A Constitutional Defense of Legislative History


This essay sets forth an original, constitutional defense of legislative history in statutory interpretation that challenges conventional textualist wisdom. Textualists believe that the Constitution requires judges to focus on statutory text to the exclusion of legislative history. This is because only text, and not the committee reports and debates that constitute legislative history, passes through the Constitution’s law making steps of bicameralism (passage by both chambers of Congress) and presentment (delivery of the bill for the President’s signature or veto). Thus, textualists argue, only the statute’s text is enacted law, and judges ought to consider that law and nothing else.

I argue that textualists improperly view congressional law making as important for its result (the enacted text) rather than its process. Several constitutional provisions show that the federal law making process was structured to generate debate and deliberation over proposed legislation. And this deliberative process (as reflected in legislative history) is the context within which statutory text takes on meaning. Thus, careful review of constitutional text and structure busts a textualist myth: The Constitution actually requires judicial consideration of legislative history.



Date of this Version

March 2004