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«THE TANNER LECTURES ON HUMAN VALUES Delivered at Princeton University March 8 and 9, 1995 ANTONIN SCALIA is Associate Justice of the United States ...»

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I should concur in this result more readily if the Court could reach it by analysis of the statute instead of by psychoanalysis of Congress. When we decide from legislative history, including statements of witnesses at hearings, what Congress probably had in mind, we must put ourselves in the place of a majority o f Congressmen and act according to the impression we think this history should have made on them. Never having been a Congressman, I am handicapped in that weird endeavor.

That process seems to me not interpretation of a statute but creation of a statute.23 In the past few decades, however, we have developed a legal culture in which lawyers routinely-and I do mean routinely — make no distinction between words in the text of a statute and words in its legislative history. I am frequently told, in briefs and in oral argument, that “Congress said thus-and-so” -when in fact what is being quoted is not the law promulgated by Congress, nor even any text endorsed by a single house of Congress, but rather the statement of a single committee of a single house, set forth in a committee report. I am sure some of you have heard the humorous quip that one should consult the text of the statute only when the legislative history is ambiguous. Well, that’s no longer funny. Reality has overtaken parody. A few terms ago, I read a brief that began the legal argument with a discussion of legislative history, and then continued (I swear I am quoting it verbatim) : “Unfortunately, the legislative debates are not helpful. Thus, we turn United States v. Public Utils. Comm’n o f Cal., 345 U.S. 295, 319 (1953)

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to the other guidepost in this difficult area, statutory language.” 24 As I have said, I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law. What is most exasperating about the use of legislative history, however, is that it does not even make sense for those who accept legislative intent as the criterion. It is much more likely to produce a false or contrived legislative intent than a genuine one.

The first and most obvious reason this is true is that, with respect to 99.99 percent of the issues of construction reaching the courts, there is no legislative intent, so that any clues provided by the legislative history are bound to be false. Those issues almost invariably involve points of relative detail, compared with the major sweep of the statute in question. That a majority of both houses of Congress (never mind the President, if he signed rather than vetoed the bill) entertained any view with regard to such issues is utterly beyond belief. For a virtual certainty, the majority was blissfully unaware of the existence of the issue, much less had any preference as to how it should be resolved.

But assuming, contrary to all reality, that the search for “legislative intent” is a search for something that exists, that something is not likely to be found in the archives of legislative history. In earlier days, when Congress had much smaller staff and enacted much less legislation, it might have been possible to believe that a significant number of senators or representatives were present for the floor debate, or read the committee reports, and actually voted on the basis of what they heard or read. Those days, if they ever existed, are long gone. The floor is rarely crowded for a debate, the members generally being occupied with committee business and reporting to the floor only when a quorum call is demanded or a vote is to be taken. And as for committee reports, it is not even certain that the members of the issuing committees have found Brief for Petitioner at 21, Jett v. Dallas Indep. Sch. Dist., 491 U.S. 701

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time to read them, as demonstrated by the following Senate floor debate on a tax bill, which I had occasion to quote in an opinion

written when I was on the Court of Appeals:

Mr. ARMSTRONG.... My question, which may take [the

chairman of the Committee on Finance] by surprise, is this:

Is it the intention of the chairman that the Internal Revenue Service and the Tax Court and other courts take guidance as to the intention of Congress from the committee report which accompanies this bill ?

Mr. DOLE. I would certainly hope so....

Mr. ARMSTRONG. Mr. President, will the Senator tell me whether or not he wrote the committee report?

Mr. DOLE. Did I write the committee report?

Mr. ARMSTRONG. Yes.

Mr. DOLE. N o ; the Senator from Kansas did not write the committee report.

Mr. ARMSTRONG. Did any Senator write the committee report?

Mr. DOLE. I have to check.

Mr. ARMSTRONG. Does the Senator know of any Senator who wrote the committee report?

Mr. DOLE. I might be able to identify one, but I would have to search. I was here all during the time it was written, I might say, and worked carefully with the staff as they worked....

Mr. ARMSTRONG. Mr. President, has the Senator from Kansas, the chairman of the Finance Committee, read the committee report in its entirety ?

Mr. DOLE. I am working on it. It is not a bestseller, but I am working on it.

Mr. ARMSTRONG. Mr. President, did members of the Finance Committee vote on the committee report?

Mr. DOLE. No.





Mr. ARMSTRONG. Mr. President, the reason I raise the issue is not perhaps apparent on the surface, and let me just state The Tanner Lectures on Human Values it.... The report itself is not considered by the Committee on Finance. It was not subject to amendment by the Committee on Finance. It is not subject to amendment now by the Senate....

... If there were matter within this report which was disagreed to by the Senator from Colorado or even by a majority of all Senators, there would be no way for us to change the report. I could not offer an amendment tonight to amend the commit tee report.

... [F]or any jurist, administrator, bureaucrat, tax practitioner, or others who might chance upon the written record of this proceeding, let me just make the point that this is not the law, it was not voted on, it is not subject to amendment, and we should discipline ourselves to the task of expressing congressional intent in the statute.” Ironically, but quite understandably, the more courts have relied upon legislative history, the less worthy of reliance it has become. In earlier days, it was at least genuine and not contrived a real part of the legislation’s history, in the sense that it was part of the development of the bill, part of the attempt to inform and persuade those who voted. Nowadays, however, when it is universally known and expected that judges will resort to floor debates and (especially) committee reports as authoritative expressions of “legislative intent,” affecting the courts rather than informing the Congress has become the primary purpose of the exercise. It is less that the courts refer to legislative history because it exists, than that legislative history exists because the courts refer to it. One of the routine tasks of the Washington lawyer-lobbyist is to draft language that sympathetic legislators can recite in a prewritten “floor debate” -or, even better, insert into a committee report.

