Yet Another Confluence of Legal Interpretation and Fact Finding--Legislative History (1/20/19)

In statutory interpretation, textualists and their fellow travelers often eschew (or claim to eschew) legislative history as a reliable guide to interpretation of statutory text; instead they insist upon the primacy of some "public meaning" of the text at the time of enactment.  Discerning legislators' subjective "intent," they urge, is not possible. To the extent intent is relevant, it is the intent inferred from the public meaning of the text at the time.  John F. Manning, What Divides Textualists from Purposivists?, 106 Colum. L. Rev. 70, 79-80 (2006) (“Textualists thus look for what they call ‘objectified’ intent—the intent that a reasonable person would gather from the text of the law, placed alongside the remainder of the corpus juris.” (Cleaned up)).  The public meaning inquiry, as stated, is a fact finding inquiry into the meaning at the time the constitutional text or statutory text was adopted.  If it is a fact finding inquiry, then why would legislative history not be relevant to that inquiry?  At a minimum legislative history is some evidence of public meaning.  Victoria Nourse, Misunderstanding Congress: Statutory Interpretation, the Supermajoritarian Difficulty, and the Separation of Powers, 99 Geo. L. J. 1119, 1166-1167 (2011) (arguing that the legislative history can be “evidence of ordinary or public meaning”).

Our legal tradition has developed the concept of relevant evidence of facts.  FRE 401 provides that evidence is relevant if “(a) it has any tendency to make a fact more or less probable than it would be without the evidence; and (b) the fact is of consequence in determining the action.”  FRE 402 further provides that relevant evidence is admissible for consideration by the fact finder unless there is some provision otherwise.  Of course, that does not mean all evidence is equally persuasive, but it may be admissible for the fact finder to consider.  I think that same analysis should be true of legislative history; it may not be the most persuasive evidence of statutory meaning (or public meaning), depending upon context, but it should not be categorically rejected.  Categorical rejection of persuasive legislative history is inconsistent with the concept of relevance in fact finding.

There is pretty good anecdotal evidence that circuit judges (and by extrapolation, Supreme Court Justices) actually do consider, in the foreground or in the background, legislative history in their deliberations.  Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. R. 1298, 1324-1327 (2018) (noting that in the sample, most conservative judges, even the most text-centric, consulted legislative history and concluding that the issue of use of legislative history “is no longer interesting and should be put to rest.”). 

And, of course, the original public meaning, even if discernible via the fact finding inquiry, is not static.  As Justice Kavanaugh said in his confirmation hearing on 9/5/18, originalism which is “constitutional textualism, meaning the original public meaning of the constitutional text” is “informed by history, tradition and precedent.”   See Will Baude, The Best Parts of the Kavanaugh Hearing (Volokh Conspiracy 9/5/18) (the incorporated video clip has it and I transcribed it from the video clip); Supreme Court Nominee Hearing Before the Senate Continues...And it is Heated (The Takeaway WNYC Studios 9/5/18). The "informed by" qualification seems to substantially dilute the primacy of original public meaning.  But, some textualists in pledging allegiance to the original public meaning would not so qualify it, treating originalism and public meaning somewhat like “fundamentalism,” evoking the bibilical interpretation notion that the meaning of biblical text is fixed, ascertainable and timeless.  See Peter J. Smith & Robert W. Tuttle, Biblical Literalism and Constitutional Originalism, 86 Notre Dame L. Rev. 693, 694 (2011) (citing e.g., at p. 694 n.1  Cass Sunstein who believes that originalism “bears an obvious resemblance to religious fundamentalism,” (Cass R. Sunstein, Radicals in Robes, at xiii (2005)) and noting similarities and differences between originalism and biblical fundamentalism/literalism.)