We understand that we cannot stop our legal research with the location of the applicable statute. The reasons are many and here we are explaining the more obvious ones, who can better read and understand the legislators’ intent than members of the judiciary?
Thus, another guiding rule for interpreting statutes is by using the record created during the legislative process when the statute was born. Formally speaking, there is a difference between inquiry into the language of a statute and inquiry into the legislature’s intent. The goal remains the same: what does the statute say? The approach is different.
The proponents of this rule believe that because words are imperfect symbols of communication, the most accurate way of determining the meaning of legislation is finding the preexisting understanding of its legislators regarding specific issues covered in the legislation. They believe that the records that trail the legislative process contain that preexisting understanding, and they access the records according to their probative value. It is commonly accepted that the legislative committee reports are of greatest importance, because they contain written assessments of the legislation by members of Congress that have studied it, heard testimony and arguments for and against it, and eventually voted to send it to the floor for a vote.
Of a value equal to committee reports are statements of individual legislators responsible for the preparation or drafting of the bill. Statements in debates on the floor of Congress are considered less persuasive, because they can be inserted in the legislative record at a later time.
Among the Supreme Court Justices, Justice Scalia is the strongest opponent of the use of legislative history in interpreting statutes. Rightfully so, Justice Scalia opposes using statements of individual legislators, because they are ordinarily addressed to a virtually empty room or concocted to influence courts, which are later called on to interpret the statute. (See Crosby v. National Foreign Trade Council, 530 U.S. 363, 391 (2000) (Scalia, j., concurring) and Blanchard v. Bergeron, 489 U.S. 87, 98-99 (1989).)
The problem with the legislative history approach is identical to the one of the “plain meaning rule” in its “originalist” version, favored by Justice Scalia. He justifies his reliance on the “originalist” fiction by believing that concepts have no history and thus can be interpreted within the meaning they had at the time they became legislation.
But why would the original intent manifest in the “legislative purpose” by appropriate for understanding and solving problems which have occurred decades or centuries later? Of course, legislators had a purpose when they passed a specific piece of legislation. That purpose is to govern a specific social interaction for the future. Of course, that purpose may be transparent if we read the records of the statute’s legislative history. But if we are to interpret the statute for the future and not for the past, we have to accept that life is dynamic and circumstances change the way in which statutes are binding.
If the statute at hand is still needed, it is because it can answer present needs, and those needs could not have been answered at a time when they did not exist. In other words, if we cannot make sense of a statute’s meaning in the social, economic, and political context of the present, past explanations will only encumber our process instead of helping it. For example, due process of law had a specific limited meaning for the Founding Fathers. It clearly did not encompass women and African-Americans. It did not encompass the entire spectrum of human behavior within the protected race and gender: white males. That meaning has naturally evolved, and today’s Supreme Court justices have come to realized and eventually held that, for example, substantial due process prohibits qualifying anal sex between same sex partners as deviate sex as long as identical sexual practices between heterosexuals are not considered “deviate.”
These dramatic examples show how difficult an endeavor is to predict legal meaning for the generations to come, and how disconnected legal concepts are even within our short history.
Even if we were to go back and read everything that can illuminate our understanding of the Founding Father’s own understanding, reality is that whatever the Supreme Court justices decide today, will govern the meaning of due process of law today.
Finally, the records of legislative history are documents that ultimately are read today with today’s understanding, and the entire exercise of going back in time and pretending that we apply some legislators’ intent to deciphering those documents and not our own understanding seems to be nothing more than mere legal fictions necessary to legitimize the ultimate result.