Clause 1 of the powers.

[Chris SCHROEDER]

There is an ambiguity in Tom Grey's formulation of the appropriate
textualist use of legislative history that may be worth exploring.  When
one says that "legislative history is relevant as evidence of linguistic
meaning" is the reference to "linguistic meaning as understood generally
at the time" or to "linguistic meaning as understood by the enacting
Congress?"  For me, the relevant inquiry ought to be the second, bounded
by the first (in a way I explain in a moment).  That is to say, at the
first step of the analysis we ought to be interested in what the persons
doing the enacting thought they were doing.  Against this, (as just one
of their arguments in support of their view) textualists say that we
ought rather to be interested in what persons affected by the law
thought the Congress had done.

There is a good deal to the point that laws need to give fair warning,
and that one way to accomplish that goal is to insist that words in
statutes take their general linguistic meaning.  I would take that point
into account by being very suspicious of any argument claiming that
words in statutes had been used by Congress in an unusual way.  In other
words, the range of meanings over which I would be interested as a judge
in hearing argument would be the range of meanings that citizens, acting
in good faith, would concede might reasonably have been among the
meanings Congress had in mind.  As long as a statute could reasonably
have been read to have several possible interpretations at the time, the
fair warning point does not count heavily against finding out what
Congress actually had in mind.

That being said, I think legislative history is often relevant to
determining what members of Congress thought a statute was doing,
although just because it is relevant doesn't mean that it always or even
very often answers the question. It is relevant, furthermore, in many
more cases than just those in which there is a plausible claim of a
meaning shift between then and now; it is at least relevant whenever
there is more than one plausible reading.

Of course, there are good, tough issues as to why and when the
understandings of a few members ought to be attributed to the action of
the body as a whole.  On these, I think the work by McNollgast on
statutory interpretation has much to say.



Tom Grey wrote:

As a non-believer, I still think I can state textualist doctrine.
Legislative history is relevant as evidence of linguistic meaning, but
has
no special status. And textualism saves effort over subjective
intentionalism because under the latter doctrine, legislative history
is
relevant in every case, whereas under the former, historical delving
is
relevant only in the much rarer cases where there is a plausible claim
of
actual meaning shift between the time of enactment and the present.