Should the Supreme Court Read the Federalist But Not Statutory Legislative History?

Abstract

A key doctrinal debate in statutory interpretation today revolves around the claim that courts should almost never consult and never rely on internal "legislative history" when they construe statutes. A key doctrinal debate in constitutional interpretation today revolves around the claim that courts are bound by the original understanding of the Framers when they construe the Constitution. An oddity about these parallel debates is that the Supreme Court Justices most critical of considering pre-enactment legislative debates in statutory cases are the most insistent that ratification debates be considered, and often be decisive, in constitutional cases. Those Justices are Antonin Scalia and Clarence Thomas, semanticists in statutory cases, but historicists in constitutional cases. In contrast, Justices John Paul Stevens, Sandra Day O'Connor, and David Souter examine historical debating materials in both kinds of cases.