Scalia, Great Justices, and legislative history

Clanton, Brad Brad.Clanton at MAIL.HOUSE.GOV
Fri Mar 9 15:20:33 PST 2001

Bill Funk wrote:

"Todd Zywicki wrote:

> There is yet another key influence of Scalia.  When Congress writes
> legislation now, members are acutely aware that there is some
> possibility that legislative history may be ignored when the statute is
> interpreted.

I would like to see the empirical evidence for this statement.  They may
constructively be on notice, but I think Prof. Zywicki assumes a lot more
about what
congress people know than is true.  The pros and cons of the use of
history may be a topic among some law professors, litigators, and judges; it
is not
among non-lawyers (still the majority of Congress) or lawyers-in-name only
remainder of Congress, except for one or two)."

I can't speak for everyone on Capitol Hill, but I can tell you that there
are plenty of us who draft legislation, committee reports, and floor
statements all of the time, who are keenly aware of the stigma that has
attached to legislative history primarily because of Justice Scalia.  Many
approve of that stigma, and many do not.  But those who are most involved in
the creation of this material -- lawyers or not -- definitely know the
implications of what they are doing.

Brad Clanton
House Judiciary Committee
Constitution Subcommittee
362 Ford House Office Building
Washington, D.C. 20515
202.226.7685 (phone)
202.225.3746 (fax)

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