The Incompatibility of Textualist and Originalist Approaches to Legislative History

One of textualism’s organizing principles is its rejection of “intent” or “purpose” derived from legislative history.¹ But originalism’s organizing principle is its embrace of historical sources — often forms of legislative history like The Federalist² and ratification debates — to echolocate the Constitution’s “original public meaning.”³ In other words, while the Court’s textualist-originalists use legislative history to find constitutional meaning,⁴ the same Justices reject legislative history in finding statutory meaning. The justification for this contradiction is not immediately clear. After all, most textualist-originalists view textualism and originalism as identical enterprises,⁵ or “little more than different ways to say the same thing.”⁶ And constitutional legislative history may be just as unreliable — and grant judges just as much discretion to reach desired ends — as statutory legislative history.

Professor William N. Eskridge, Jr., raised this tension in an important 1998 piece, Should the Supreme Court Read The Federalist but Not Statutory Legislative History?⁷ There, Eskridge tentatively concluded that this discrepancy may be justified.⁸ But since then, little scholarship has examined whether originalists may legitimately utilize sources like The Federalist while shunning sources like congressional committee reports.

It is time to settle the debate. This Note concludes that textualist and originalist approaches to legislative history are incompatible. Specifically, this Note collects — and dismisses — three leading justifications for this differential treatment of legislative history. First, scholars and jurists argue that statutory legislative history is uniquely unreliable and manipulable compared to constitutional legislative history.⁹ Second, some scholars argue that constitutional legislative history is more justifiable given the abstract and open-ended nature of the Constitution.¹⁰ Third, some scholars argue that textualist-originalists’ disparate treatment of statutory legislative history stems from the unique authority belonging to the Framers.¹¹ But these arguments overlook that constitutional legislative history may be just as unreliable and malleable as its statutory counterpart; that judges often face irreducibly vague statutory text that lacks clear legal content; and that originalists consistently reference lesser-known Framers of the Reconstruction Amendments — not mythical Founding figures — in determining constitutional meaning.

This Note also explores potential resolutions to this contradiction in textualist-originalist methodology. At first blush, it might seem that textualist-originalists must completely eschew legislative history or totally embrace it. But there is another path. Textualist-originalists should embrace some forms of statutory legislative history: namely, that which reveals the “mischief” a statute aims to solve.¹² Originalists have long relied on the mischief rule to interpret constitutional text. And mischief-focused legislative history may be more reliable than other forms of legislative history, as it enjoys a lower risk of strategic manipulation.

This Note proceeds as follows. Part I briefly canvasses how textualists resist legislative history in statutory interpretation but utilize intentionalist legislative history in interpreting the Constitution. Part II raises — and dismisses — common justifications for textualist-originalists’ contradictory approach to legislative history. Part III canvasses possible paths to harmonizing textualist-originalists’ inconsistent posi­tion, concluding that textualists should accept “mischief”-revealing legislative history into the textualist toolkit. A brief Conclusion follows, noting that the textualist imperative to consult legislative history has never been greater than in the wake of Loper Bright Enterprises v. Raimondo’s¹³ elimination of Chevron¹⁴ deference.

I.  The Legislative History Paradox

Legislative history was once the prized arrow in the Supreme Court’s interpretive quiver. The Court prided itself on being a faithful agent of Congress and believed that fulfilling this role required it to ascertain the purpose or intent behind statutory text.¹⁵ For much of the twentieth century, using legislative history — “records and documents that were created within the legislature during the process by which the legislature enacted a statute . . . that are distinct from the statutory text that the legislature enacted”¹⁶ — was considered the best way to glean such purpose or intent.¹⁷

But beginning in the 1980s, a phalanx of textualists led by Justice Scalia mobilized against legislative history.¹⁸ Textualists doubted the existence of collective legislative “intent,”¹⁹ arguing that “there is no way to tell what [legislators] intended except the text.”²⁰ Textualists argued that only the enacted text — and not unenacted intents and purposes — had traveled through bicameralism and presentment.²¹ Textualists further worried that legislative history vastly expanded judicial discretion, allowing judges to cherry-pick favorable pieces of legislative history to reach preferred interpretations.²² Finally, textualists warned, widespread judicial acceptance of the tool encouraged crafty congressional staffers to manipulate courts by sneaking favorable legislative history into the congressional record.²³

