7.5.1 LEGISLATIVE HISTORY
Legislative history is generally used in two senses: First and perhaps most commonly, the term refers to debates and reports that occurred when particular legislation was being enacted.
Courts are reluctant to rely too heavily on this type of legislative history because it is easy to “cherry-pick” — to find a random statement made in a random report that may or may not have had any influence on the resulting statute. The late Justice Scalia, a famous foe of legislative history, has referred to looking for legislative history as being like going to a crowded cocktail party and looking for your friends.22Nevertheless, courts often cite to legislative history, despite their reservations. As you will see, however, those citations are often contained in sentences that say things like “this analysis is confirmed by the statute’s legislative history, which shows....” Or, “the statute’s legislative history reinforces this conclusion.” Accordingly, you should probably avoid relying on legislative history as your sole justification for an interpretation. It can, however, be useful as a way to reinforce an interpretation based on other extrinsic sources, or on intrinsic sources.The term legislative history might also be used to talk about the actual chronological history of a statute. As you know, statutes go through various amendments both before and after they are enacted. If a particular clause was added or amended after court interpretation, it is valid to argue that the legislature made that amendment with the court interpretation in mind. Likewise, if a statute was amended after a court interpretation, but certain language was not amended, lawyers can argue that the legislature approved of the interpretation.
For example, in a 1994 decision about the Armed Career Criminal Act (“ACCA”), the Supreme Court noted that “Congress, despite the consistent interpretation of the ACCA as permitting attacks on prior convictions during sentencing, and despite amending the law several times since its enactment (see note following 18 U.S.C. § 924 (1988 ed. and Supp. V) (listing amendments)), left the language relevant here untouched.”23That Court cited with approval a 1983 decision in which it had said that Congress essentially “ratified” a well-established judicial interpretation of a statutory provision by leaving that language “intact” after a well-established judicial interpretation of that language.24
Accordingly, in your search for legislative history, use floor debates if you must, but go beyond those floor debates and look at the evolution of the language itself. If a significant decision interpreted that language, look to see if the legislature amended the statute after that interpretation; if it did so, note what it did — or did not do — to the relevant language, and see if it supports your argument.