Thank you for sharing!

Your article was successfully shared with the contacts you provided.
A dozen years ago, Justice Antonin Scalia delivered the Tanner Lectures at Princeton University, published under the title A Matter of Interpretation (1997). The lectures included the justice’s view of the problems of statutory interpretation: the meaning of “intent of the legislature,” the principle of textualism, the uses of canons and presumptions and the questionable influence of legislative history on the interpretive process. The justice’s critique of legislative history was particularly sharp. The traditional English and American practice, he pointed out, eschewed legislative history to derive a statute’s meaning; indeed, such materials were not much used until the mid-20th century. “The objective indication of the words, rather than the intent of the legislature, is what constitutes the law,” he concluded; hence, “legislative history should not be used as an authoritative indication of a statute’s meaning.” His principal objections were these: • For the vast majority of interpretive issues that reach the Supreme Court, the “intent” of Congress is an illusion, for no intention will have been expressed on the point by a congressional majority. • Debate on the floor of the House and Senate on the point rarely occurs; the members are engaged elsewhere, preoccupied by committee business. • Committee reports, assumed to be the basis for the congressional vote, are unlikely to have been read, not only by members of Congress but even by the issuing committees themselves. • Even when a committee report speaks to an issue, the relevant text may have been manufactured and inserted into the report, by lobbyists and others, precisely to take advantage of the modern penchant for legislative history. • The legislative process is likely to comprise contradictory, discordant and diverse statements, so that, in choosing material from an archive of legislative history, cynicism enters: “[T]he trick,” Scalia wrote, “is to look over the heads of the crowd and pick out your friends.” Scalia confirmed his Tanner critique formally in his concurrence in Intel v. Advanced Micro Devices Inc. (2004): It is “improper but also quite unnecessary to seek repeated support in the words of a Senate Committee report � which, as far as we know, not even the full committee, much less the full Senate, much much less the House, and much much much less the President who signed the bill, agreed with.” This was an old argument to his colleagues, who brushed it off in Wisconsin Public Intervenor v. Mortier (1991). In current cases, however, textualism seems to have gained the upper hand. The court now urges that we attend to the “ordinary meaning” of statutory words ( BP America Production Co. v. Burton (2007)), mindful of the “shades of meaning” that a word may possess (even when used repeatedly in the same statute). Environmental Defense v. Duke Energy (2007). “A common law term in a statute comes with a common law meaning,” the court reminds us. Safeco Ins. Co. of America v. Burr (2007). But “context” is crucial for context encourages reading the statute “as a whole.” U.S. v. Atlantic Research Corp. (2007). Ancient Latin canons that have lost their mystique � such as “a word is known by the company it keeps” (“noscitur a sociis”) and “words grouped in a list should be given related meaning” (“ejusdem generis”) � may be more helpful than legislative history. Dolan v. U.S. Postal Service (2006). Does employment discrimination based on an individual’s “age” include the preferment of an older man over a younger? No, said the court, rejecting fuzzy comments to the contrary of a sponsoring senator. General Dynamics Land Systems Inc. v. Cline (2004). Even when the words of the statute are “awkward,” legislative history has little appeal. Lamie v. U.S. Trustee (2004). It is “particularly dangerous” to rely upon a rejected legislative proposal as an affirmation of its opposite ( Lockhart v. U.S. (2005)), just as it is “hazardous” to rely upon the views of a later Congress on legislation enacted by a predecessor. Massachusetts v. EPA (2007). Tendency toward textualism More than 50 years ago, Justice Robert H. Jackson urged the court to proceed “by analysis of the statute instead of by psychoanalysis of Congress.” U.S. v. Public Util. Comm. of Calif. (1953). That anticipated Scalian textualism. Unless the recent run of cases is a statistical anomaly, it seems clear that � with occasional forays into historical materials � the court seems to favor textualism as its dominant mode of statutory interpretation. This preference has its virtues, but experience shows that it is an insufficient method. Justice Stephen G. Breyer, in his Active Liberty (2005), offers illustrative cases of textualism that would make a hash of the statute. He rather invokes the “reasonable legislator” who would, when textualism fails, enlarge the judge’s field of vision to look for a reasonable legislative purpose. Legislators may differ about what is reasonable in the circumstances, but the judge’s inference of their intention will do tolerable justice and serve democratic theory. That is better than merely chastising Congress for its myopia. Joseph D. Becker is of counsel to New York-based Becker, Glynn, Melamed & Muffly and was a founding partner of the firm.

This content has been archived. It is available through our partners, LexisNexis® and Bloomberg Law.

To view this content, please continue to their sites.

Not a Lexis Advance® Subscriber?
Subscribe Now

Not a Bloomberg Law Subscriber?
Subscribe Now

Why am I seeing this?

LexisNexis® and Bloomberg Law are third party online distributors of the broad collection of current and archived versions of ALM's legal news publications. LexisNexis® and Bloomberg Law customers are able to access and use ALM's content, including content from the National Law Journal, The American Lawyer, Legaltech News, The New York Law Journal, and Corporate Counsel, as well as other sources of legal information.

For questions call 1-877-256-2472 or contact us at [email protected]

Reprints & Licensing
Mentioned in a Law.com story?

License our industry-leading legal content to extend your thought leadership and build your brand.


ALM Legal Publication Newsletters

Sign Up Today and Never Miss Another Story.

As part of your digital membership, you can sign up for an unlimited number of a wide range of complimentary newsletters. Visit your My Account page to make your selections. Get the timely legal news and critical analysis you cannot afford to miss. Tailored just for you. In your inbox. Every day.

Copyright © 2021 ALM Media Properties, LLC. All Rights Reserved.