Despite occasional concessions about its utility,²⁴ textualists on the modern Court remain averse to legislative history. Recently, Justices Thomas, Alito, Gorsuch, and Barrett declined to join Part IV-B of Justice Jackson’s otherwise unanimous opinion in Delaware v. Pennsylvania²⁵ — seemingly because Justice Jackson devoted Part IV-B to how the statute’s legislative history supported the Court’s holding.²⁶ More explicitly, in the 2018 decision of Digital Realty Trust, Inc. v. Somers,²⁷ three textualist Justices wrote separately to reaffirm Justice Scalia’s categorical aversion to legislative history. In a short concurrence, Justice Thomas, joined by Justices Alito and Gorsuch, chided the majority’s use of a congressional committee report to interpret a statute and specified that he joined the majority “only to the extent it relie[d] on the [statute’s] text.”²⁸ Raising, as one scholar puts it, “the illegitimacy of intent as a matter of principle, and the associated illegitimacy of legislative history” as a whole,²⁹ the concurring Justices admonished that “we are a government of laws, not of men, and are governed by what Congress enacted rather than by what it intended.”³⁰

But the Court’s originalists³¹ use one form of legislative history repeatedly: constitutional legislative history, such as The Federalist, the writings of the Framers, and constitutional ratification debates. Originalists claim that such legislative history demonstrates the Constitution’s original public meaning. Justice Scalia, for example, noted that originalists who “invoke the Founding Fathers” treat the Framers’ thoughts as “strong indications of what the most knowledgeable people of the time understood the words to mean.”³² On this view, the views of the Framers found in constitutional legislative history operate as a sort of “topical equivalent of Samuel Johnson’s dictionary or any other usage guide.”³³

But “dictionary equivalent” does not describe how the modern Court’s originalists use constitutional legislative history. Originalists recurringly use Framing intent or purpose derived from legislative history as key tools for determining the Constitution’s original public meaning.³⁴ Take Students for Fair Admissions, Inc. v. President & Fellows of Harvard College³⁵ (SFFA). In this case, the Court relied heavily on legislative history — floor statements from the Fourteenth Amendment’s congressional ratification debate — in determining that race-conscious admission policies at public universities violate the Equal Protection Clause. Among other reasoning from precedent,³⁶ the majority used legislative history to establish, as a matter of “historical fact,”³⁷ that “the transcendent aims of the Equal Protection Clause” were to establish a colorblind Constitution.³⁸ Quoting floor statements from multiple congressmen, the Court noted:

To its proponents, the Equal Protection Clause represented . . . “the absolute equality of all citizens of the United States politically and civilly before their own laws.” The Constitution, they were determined, “should not permit any distinctions of law based on race or color,” because any “law which operates upon one man [should] operate equally upon all.”³⁹

As Professor Cass Sunstein puts it, this “rapid and all-important paragraph, beg[an] the core of the Court’s analysis . . . . [W]hile the [legislators] did speak of equality, it would be extravagant to take anything in their words to forbid affirmative action programs.”⁴⁰

The concurrence of Justice Thomas, the dean of the Court’s originalists, was more pronounced in its use of legislative history. Justice Thomas cited more floor statements to establish that “the Amendment was designed . . . to establish a nondiscrimination rule that could not be repealed by future Congresses.”⁴¹ His concurrence cited one Pennsylvania legislator’s belief that the amendment sought to make “‘justice [what it] is represented to be, blind’ to the ‘color of [one’s] skin.’”⁴² Justice Thomas noted another senator’s question about whether “one measure of justice is to be meted out to a member of one caste while another and a different measure is meted out to the member of another caste.”⁴³ This legislative history — combined only with the fact that the Fourteenth Amendment did not explicitly mention race⁴⁴ — was enough for Justice Thomas to conclude that the Fourteenth Amendment “is color-blind.”⁴⁵ (Justice Thomas even invoked post-ratification legislative history, citing floor debates over the Civil Rights Act of 1875 as “further evidence for the colorblind view of the Fourteenth Amendment,”⁴⁶ since proponents “asserted that ‘free government demands the abolition of all distinctions founded on color and race.’”⁴⁷)

