The Ultimate Post-Enactment Legislative History: Asking the Lawmakers What They Thought, 30 Years Later

October 26th, 2009

Professor Jack Chin, who I met at the University of Arizona Aspiring Law Professors Conference, posted a fascinating note on PrawfsBlog.

Use of legislative history is famously controversial for purposes of statutory interpretation.   But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting.  I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965.  No one doubted that the Act removed racial and ethnic bars from an immigration policy that until then preferred whites, but many commentators called the subsequent racial diversification of the immigrant stream, and therefore the browning of America, as a classic unintended consequence, which, if it had been anticipated, would have killed the reform. Theodore H. White called the Act “noble, revolutionary and probably the most thoughtless of the many acts of the Great Society.”  I read the legislative history of the Act as reflecting principled anti-racism (and therefore at least acceptance and possibly encouragement of non-white immigration) that might have been expected of many of the same people who passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  But I also thought it would be interesting to check in with some of the drafters of the Act decades later.

There is always the risk that they would not remember correctly, or that they would shape their memories to satisfy the expectations of a subsequent generation.  Nevertheless, what they said supported my thesis, saying they thought non-whites had been treated unfairly under prior immigration policy.  In my view, these claims were credible because they were consistent with what they said in 1965.

Professor Chin includes a picture of a letter from President Ford, who was the House Minority Leader in 1965.

This is a pretty cool example of politicians explaining the contents of the bills they write, but is probably one of the least reliable forms of post-enactment legislative history. Assuming President Ford’s memory served him well, he wrote this letter 30 years after the Bill was passed. It is highly unlikely that he would remember the details of the legislative bargains, how different interest groups felt about the bill, and what anyone, other than himself perhaps, may have said. Further, his opinions that formed after the enactment of the bill may influence his recollection. All of the usual benefits of legislative history are diminished.

To the extent that the letter from President Ford confirms the 1965 legislative history, which I think it did in this case, the letter is relevant. But if President Ford’s recollection conflicted with the legislative history from the time, where would that leave you? Which to believe? Certainly the legislative history from 1965, and not the letter from 1996. So in essence, these kind of post-enactment statements by the legislators have meaning only so far as they agree with the original statements. If they disagree, they will likely be disregarded. But if they agree with the original statements, what is their purpose?

A common tact by legislators is to submit amicus briefs in cases dealing with the statutory interpretation of a statute they enacted. In Rapanos v. United States, 547 U.S. ___ (2006), nine key legislators (6 Democrats and 3 key Republicans) submitted a brief explaining their view of how the statute should be interpreted. Ultimately, the Supreme Court rejected these views. Was this the correct outcome? Shouldn’t legislators be in the best position to explain the law they enacted? See also, See Blanchette v. Connecticut General Insurance Corp, 419 U.S. 102 (1974) (relying on statements made by Representative at oral arguments as evidence the Act did not withdraw Tucker Act as remedy for just compensation).

See my thoughts on legislative history and statutory interpretation in this article, titled This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose.

Update: Yaakov R. sent me this cool story from the Western Standard, titled The Framers Revolt . The article interviewed the premiers who signed Canada’s charter of rights and freedoms in 1982, and asked them what they thought of the way it had subsequently been interpreted:

Twenty-three years after signing the charter, surviving premiers have something to say about the way their creation is being used by politicians and the court.

Now the surviving framers of 1982’s Constitution Act, which includes the charter, have themselves weighed in on the debate. And what do they think about the way their creation has been used to so substantially shape Canadian policy over the last 23 years? Of the 11 first ministers who participated in the final, two-year marathon of bargaining that ended a half century-long impasse over patriation of the Constitution, seven are still around. All were contacted for this story, and five responded. Of those, nearly all testified that the courts have done things in the name of the charter that astonish and in some cases infuriate them. They fear for the future of responsible government in Canada. All five agreed the balance of power rests on the political rehabilitation and prudent use of the democratic fail-safe mechanism they forced on the late prime minister Pierre Trudeau–the “notwithstanding” or “opting out” clause enshrined in Section 33 of the charter.

The surviving framers of the charter are elderly men now, most of them long retired from the hurly-burly of partisan politics. The former premiers of Ontario and British Columbia, Bill Davis and Bill Bennett, declined to be interviewed for this story. Davis was allied with Trudeau and so, presumably, shared the latter’s view that the notwithstanding clause weakened the charter. Bennett, on the other hand, was a member of the so-called Gang of Eight premiers who fought for the notwithstanding clause, insisted on an amending formula that respected the principle of provincial equality (at the expense of the deux nations model of the federation), and thwarted Trudeau’s attempt to patriate the Constitution without provincial consent. They succeeded on all fronts, ironically enough, through a successful challenge in the Supreme Court of Canada.