona

The debate begins Monday, October 26, at 2:30 p.m. EST at this link:

From How Appealing:

Scalia, Breyer to Discuss Constitution at UA-Hosted Event; The UA’s William H. Rehnquist Center is hosting this rare opportunity to watch two sitting Supreme Court justices discuss the U.S. Constitution; Arizona Public Media will broadcast the discussion live”

“A Conversation on the Constitution: Principles of Constitutional and Statutory Interpretation,” a discussion between Justice Antonin Scalia and Justice Stephen Breyer, takes place Monday, Oct. 26 at 11:30 a.m. PST at the Leo Rich Theatre in Tucson.

The Office of University Communications at the University of Arizona issued this news release.

I will be watching it. So should you.

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Scalia receives lap dance at Washington National Opera. Is this protected speech?

As you all should known Justices Scalia and Ginsburg are huge Opera fans.

From today’s Baltimore Sun, Ginsburg and Scalia onstage at Washington National Opera’s ‘Aridane,’  (H/T How Appealing):

Supreme Court Justices Ruth Bader Ginsburg and Antonin Scalia, who have been known to get in the act for WNO events, were up there among the supernumeraries, along with Martin Ginsburg (the justice’s husband), D.C. Congresswoman Eleanor Holmes Norton and philanthropist Adrienne Arsht. The audience particularly enjoyed the sight of the bubbly character.

But the most endearing image is of “Zerbinetta (performed by Lyubov Petrova), jumping into Scalia’s lap. You don’t see that everyday.”

Regarding the cozy seat, the Washington Examiner reports, “At one point, Russian soprano Lyubov Petrova sat on Scalia’s lap and placed her arm around him, causing the audience to burst into applause. Scalia says he can’t remember having more fun on stage.”

Justice Scalia found in Barnes v. Glen Theatre Inc. and ERIE V. PAP’S A.M. that nude dancing is not protected speech under the First Amendment. I wonder how Justice Scalia would consider this performance?

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Society’s Memory is Too Fleeting. A-Rod, the Yankees, and Forgetfulness

I am a pretty big Yankee fan. I was absolutely ecstatic watching the game last night, when the Yankees dewinged the Angels, and punched their ticket for the 2009 World Series against the Philadelphia Phillies.

But something irked me. Alex Rodriguez, or A-Rod as he is commonly known, is one of the greatest baseball players alive today. He has been hot in the playoffs. But A-Rod’s season did not start off so well.

Jim Caple from ESPN writes:

I mean, can a player have a year more intriguing than A-Rod has? It began in the offseason with Joe Torre’s book, in which the former Yankees manager said teammates called Alex Rodriguez “A-Fraud” and felt he was obsessed with Derek Jeter. That furor had just about died down when an SI reporter revealed that he had tested positive for steroids. After that came hip surgery that knocked Rodriguez out for the first month of the season. Then he homered on the first pitch after he came off the disabled list. Then he struggled for a while (his batting average was .207 in late June) before finishing strong to hit 30 home runs and drive in 100 runs (levels he’s reached for 12 consecutive seasons).

Caple’s account omits A-Rod’s ignominious affair with Madonna, wherein he cheated on his wife and children, and subsequently divorced.

Steroids. Infidelity. Dishonesty.

All of these transgressions are of no import to society’s fleeting memory. Society can only remember bad things for so long. In time, everyone seems to get better. Michael Vick will be no exception. Within a year or two, he will likely be a starting quarterback somewhere. I need not mention names like Michael Jackson or Roman Polanski to explore how society is willing to whitewash the past and forget. And when a celebrity or athlete impresses people, society’s amnesia kicks into warp drive. A-Rod’s ascendancy and acceptance in New York this season is exhibit A.

ESPN also reports that Marc McGwire, once an American hero, but later disgraced in the steroid scandal, will be returning to the St. Louis Cardinals as an assistant coach. Society has such a fleeting memory.

I won’t even address the denial of some Red Sox fans about whether David Ortiz and others took steroids. But Red Sox fans are in a league of their own. Currently, that league is in the offseason.

So let’s go Yankees, but let’s not forget about the failings of our athletes.