Textualists would blanch at these moves — invoking paltry floor statements to demonstrate Congress’s “design” for a legal text — if they occurred in statutory interpretation. So SFFA’s use of constitutional legislative history is puzzling, given that originalist Justices and scholars consider originalism and textualism to be identical interpretive enterprises.⁴⁸ As then-Professor Barrett once said:

Just as . . . “[a textualist] hews closely to the rules embedded in the enacted text, rather than adjusting that text to make it more consistent with its apparent purposes,” so too an originalist submits to the precise compromise reflected in the text of the Constitution. That is how judges approach legal text, and the Constitution is no exception.⁴⁹

Justice Scalia wrote that “the Constitution . . . is in its nature the sort of ‘law’ that is the business of the courts — an enactment that has a fixed meaning ascertainable through the usual devices familiar to those learned in the law.”⁵⁰ Indeed, examples abound where the Court’s originalists treat constitutional cases like prototypical statutory interpretation questions, utilizing dictionaries⁵¹ and linguistic canons⁵² to interpret the Constitution’s text according to its original public meaning.⁵³

Even more curiously, constitutional legislative history seems to share statutory legislative history’s pitfalls. For one thing, constitutional legislative history raises the same formalist problems of the Founders’ extratextual intent being treated as binding law, despite not proceeding through a democratic enactment process. On a quick read of Seila Law LLC v. CFPB,⁵⁴ for example, one would think that The Federalist is a binding legal text. The most important propositions of the opinion are held up by citations of The Federalist or constitutional legislative history rather than constitutional text or past Court decisions⁵⁵ — seemingly allowing the unenacted views of James Madison to enjoy the force of binding law.

II.  Justifications for Legislative History’s Disparate Treatment

Part II collects a taxonomy of how scholars and originalist jurists have defended — or could defend — legislative history’s disparate treatment. First, commentators argue that statutory legislative history is less reliable than constitutional legislative history. Second — and perhaps more controversially — commentators argue that interpreters can permissibly use constitutional legislative history to “construct” vague constitutional text. Finally, some scholars suggest that originalists use legislative history like The Federalist as an “appeal . . . to national ethos, political tradition, and honored authority.”⁵⁶ All of these arguments fail to convincingly justify statutory and constitutional legislative history’s disparate treatment. Indeed, some of these explanations only further justify the need for textualists to adopt statutory legislative history as a legitimate interpretive tool.

A.  The Manipulability Problem

To justify their aversion, some textualist-originalists argue that statutory legislative history is more susceptible to strategic manipulation than constitutional legislative history. Records of Founding-era constitutional “deliberations were generated at a time when no one thought that courts would use legislative history or constitutional history in interpreting a text,” as one scholar put it.⁵⁷ Conversely, when acceptance of legislative history is high, congressional staffers are more likely to strategically generate material to steer courts toward their favored interpretations. Professor Nicholas Parrillo notes how “lawyer-lobbyists” sympathetic to New Deal programs in the 1930s and ’40s drafted legislative history for the same statutes they lobbied for; these lawyers would then cite the same legislative history when appearing before courts, attempting to cast the statute in their preferred light.⁵⁸ This possibility leads textualists to claim that the more that judges allow statutory legislative history, the less useful it becomes.⁵⁹

This is a strong objection to statutory legislative history’s use — though it does not completely justify the Court’s preferential treatment of constitutional legislative history. As Eskridge notes, the essays of The Federalist “were propaganda documents, seeking (often disingenuously) to rebut the arguments of the Anti-Federalists, [leaving] some historians . . . reluctant to conclude that The Federalist even honestly reflects the views of Madison and Hamilton themselves.”⁶⁰ At least one prominent originalist scholar acknowledges that The Federalist was “a piece of propaganda meant to convince people to vote for the Constitution.”⁶¹ Other scholars have examined how James Madison revised copies of his notes to the 1787 Constitutional Convention — raising questions about whether Madison’s interpretation of the Constitution shifted in the years after the convention.⁶² If originalists can overcome the unreliability of The Federalist and the Constitutional Convention, it appears that they can also wade through conflicting and potentially misleading portions of legislative history.

