Scalia Joined an Opinion That Cited Legislative History — And Lots of It. Hypocritical? I argue no.

July 7th, 2010

Justice Scalia prides himself on refusing to cite legislative history. In fact, he will usually refuse to join parts of an opinion that include citations, as he did several times this term (see here and here).

As he concurred in United States v. Carr this term:

I join the Court’s opinion except for Part III–C. I do not join that part because only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process, is an authori-tative indicator of the law. But even if those preenact-ment materials were relevant, it would be unnecessary to address them here.

Yet, in one case this term, he signs onto an opinion that is LOADED with legislative history–McDonald v. Chicago. I count at least a dozen citations to the Congressional Globe–the legislative history journal back in the 19th century. For example:

In debating the Fourteenth Amendment, the 39th Congress referred to the right to keep and bear arms as a fundamental right deserving of protection. Senator Samuel Pomeroy described three “indispensable” “safeguards of liberty under our form of Government.” 39th Cong. Globe 1182. One of these, he said, was the right to keep and bear arms:

“Every man … should have the right to bear arms for the defense of himself and family and his homestead. And if the cabin door of the freedman is broken open and the intruder enters for purposes as vile as were known to slavery, then should a well-loaded musket be in the hand of the occupant to send the polluted wretch to another world, where his wretchedness will forever remain complete.” Ibid.

So what gives? I thought “only the text Congress voted on, and not unapproved statements made or comments written during its drafting and enactment process” have the authority of law? Why is Scalia citing legislative history here? Is this hypocritical? I argue no.

I addressed this issue at some length in my article, This Lemon Comes as a Lemon. The Lemon Test and the Pursuit of a Statute’s Secular Purpose, 20 Geo. Mason U. Civ. Rts. L.J.  ____ (2010). SSRN. I argue that legislative history of an older vintage–such as the legislative history written during Reconstruction–is more reliable than legislative history of the modern era. Reliance on the former is more permissible than reliance on the latter. The reliability is due to the incentives to fabricate the record. Thus Scalia is not being hypocritical in McDonald (in this context at least).

From my article:

In District of Columbia v. Heller, a dissenting Justice Stevens called Justice Scalia to task for relying on historical documents subse- quent to the ratification of the Second Amendment, characterizing such statements as mired in “pitched political debates” and better characterized as “advocacy than good-faith attempts at constitutional interpretation.”166 Justice Stevens accused Justice Scalia of being hyp- ocritical for eschewing modern legislative history, while firmly embracing historical atextual sources, a lineal ancestor of modern leg- islative history.167 But is Justice Scalia being hypocritical? No.

Over time, has the nature of contemporary historical sources changed such that their reliability as indicia of original meaning has diminished? Is it possible that contemporary historical sources from earlier times are indicative of the meaning of a statute, whereas more recent contemporary sources are less indicative of the meaning of a law? As Justice Powell noted in Nixon v. Fitzgerald, not all historical sources are created equal.168 Justice Powell discounted Justice White’s dissent as relying on “fragmentary” historical sources and observed that “historical evidence must be weighed as well as cited.”169 Not all historical sources are created equally.

Although Justice Scalia has never mentioned it, he follows Justice Powell’s logic. Implicit in Justice Scalia’s reliance on some atextual sources but rejection of others is the presumption that not all historical sources are created equal.

From later in the article:

For this reason, older legislative history, where this incentive to fabricate did not exist, is more reliable than legislative history of recent vintage, where the incentive to fabricate is quite strong.189

This is an idea I only introduced in this article, but I hope to develop in future scholarship. I’m glad to see Scalia is giving me some fodder to work with.