Constitution & Judicial Question

[NolaAuTiger 3,295]

Judges look at legislative history materials quite often (though not nearly as often as the Warren Court did).

Should federal judges be allowed to rely on federal legislative history materials when discerning the application of a particular statute? Legislative history materials are essentially the documents that evolve throughout the legislative process. For example, after a bill leaves its originating House, a committee report will accompany the bill to the next Chamber. Basically, a committee report is a document drafted by those closest to the initial promulgation of a bill. It essentially says “this is what we are trying to accomplish with this bill.” Committee reports can also accompany a bill later in the legislative process, I.e., when a conference committee has to reconcile differences in a bill’s version between Houses.

Legislative history materials can also include transcripts of floor debates between congressmen. 

Should courts be able to look at these documents whenever they please or only when a text is ambiguous (or should they look at them at all)? 

Consider the Bicameralism and Presentment clauses of the Constitution. Does judicial reliance on legislative history circumvent those constitutional provisions? See Art. I, cl. I & Art. I, Sec 7, cl. 2 & 3

Scalia was adamantly against using these sources, while Breyer is more lenient towards using them.

[AU64 10,122]

 Seems they should look at a law as it is likely to be interpreted by their fellow judiciary members.    I vaguely recall several instances where laws ended up being interpreted differently than those who passed and supported them had intended.  Some are badly drafted, by accident or deliberately such that the expectations differ from later judicial interpretations. 

And of course, if you look at the conference documents and comments made during discussion you have to decide which expectations to accept and which to reject.

Still an issue of "intent" vs what the law says I guess.. ..and usually we prefer to get a ruling based on "intent" since that is often what we know and expect. 

[TitanTiger 20,472]

Seems like a distilled version of stating it is whether you lean toward a strict 'letter of the law' interpretation, or a 'spirit of the law.'  One only upholds the text of the law itself, even if it was a colossal cluster**** in wording and results in very unjust outcomes for some.  The other would allow for some sources outside the text to understand better what Congress was attempting to do when it wrote the law.

You see a similar dichotomy in Scripture between Jesus and the Pharisees.  The Pharisees (just to bring up one example) saw the law that says "You shall not work on the Sabbath day," and proceeded to see the Law itself as the supreme thing and that man was created to serve it.  So they proceeded to hash out all the possible activities or actions that could be considered "work."  It got down to the simplest of things such as lighting a fire, a man rolling up a mat and toting it under his arm, or Jesus' disciples plucking a few grains of wheat to nibble on as they walked through a field, and deemed such things as forbidden on the Sabbath.  Jesus on the other hand flips the perspective and says that "the Sabbath was created for man, not man for the Sabbath."  In other words, human beings weren't created for the purpose of upholding laws, laws were given to serve them and benefit and provide for them.  And, so He heals, tells a man to take up his mat and walk, and defends the disciples plucking grain all on the Sabbath.  His critique of the Pharisees is that they utterly miss the point of God's laws - they are very studious about following the letter (even though He also points out how they don't even live up to their own standards), but don't comprehend the spirit of the law at all.  They think the Law was the point when in actuality, human flourishing and guiding human beings toward fulfilling the way that He made them to live was the point. The Law was just a "teacher" to that end.

I can see the advantages and dangers of both methods I suppose.  My position would probably be a moderate one on this.  First look at the law itself.  If the law is clear and it doesn't result in some kind of obvious injustice elsewhere, maybe you stick with the text only.  If there is ambiguity or confusion, or it seems to be producing what any reasonable person would say is an unintended or unjust outcome, see if these outside documents can shed some light on what the law was intended to accomplish.

[NolaAuTiger 3,295]

10 hours ago, TitanTiger said:

Seems like a distilled version of stating it is whether you lean toward a strict 'letter of the law' interpretation, or a 'spirit of the law.'  One only upholds the text of the law itself, even if it was a colossal cluster**** in wording and results in very unjust outcomes for some.  The other would allow for some sources outside the text to understand better what Congress was attempting to do when it wrote the law.

You see a similar dichotomy in Scripture between Jesus and the Pharisees.  The Pharisees (just to bring up one example) saw the law that says "You shall not work on the Sabbath day," and proceeded to see the Law itself as the supreme thing and that man was created to serve it.  So they proceeded to hash out all the possible activities or actions that could be considered "work."  It got down to the simplest of things such as lighting a fire, a man rolling up a mat and toting it under his arm, or Jesus' disciples plucking a few grains of wheat to nibble on as they walked through a field, and deemed such things as forbidden on the Sabbath.  Jesus on the other hand flips the perspective and says that "the Sabbath was created for man, not man for the Sabbath."  In other words, human beings weren't created for the purpose of upholding laws, laws were given to serve them and benefit and provide for them.  And, so He heals, tells a man to take up his mat and walk, and defends the disciples plucking grain all on the Sabbath.  His critique of the Pharisees is that they utterly miss the point of God's laws - they are very studious about following the letter (even though He also points out how they don't even live up to their own standards), but don't comprehend the spirit of the law at all.  They think the Law was the point when in actuality, human flourishing and guiding human beings toward fulfilling the way that He made them to live was the point. The Law was just a "teacher" to that end.

I can see the advantages and dangers of both methods I suppose.  My position would probably be a moderate one on this.  First look at the law itself.  If the law is clear and it doesn't result in some kind of obvious injustice elsewhere, maybe you stick with the text only.  If there is ambiguity or confusion, or it seems to be producing what any reasonable person would say is an unintended or unjust outcome, see if these outside documents can shed some light on what the law was intended to accomplish.

And in that same vein, there’s a difference between a textualist (like Scalia) and a strict constructionist. 