Perhaps most importantly, constitutional legislative history seems to vastly expand judicial discretion, allowing judges to cherry-pick historical evidence to support their preferred interpretations. In his SFFA concurrence, Justice Thomas presented three congressional floor statements to support a colorblind view of the Constitution.⁶³ But the dissent located legislative history supporting the view that “Congress enshrined a broad guarantee of equality in the Equal Protection Clause.”⁶⁴ The dissent also noted that Congress passed, near the time of the Fourteenth Amendment’s enactment, a variety of race-conscious laws that the Framers understood to be race-conscious.⁶⁵ “[T]he trick” — no less in constitutional than in statutory legislative history — seems to be “to look over the heads of the crowd and pick out your friends.”⁶⁶

Of course, statutory legislative history is distinguishable from constitutional legislative history in an important way: The latter is a closed record, while the former can be continually generated by congressional staffers. “Thus,” Eskridge writes, “for the time being, the Court’s willingness to credit the explications in The Federalist poses little if any risk of corrupting future constitutional conventioneers the way the Court’s willingness to credit legislative history has corrupted the ongoing process of ordinary legislation.”⁶⁷ But law professors and amici can continually generate novel historical arguments from even the closed record of constitutional legislative history. While legislative history may be more manipulable ex ante, constitutional legislative history can be just as manipulable ex post. The potential for illicit influence of courts remains substantial in both contexts.

B.  Construction and the Rule of Necessity

Another explanation for statutory legislative history’s disparate treatment may lie in the distinction between two interpretive methods: constitutional “interpretation” and “construction.” Interpretation looks at “[t]he communicative content” of the Constitution, as “determined by facts about conventional semantic meanings and syntax . . . and facts about the relevant context of constitutional communication.”⁶⁸ Construction, on the other hand, recognizes that constitutional provisions are often abstract and open-ended, requiring judges to venture beyond a text’s semantic meaning.⁶⁹ Professor Keith Whittington argues that “[c]onstitutional meaning must [sometimes] be ‘constructed’” when a legal text is “unavoidably vague, leaving substantial uncertainties about cases that arise on the margins.”⁷⁰ In other words, construction inescapably requires some act of invention or creation by judges to give meaning to vague legal text. While construction is controversial in originalist circles,⁷¹ some prominent originalists assert some amount of construction is necessary in constitutional interpretation.⁷²

Eskridge argues that the need for constitutional construction arguably justifies originalists’ use of constitutional legislative history. As he writes, “the open-textured Constitution” tends to “cr[y] out for more context”⁷³ as compared to more prolix and concrete statutory text. Thus, Eskridge argues that a “rule of necessity” may require the Court to use legislative history in constitutional (but not statutory) interpretation, deviating from a “baseline rule . . . that drafting and debating history should be avoided in the interpretation of public law.”⁷⁴

Scholars have long observed that the Court engages in construction when interpreting vague constitutional text. In his Harvard Law Review Foreword, A Political Court, Judge Posner argues that the Supreme Court is a “political” or “lawless” body, particularly in constitutional cases dealing with vague provisions.⁷⁵ By “lawless,” Judge Posner means not that the Court is immoral or partisan, but instead that the Court faces “an absence of tight constraints, an ocean of discretion”⁷⁶ — adrift in a sea of subjective judgments with no real positive law to guide it, given the vague and ancient text of the Constitution. Because of this, Judge Posner argues, the Supreme Court “ha[s] and exercis[es] discretionary power as capacious as a legislature’s” — that is, it is fundamentally political.⁷⁷

Where does constitutional legislative history fit into this? Textualist-originalists are surely deeply uncomfortable with the charge that interpreting vague constitutional text is inescapably discretionary and political. Because of this, these Justices seek to constrain their own discretion. Sometimes, of course, the Court does this by hewing to its accumulated body of precedent.⁷⁸ But, other times, originalists avoid such lawlessness by relying on constitutional legislative history. On this view, then, sources like The Federalist or ratification debates serve as passable material for constructing vague constitutional text. Better some ephemera of democratic legitimacy — the intentions of the Framers, as expressed through legislative history — than unmoored subjectivity.

