Once I had the opportunity to serve in the Wisconsin legislature
I realized just how severely flawed is the idea of looking to legislative
history for guidance in statutory interpretation.
One of the most important achievements of
Supreme Court Justice Antonin Scalia’s career is the emergence of textualism as
an accepted method of statutory interpretation. The basic concept is
fairly simple: judges should seek to interpret statutes based on a plain
reading of the text.
If that fails, judges can look to the words
set forth in the full statute for guidance. Finally, judges can compare
the words used in one statute to those used in another to help find the
correct meaning. However, the touchstone of the textualist method is
that courts should adhere to the “plain meaning” of the statute. A corollary is
that judges should not go searching for meaning in the legislative history
(i.e., legislative intent).
I have been a member of the Federalist Society
since law school and a fan of Justice Scalia for even longer, so
I have always been an adherent to the textualist approach.
However, it wasn’t until I had the opportunity to serve in the Wisconsin
legislature that I realized just how severely flawed the entire idea of looking
to legislative history for guidance in statutory interpretation really is.
There Is No Such Thing as Legislative Intent
Before I served in the legislature, my
understanding was always theoretical. The reasons most cited for ignoring
legislative history are: (i) it violates bicameralism, since emphasizing a
committee report or floor debate from one house necessarily diminishes the role
of the other house; (ii) it violates the presentment
clause; (iii) extrinsic evidence can easily be manipulated by
staff placing material into committee reports; and (iv) it opens the door to
judicial activism, because if a judge looks hard enough, legislative history
can always be found to support her preferred outcome.
I would like to add one more to the list.
Having now completed my first term in the legislature, I can say with some
confidence that there is no such thing as legislative intent (finding
legislative intent is, of course, the goal of searching legislative history).
In fact, I have come to believe the very idea of “legislative
intent” is absurd. Here’s why.
In Wisconsin, for a bill to become law,
majorities in the 99-member Assembly and the 33-member Senate must pass the
bill, and then the governor must sign it. This means, at a minimum, 68
different people will need to vote in favor of (and sign) the bill.
The notion that these 68 unique individuals
share the same intent is ridiculous on its face. Of those 68, some will have
little knowledge of what the bill does, some will flat-out oppose it but vote
in favor because it’s popular back home, some will vote for it due to pressure
from some special interest group, some will simply not care and won’t want to
rock the boat, and some, of course, will share a common objective.
However, even those who share a common
objective may not make that objective abundantly clear or even shield the true
objective behind rhetoric focusing on a more politically
popular objective.
Let’s Game This Out
Here’s a hypothetical to illustrate the
point: State Legislator A is a member of the majority party in a unified
(full control by one party) state government. Legislator A proposes a bill.
Legislator B, also a member of the majority party, hates this bill, but does
not have the votes to kill it. Instead of simply voting no, Legislator B
attempts to work with Legislator A to amend the bill to make it less
bad.
Legislator A agrees to change the bill, but
only if Legislator B agrees to vote yes. This is the normal give and take of
the legislative process. Legislator B is now going to vote yes on the bill,
even though she still does not really like it. So what is the
legislative intent of Legislator B? Certainly it was not the same as
Legislator A’s. You can see through this hypothetical, how searching for
the legislative intent can be a fool’s errand.
Justice Scalia resolved this problem by
panning the use of legislative history in statutory interpretation. For
example, in Graham County Soil & Water Conserv. Dist. V. U.S. ex rel
Wilson, Scalia said, “The Constitution gives legal effect to the ‘laws’
Congress enacts not the objectives its Members aimed to achieve in voting for
them.”
I fervently hope President Trump and his
advisors carefully examine each candidate for the Supreme Court and lower
federal courts and choose those who are most inclined to follow Justice
Scalia’s textualist lead. While there are some very good choices, one of the
best is Wisconsin’s own, Seventh Circuit Judge Diane Sykes.
Judge Sykes has a demonstrated
understanding of the primacy of text over intent, noting in one case that
statutory interpretation should “focus primarily on the language of the
statute.” A federal judiciary committed to textualism will promote
liberty, separation of powers, and federalism while providing a bulwark against
judicial activism and legislating from the bench.
Adam Jarchow
is a representative to Wisconsin’s state Assembly from Balsam Lake.