[NolaAuTiger 3,295]

11 hours ago, AU64 said:

 Seems they should look at a law as it is likely to be interpreted by their fellow judiciary members.    I vaguely recall several instances where laws ended up being interpreted differently than those who passed and supported them had intended.  Some are badly drafted, by accident or deliberately such that the expectations differ from later judicial interpretations. 

And of course, if you look at the conference documents and comments made during discussion you have to decide which expectations to accept and which to reject.

Still an issue of "intent" vs what the law says I guess.. ..and usually we prefer to get a ruling based on "intent" since that is often what we know and expect. 

Ahh, legislative intent. It’s quite the legal fiction, but proponents say it is a useful one. I think, even if there is such a thing as legislative intent, the only way to discern it is by looking at the text. 

I think floor debates are unreliable becuase we never actually know if all memebers were present when the exchange occurred, and whether one congressman’s subjective intent is actually reflective of a majority or 2/3s of congress’ intent is basically indiscernible. Lastly, no legislative history material is actually voted on. Only the bill is.

That said, Justice Breyer offers some compelling arguments against my stance.

[TitanTiger 20,472]

4 minutes ago, NolaAuTiger said:

And in that same vein, there’s a difference between a textualist (like Scalia) and a strict constructionist. 

Elaborate on that.  

[AU64 10,122]

2 minutes ago, NolaAuTiger said:

Ahh, legislative intent. It’s quite the legal fiction, but proponents say it is a useful one. I think, even if there is such a thing as legislative intent, the only way to discern it is by looking at the text. 

I think floor debates are unreliable becuase we never actually know if all memebers were present when the exchange occurred, and whether one congressman’s subjective intent is actually reflective of a majority or 2/3s of congress’ intent is basically indiscernible. Lastly, no legislative history material is actually voted on. Only the bill is.

That said, Justice Breyer offers some compelling arguments against my stance.

Yep.....because we never know for certain the "intent" of those legislators making their speeches on the floor.....satisfying some lobbyist or special interest or a real passion for the essence of the proposed law.   JMO but you can go back to the writings of the founders...Jefferson, Adams, etc and get a sense of their "intent" but I would not trust what comes from the floor of congress these days as explanation for what any particular new law is supposed to accomplish.  Most of our laws seem to be written to right some perceived wrong in society or to repay some  group for it's support......and as for perceived wrongs,  I guess it matters who is doing the perceiving...JMO.

[NolaAuTiger 3,295]

Just now, TitanTiger said:

Elaborate on that.  

A strict constructionist basically says that the text is supreme/controlling at all times, and it can never be departed from. This is problematic for obvious reasons though. For example, under this view, words on parchment wouldn’t constitute protected speech becuase they’re not literally speech or press.

The textualist, on the other hand, is hesitant about departing from the text, but will do so in some circumstances. For example, if an evidence rule uses the term “defendant” when it is clear from the context that what was actually meant was “civil defendant,” then the textualist will read it as “civil defendant.” After all, if the rule were to be applied to “criminal defendants,” it could run afoul constitutional rights afforded to the accused in a case brought by the government. - see green v bock.

The textualist doesn’t deny the absurdity doctrine, but they maintain a narrow view of it.  If the application of a text, as written, produces an odd result, that doesn’t necessarily mean that the text is absurd for the textualist. However, if its application is so exceedingly unreasonable that no person could conceivably think it was meant to be applied that way (like in the case of a scrivener’s error) the textualist will look beyond the text. 

There are some other distinctions as well, and I’m happy to discuss, but these are the basics.

[TitanTiger 20,472]

12 minutes ago, NolaAuTiger said:

A strict constructionist basically says that the text is supreme/controlling at all times, and it can never be departed from. This is problematic for obvious reasons though. For example, under this view, words on parchment wouldn’t constitute protected speech becuase they’re not literally speech or press.

The textualist, on the other hand, is hesitant about departing from the text, but will do so in some circumstances. For example, if an evidence rule uses the term “defendant” when it is clear from the context that what was actually meant was “civil defendant,” then the textualist will read it as “civil defendant.” After all, if the rule were to be applied to “criminal defendants,” it could run afoul constitutional rights afforded to the accused in a case brought by the government. - see green v bock.

The textualist doesn’t deny the absurdity doctrine, but they maintain a narrow view of it.  If the application of a text, as written, produces an odd result, that doesn’t necessarily mean that the text is absurd for the textualist. However, if its application is so exceedingly unreasonable that no person could conceivably think it was meant to be applied that way (like in the case of a scrivener’s error) the textualist will look beyond the text. 

There are some other distinctions as well, and I’m happy to discuss, but these are the basics.

No that's good.  Between that and the Wikipedia entry on strict constructionism, I think I've got the gist.  Thanks.

[NolaAuTiger 3,295]

2 hours ago, TitanTiger said:

No that's good.  Between that and the Wikipedia entry on strict constructionism, I think I've got the gist.  Thanks.

I would also add that practically, there’s likely not a true strict constructionist judge out there today. Furthermore, there’s no universally accepted method of interpretation amongst judges in our Common Law court system. Most judges are somewhere between a textualist and a purposivist (yes, that’s an actual term used to describe another approach). I’m not sure if you’ve ever noticed, but many of Scalia’s greatest opinions are in dissents and concurrences. That’s becuase he came to the bench at a time when interpretation rarely began with the text. His flat out assault on such approach began in modest form but solidified over time into a textualist approach... and you probably know the rest of the story. As he “got comfortable” his approach took full form. While he did have a strong influence on interpretation over all, his method was never fully embraced by all of his counterparts (hence, notable dissents and concurrences).

Anyways... enjoyable to discuss.