Justice Kavanaugh’s concurrence in United States v. Rahimi⁷⁹ explicitly recognizes this dynamic. Echoing the interpretation-construction debate, Justice Kavanaugh candidly portrayed constitutional legislative history as a backstop — a lesser evil — that the Court falls on when clear constitutional meaning runs out.⁸⁰ “[A]bsent precedent, there are really only two potential answers to the question of how to determine exceptions to broadly worded constitutional rights: history or policy.”⁸¹ To Justice Kavanaugh, this definition of “history” includes constitutional legislative history: sources that reveal “the stated intentions and understandings of the Framers and Ratifiers of the Constitution (or, as relevant, the Amendments).”⁸² Because “[h]istory is far less subjective than policy,” Justice Kavanaugh wrote, such “[h]istory establishes a ‘criterion that is conceptually quite separate from the preferences of the judge himself[]’ . . . [which] helps ensure that judges do not simply create constitutional meaning ‘out of whole cloth.’”⁸³ In other words, constitutional legislative history allows judges to construct meaning from something — anything — apart from their subjective policy preferences.

But if the need for “construction” truly justifies the use of constitutional legislative history, then it just as strongly justifies the use of statutory legislative history. After all, the U.S. Code overflows with vague statutes that provide no clear legal directive to judicial interpreters. These vague statutes lend themselves to precisely the kind of unrestrained judicial discretion that originalists aim to purge from constitutional interpretation. For example, what does it mean when a statute demands “restoration of the natural quiet”?⁸⁴ How can a court determine the rates “that most clearly represent the rates and terms that would have been negotiated in the marketplace between a willing buyer and a willing seller”?⁸⁵ What constitutes “decent, safe, and sanitary dwellings”?⁸⁶

Indeed, the Justices themselves acknowledge that some statutory choices place them in a “lawless” position, with interpretive choices coming down to personal discretion. In an analogous context, then-Judge Kavanaugh wrote that “[i]t is difficult for judges” to determine whether statutory language is ambiguous in any “neutral, impartial, and predictable fashion.”⁸⁷ “That’s because,” he wrote, “there is no right answer.”⁸⁸ Ambiguity is a different concept than a statutory “gap,” but not by much. If a legal text is ambiguous, then it does not provide judges with an intelligible legal directive, at least initially. Justice Kavanaugh warned that “[j]udgments about ambiguity . . . are dangerous . . . because they are easily biased by strong policy preferences that the makers of the judgments hold.”⁸⁹ “No wonder,” Justice Kavanaugh concluded, “people suspect that judges’ personal views are infecting these kinds of cases.”⁹⁰

Statutory legislative history might provide a similar toehold for the Court’s textualist-originalists as constitutional legislative history does: helping the Justices avoid interpreting ambiguous text “out of whole cloth.”⁹¹ Of course, judges also have an arsenal of canons of interpretation to deploy when interpreting vague statutory text. However, such canons may do little to constrain judges’ policy preferences. In fact, canons may be mere window dressing to obfuscate the extent to which judges’ personal policy preferences guide their interpretation.⁹² In statutory interpretation cases involving irreducibly vague text — just as much as in constitutional interpretation — legislative history may be the only way for judges to avoid the “lawless” interpretation that Judge Posner warned about.

C.  Constitutional Legislative History and Moral Authority

Some scholars have argued that the Court’s differential treatment of constitutional and statutory legislative history can be traced to the fact that “the intentions of the drafters . . . wield[] normative authority in constitutional argument.”⁹³ As Professor Jamal Greene argues, originalists have long conducted constitutional interpretation in a way that aims, “as a normative matter, [to] reflect the values, expectations, or intentions of the individuals responsible for declaring American independence, defeating the British in the American Revolution, and drafting and ratifying the Constitution.”⁹⁴ Professor Jack Balkin concurs.⁹⁵ On this view, uses of constitutional legislative history are less methods to ascertain original public meaning, but more ethical appeals to the constitutive, mythical ethos of the Framing period. This explains why originalists on the Court rarely cite legislative history in statutory interpretation: because the modern Congress consists of humdrum legislators, not the mythic figures — like Madison, Jefferson, or Hamilton — that give constitutional history its ethical force.

