Legislative history.

JurisdictionUnited States

Section 57. Legislative history.—After the statute has been analyzed in its setting, the lawyer should routinely check its legislative history: successive drafts, committee reports, and the debates on the floor of Congress. Such material has now become more generally accessible to the bar through publication in a number of legislative services. In libraries, research is facilitated through reference to the "History of Bills and Resolutions" index of the Congressional Record, and by the fact that the later volumes of the Statutes at Large, beginning with volume 33, show the bill number of each act.

In England, it is still not permissible in ascertaining the meaning of a statute to look to any preliminary legislative materials.139 The first relaxation of that rule in the United States, which came rather later in the day than most lawyers realize, was sensible enough: where the language of a statute was doubtful, resort might be had to the committee reports and—but with qualifications—to the debates.140 There were later clarifications, to the effect that little if any weight would be given to the remarks of members not in charge of the legislation.141 In a sense, these were conventions, like all rules of statutory construction; the task was to ascertain the "intent" of Congress in a situation that Congress obviously did not have in mind when the act was passed. A court construing the statute was frequently in the position of the English judge in the not so apocryphal probate proceeding: "This will has no meaning but it is my duty to give it one."

Nonetheless, the conventions were observed, so that courts would be aloof from the conflicts of the political arena, and free from the cynical approach of "The purpose of the statute? Why, to gain votes, of course!"

In time, however, the emphasis came to be less and less on the language of the statute, and more and more on the legislative materials, in order to give effect to the "intent" of Congress. "When aid to construction of the meaning of words, as used in the statute, is available, there certainly can be no 'rule of law' which forbids its use, however clear the words may appear on 'superficial examination.' "142 "The meaning to be ascribed to an Act of Congress can only be derived from a considered weighing of every relevant aid to construction."143

It is significant that both quotations are from cases decided on the same day in 1940 by five-to-four votes. With the adoption of such a technique, of course, the floodgates were open, for the "considered weighing of every relevant aid" necessarily shifts the emphasis from "construction" to a consideration of desirability and of social and economic values. Preoccupation with legislative history and with the legislative debates inevitably draws courts into an evaluation of legislative, i.e., purely political, factors. For a considerable period, therefore, the conventional rules for ascertaining legislative intent were given less and less weight, and in the earlier version of this work, published in 1950, I wrote: "The dispassionate observer may well doubt whether, for instance, after the decisions in the Jewell Ridge portal-to-portal,144 Girouard,145 Churchy,146 and Spiegel147 cases, even strong legislative history has any meaning whenever a majority of the Supreme Court finds itself not in accord with that meaning—and a reading of the decisions just cited will show that this is not at all a facetious comment."

Each of those four cases has since been legislatively overruled, at least in part,148 and probably nothing decided thereafter has been quite as extreme. The late Mr. Justice Jackson did a great deal to clear the atmosphere with characteristically pithy phrases in an endeavor to return the principal emphasis in interpretation to the language of the statute. "It is the business of Congress to sum up its own debates in the legislation. Moreover, it is only the words of the bill that have presidential approval, where that approval is given. It is not to be supposed that in signing a bill the President endorses the whole Congressional Record. For us to undertake to reconstruct an enactment from legislative history is merely to involve the Court in political controversies which are quite proper in the enactment of a bill but should have no place in its interpretation."149 And again: "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."150 Both excerpts are from concurring opinions, but a few years after his death the Court said, "But this is a case for applying the canon of construction of the wag who said, when the legislative history is doubtful, go to the statute."151

Perhaps the most amazing—or, if one prefers, amusing—instance of extreme reliance on interpretative materials in preference to the text sought to be construed occurred some years ago, when the Supreme Court changed one of the Federal Rules of Criminal Procedure, and a Court of Appeals had difficulty in understanding the change because "we have not the aid in interpretation of any history * * * or of any report of an Advisory Committee...

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