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66 Geo. Wash. L. Rev. 1366 (1997-1998)
Restoring Context Distorting Text: Legislative History and the Problem of Age

handle is hein.journals/gwlr66 and id is 1374 raw text is: Restoring Context, Distorting Text:
Legislative History and the
Problem of Age
Stephen F. Williams*
I agree with the general viewpoint of Professor Eskridge's paper-that
consistent principles should govern the courts' treatment of legislative his-
tory, the history of both statutes and constitutional provisions. Of course, as
he recognizes, identical principles might lead to different results, given the
differences in the two contexts. Thus an inconsistency in treatment does not
necessarily betray an inconsistency in principle; indeed, I will suggest that
consistent principles do lead to different treatment-in a more straightfor-
ward way than Professor Eskridge suggests.
My comments will be brief, and limited to two propositions. First, Pro-
fessor Eskridge's view of how the Constitution's age affects matters seems to
vary sharply, depending on whether he is acting as the prosecution (against
the formalists) or the defense (of his alternative thesis). In my view, he has
it right when he speaks for the defense. Second, in trying to elide the differ-
ence between legislative intent and original meaning Professor Eskridge
ignores much of the mischief that goes on in judges' and advocates' use of
legislative history.
Professor Eskridge attacks reliance on The Federalist on the ground that
it operates upon assumptions that long ago died.1 Why, he asks,
should the views of Madison, who would have found the modern
regulatory state inconceivable, offer guidance as to issues of modern
administration once the nature of government has changed so
much?... [D]ebating history seems more relevant for interpreting
recently enacted statutes, in which the legislative expectations relate
to our current world. The history addresses issues sometimes still
alive. By contrast, the expectations for the grand old Constitution
relate to a long-departed world and address issues typically dead or
altered by changed circumstances.2
Let's stop here. Surely the differences that Professor Eskridge identi-
fies-Constitution old, statutes recent-suggest that on average there is
likely to be a far greater need for legislative history in the constitutional than
in the statutory context. There is a difference, of course, between ascertain-
ing an original understanding and approving it as sound, or even relevant to
current policy. Only the former is at issue here. Surely an older understand-
ing is harder to recover, precisely because it operates on long-dead assump-
* Circuit Judge, U.S. Court of Appeals for the D.C. Circuit.
1 William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statu-
tory Legislative History?, 66 GEo. WASH. L. REv. 1301, 1310 (1998).
2 Id. at 1310, 1311.
June/August 1998 Vol. 66 No. 5/6

1366

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