While this ethical, value-laden intentionalism as described by Greene and Balkin may contribute to the Court’s use of constitutional legislative history, it does not provide a full answer. After all, originalists consistently cite the intent of lesser-known Framers — not looming constitutional figures — in determining constitutional meaning. For example, for his conclusion that the Fourteenth Amendment is colorblind in SFFA, Justice Thomas cited the intent of obscure congressmen who spoke during the amendment’s ratification debates.⁹⁶ This reliance on obscure figures shows that the “honored authority” explanation cannot be doing all of the work in explaining the legislative history paradox.

III.  A Path to Harmonization

As Part I has explained, there is a dissonance in how textualist-originalists treat statutory and constitutional legislative history. And as Part II has explained, none of the most common attempts at reconciling this dissonance are satisfactory. Part III turns to how this inconsistency might be resolved — and how textualist-originalists might harmonize their incompatible views on constitutional and statutory legislative history.

There are several options. Most obviously, textualist-originalists might completely eschew — or completely embrace — legislative history in both the statutory and constitutional interpretation contexts. But constitutional legislative history is central to the originalist enterprise of determining the Constitution’s original public meaning, making such an exclusionary rule unlikely. Nor are textualists likely to unqualifiedly embrace all forms of statutory legislative history after decades of disapproval.

But there is another way to harmonize textualism and originalism’s conflicting positions: for textualist-originalists to use some forms of legislative history for some purposes.⁹⁷ Specifically, textualists should accept statutory legislative history that demonstrates the “mischief” a statute was enacted to solve.⁹⁸ This methodology would closely parallel how originalists approach constitutional legislative history. Often, originalists consult The Federalist or ratification debates to understand the background concerns that motivated constitutional text. In both constitutional and statutory contexts, the problem that prompted the passage of a legal text provides crucial context for interpreting it. And such mischief-focused legislative history may be more reliable and less manipulable than other forms of legislative history.

Originalists often use the mischief rule in constitutional interpretation. For example, in interpreting the Fourth Amendment, the Court has acknowledged that “[t]he Founding generation crafted the Fourth Amendment as a ‘response to the reviled general warrants and writs of assistance of the colonial era.’”⁹⁹ Arizona v. Gant¹⁰⁰ restricted police officers’ ability to search arrestees after noting that “the central concern underlying the Fourth Amendment . . . [was] giving police officers unbridled discretion to rummage at will among a person’s private effects.”¹⁰¹ Recently, in noting that the Sixteenth Amendment created the federal income tax as an indirect tax that did not need apportionment, Justice Kavanaugh observed that “Congress and the States responded to Pollock”¹⁰² — a contrary prior opinion by the Court¹⁰³ — “by approving a new constitutional amendment. . . . [T]he Sixteenth Amendment rejected Pollock’s [reasoning].”¹⁰⁴ In other words, in interpreting ambiguous or vague provisions of the Constitution, the factual circumstances that motivated or prompted their passage are crucial interpretive grist.

This makes sense. Textualist-originalists often pronounce the need to view “text in context.”¹⁰⁵ “To strip a word from its context is to strip that word of its meaning,” Justice Barrett has warned.¹⁰⁶ Oftentimes, this context can come from the surrounding statutory text or the statutory structure.¹⁰⁷ But other times, “[c]ontext is not found exclusively ‘within the four corners of a statute’”¹⁰⁸ —  and external forces — such as “common sense”¹⁰⁹ — can serve as important context.