Now there are several common responses to some of the points I have just made. One is “So what, if most members of Congress do not themselves know what is in the committee report. Most of 128 Cong. Rec. 16918-19, 97th Cong., 2d Sess. (July 19, 1982), quoted in Hirschey v. Federal Energy Regulatory Comm’n, 777 F.2d 1, 7 n.1 (D.C. Cir. 1985) (Scalia, J., concurring).

Common-Law Courts in a Civil-Law System [SCALIA] 109 them do not know the details of the legislation itself, either -but that is valid nonetheless. In fact, they are probably more likely to read and understand the committee report than to read and understand the text.” That ignores the central point that genuine knowledge is a precondition for the supposed authoritativeness of a committee report, and not a precondition for the authoritativeness of a statute. The committee report has no claim to our attention except on the assumption that it was the basis for the house’s vote, and thus represents the house’s “intent,” which we (presumably) are searching for. A statute, however, has a claim to our attention simply because Article I, section 7, of the Constitution provides that since it has been passed by the prescribed majority (with or without adequate understanding) it is a law.

Another response simply challenges head-on the proposition that legislative history must reflect congressional thinking: “Committee reports are not authoritative because the full house presumably knows and agrees with them, but rather because the full house wants them to be authoritative -that is, leaves to its committees the details of its legislation.” It may or may not be true that the houses entertain such a desire; the sentiments of Senator Armstrong that I quoted earlier suggest that it is not. But if it is true, it is unconstitutional. “All legislative Powers herein granted,” the Constitution says, “shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.” 26 The legislative power is the power to make laws, not the power to make legislators. It is nondelegable. Congress can no more authorize one committee to “fill in the details” of a particular law in a binding fashion than it can authorize a committee to enact minor laws. Whatever Congress has not itself prescribed is left to be resolved by the executive or (ultimately) the judicial branch.

That is the very essence of the separation of powers. The only conceivable basis for considering committee reports authoritative, therefore, is that they are a genuine indication of the will of the U.S. Const. art. I, §1.

The Tanner Lectures on Human Values entire house-which, as I have been at pains to explain, they assuredly are not.

I think that Dean Landis, and those who joined him in the prescription of legislative history as a cure for what he called “willful judges,” would be aghast at the results a half century later. On balance, it has facilitated rather than deterred decisions that are based upon the courts’ policy preferences, rather than neutral principles of law. Since there are no rules as to how much weight an element of legislative history is entitled to, it can usually be either relied upon or dismissed with equal plausibility. If the willful judge does not like the committee report, he will not follow it; he will call the statute not ambiguous enough, the committee report too ambiguous, or the legislative history (this is the favorite phrase) “as a whole, inconclusive.” It is ordinarily very hard to demonstrate that this is false so convincingly as to produce embarrassment. To be sure, there are ambiguities involved, and hence opportunities for judicial willfulness, in other techniques of interpretation as well -the canons of construction, for example, which Dean Landis so thoroughly detested. But the manipulability of legislative history has not replaced the manipulabilities of these other techniques; it has augmented them. There are still the canons of construction to play with, and in addition legislative history.

Legislative history provides, moreover, a uniquely broad playing field. In any major piece of legislation, the legislative history is extensive, and there is something for everybody. As Judge Harold Leventhal used to say, the trick is to look over the heads of the crowd and pick out your friends. The variety and specificity of result that legislative history can achieve is unparalleled.

I think it is time to call an end to a brief and failed experiment, if not for reasons of principle then for reasons of practicality. I have not used legislative history to decide a case for, I believe, the past seven Terms. Frankly, it has made very little difference (since it is ordinarily so inconclusive). In the only case I recall in which, had I followed legislative history, I would have come out the other Common-Law Courts in a Civil-Law System [SCALIA] 111 way, the rest of my colleagues (who did use legislative history) did not come out the other way either.27 The most immediate and tangible change the abandonment of legislative history would effect is this: Judges, lawyers, and clients will be saved an enormous amount of time and expense. When I was head of the Office of Legal Counsel in the Justice Department, I estimated that 60 percent of the time of the lawyers on my staff was expended finding, and poring over, the incunabula of legislative history. What a waste. W e did not use to do it, and we should do it no more.

Finally, I want to say a few words about the distinctive problem of interpreting our Constitution. The problem is distinctive, not because special principles of interpretation apply, but because the usual principles are being applied to an unusual text. Chief Justice Marshall put the point as well as it can be put in McCulloch

v. Maryland:

A constitution, to contain an accurate detail of all the subdivisions of which its great powers will admit, and of all the means by which they may be carried into execution, would partake of the prolixity of a legal code, and could scarcely be embraced by the human mind. It would probably never be understood by the public. Its nature, therefore, requires, that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose the objects be deduced from the nature of the objects themselves.28 In textual interpretation, context is everything, and the context of the Constitution tells us not to expect nit-picking detail, and to give words and phrases an expansive rather than narrow interpretation -though not, of course, an interpretation that the language will not bear.

See Wisconsin Publ. Intervenor v. Mortier, 501 U.S. 597 (1991); id., at 616 (Scalia, J., concurring).

McCulloch v. Maryland, 17 U.S. ( 4 Wheat.) 316, 407 (1819).

The Tanner Lectures on Human Values Take, for example, the provision of the First Amendment that forbids abridgment of “the freedom of speech, or of the press.” That phrase does not list the full range of communicative expression. Handwritten letters, for example, are neither speech nor press. Yet surely there is no doubt they cannot be censored. In this constitutional context, speech and press, the two most common forms of communication, stand as a sort of synecdoche for the whole.



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