Mischief-revealing legislative history provides such “common sense” context. After all, “philosophers of language and linguists standardly understand context to include the speaker’s intentions.”¹¹⁰ As Professor Lawrence Solum argues, a text’s “[c]ommunicative [c]ontext” includes “general background facts that elucidate the aim or purpose.”¹¹¹ Even originalist Justices explicitly note this point in the constitutional context. In his Rahimi concurrence, Justice Kavanaugh wrote that “[w]hen interpreting vague constitutional text, the Court typically scrutinizes the stated intentions and understandings of the Framers and Ratifiers of the Constitution (or, as relevant, the Amendments)” as “strong evidence of meaning.”¹¹²

Modern textualists have even obliquely acknowledged that a statute’s mischief helps determine its meaning — though they have stopped short of fully embracing legislative history to find said mischief. For example, in Fischer v. United States,¹¹³ the Court interpreted a provision of the Sarbanes-Oxley Act¹¹⁴ that prohibits destroying and tampering with evidence¹¹⁵ or “otherwise obstruct[ing], influenc[ing], or imped[ing] any official proceeding.”¹¹⁶ Reviewing the United States’ decision to charge an alleged January 6 rioter with “obstruct[ing] . . . or imped[ing]” a congressional proceeding,¹¹⁷ the Fischer Court rejected the government’s prosecution, applying what resembled a mischief rule. The Court noted that the provision “was enacted to address the Enron disaster”¹¹⁸ and “to plug [a] loophole” that thwarted evidence-tampering prosecutions of Enron officials.¹¹⁹ Thus, “it [was] unlikely that Congress responded [to the Enron scandal] with such an unfocused and ‘grossly incommensurate patch’” that extended to the Fischer defendant’s alleged actions on January 6.¹²⁰

Rather than consult legislative history, the Chief Justice relied on the principle of party presentation to identify the statute’s mischief. “The parties agree that to plug [the] loophole [at issue], Congress enacted Section 1512(c) . . . as part of the broader Sarbanes-Oxley Act,” the Chief Justice wrote.¹²¹ But Fischer presents a shining example of when the Court’s textualists might have legitimately used legislative history. The circumstances that impelled the Sarbanes-Oxley Act’s passage serve as “common sense” context illustrating how a reasonable observer would read the statutory language. Indeed, in a concurrence, Justice Jackson made just that argument, demonstrating that Congress was concerned about document destruction — not general obstruction of government proceedings — when it passed the Sarbanes-Oxley Act.¹²² If the parties in Fischer had not agreed on the mischief, then only legislative history could have revealed the background problem that spurred the Sarbanes-Oxley Act’s passage.

And while courts may occasionally take judicial notice of “the public history of the times in which [a statute] was passed”¹²³ without relying on legislative history, such judicial notice would likely miss more subtle mischiefs that drive many statutory enactments — but which are no less important for determining a statute’s context. Take, for example, Justice Jackson’s opinion in Delaware v. Pennsylvania. In this case, the Court examined a dispute between the two states over the right to claim unclaimed funds from certain financial instruments, specifically MoneyGram’s “Agent Checks and Teller’s Checks (collectively, the Disputed Instruments).”¹²⁴ The Federal Disposition Act¹²⁵ specifies that funds from abandoned “money order[s]” and “similar written instrument[s]” — but not “third party bank check[s]” — should generally go to the state where they were purchased, rather than the state where the issuing company is incorporated.¹²⁶ The key question in the case was whether MoneyGram’s checks were “similar written instruments” to money orders or “third party bank checks.”¹²⁷

Writing for a unanimous Court, Justice Jackson held that the Federal Disposition Act covered the disputed instruments because they were sufficiently “similar to money orders.”¹²⁸ Notably, in Part IV-B of the opinion, Justice Jackson dismissed an argument that the Disputed Instruments were “third party bank checks,” in part because “the phrase ‘third party bank check’ . . . was inserted into [the statute] under well-documented circumstances”¹²⁹ — that is, in response to a letter from the General Counsel of the Treasury Department.¹³⁰ The General Counsel “was concerned . . . that the phrase ‘money order, traveler’s check, or similar written instrument’ . . . could be interpreted to cover ‘third party payment bank checks.’”¹³¹ In response, Congress “adopted [the General Counsel’s] recommendation” to clarify the statute, Justice Jackson wrote.¹³² In light of this background, Justice Jackson concluded that the phrase “third party bank checks” can be “reasonably viewed as merely clarifying the intended initial scope of coverage” — rather than creating a new category for “express exemption.”¹³³

Justice Jackson’s use of legislative history is one that textualists should applaud. A reasonable reader better understands the meaning of “third party checks” when they understand the factual circumstances that drove Congress to include that language. As one commentator puts it: “Language is little more than shared meanings, and it is surely legitimate to assign meanings to statutes based on the shared understandings of those who enacted the statute . . . .”¹³⁴ And as discussed above, this is a move that the Court’s originalists countenance — or embrace — when interpreting the Constitution.

Still, some commentators argue that this mischief-focused legislative history would be unrestrained purposivism in disguise. For example, “an interpreter might identify a mischief . . . when in fact there was no mischief, or . . . [the mischief] was ‘sufficiently broad . . . that it is basically indistinguishable from a general purpose.’”¹³⁵ But as Professor Samuel Bray notes, there is a clear line of demarcation between mischief and purpose. “[M]ischief is the problem that precedes the statute and the legal deficiency that allowed it,” while “purpose” is a more amorphous concept that “impute[s] to the legislature . . . an aim going forward.”¹³⁶ As Bray points out, saying that “mischief” is indistinguishable from purpose is like saying “context” is indistinguishable from purpose.¹³⁷ The Court’s textualist-originalists have roundly rejected this assertion.

And of course, one might argue that even if statutory legislative history can helpfully reveal a provision’s mischief, it is still less reliable than constitutional legislative history: It is more likely to be strategically generated to influence courts. But mischief-revealing legislative history is likely to be more reliable — and offer less opportunity for gamesmanship — because it deals with factual scenarios. Such mischief-revealing legislative history will point to an external event that can be corroborated as fact. This legislative history merely draws a connective tissue between this verifiable fact and an action taken by Congress. It is much more difficult to fabricate a real-world, verifiable event’s connection to a piece of legislation than it is to fabricate abstract and general purposes.

Conclusion

All in all, this Note argues for textualist consistency. The Court’s textualists use legislative history in constitutional interpretation but abhor legislative history in statutory interpretation. No argument adequately justifies this disparate treatment. Given this, textualist-originalists should embrace some form of statutory legislative history: namely, that legislative history that reveals the “mischief” that a statute was enacted to address.

The imperative for textualists to utilize some form of legislative history has never been greater. Chevron operated as a pressure-release valve on irreducibly vague statutory language. According to one count, appellate courts found regulatory statutes ambiguous at Chevron step one in 70% of cases — passing off such unanswerable questions to the executive branch.¹³⁸ But Loper Bright means that many vague regulatory statutes will no longer be afforded such luxury, given the Court’s insistence that “a single, best meaning” of each statute exists.¹³⁹ Courts must now fill many of these gaps themselves.¹⁴⁰ The context — or the construction — afforded by statutory legislative history may be an essential tool for this task.

This Note does not argue that reliance on legislative history will always be appropriate (or that on-point legislative history will always be available¹⁴¹). Legislative history may be scant, or replete with contradictory or incomplete statements. And the days of Citizens to Preserve Overton Park, Inc. v. Volpe¹⁴² or Church of the Holy Trinity v. United States,¹⁴³ where legislative history could overturn clear statutory text,¹⁴⁴ need not return. Moreover, this is not to say that there will never be reasonable disputes over the “mischief.” As was the case in SFFA, the majority and dissent disputed the main driver of the Fourteenth Amendment: solving Black inequality in American society or creating a colorblind antidiscrimination rule.¹⁴⁵

Nor does this Note comment on the relative merits of textualism as an enterprise. To some, textualism is a wrongheaded tool. Statutory interpretation should center, as its lodestar, legislative purposes or intentions, of which statutory text can be only an imperfect simulacrum.¹⁴⁶ But this Note takes up textualism on its own premises: that enacted text, viewed in context, is the law. To find that context, legislative history can be — and should be — a crucial tool. At least, this Note argues, that is what originalists have long seemed to say.