You can't be both an originalist and opposed to legislative history anyway.

Sure you can. One of the important reasons to ignore legislative history is that it is corrupt. Any similarity between the legislative history and the intent of the legislature is purely coincidental.

But the Framers were pure? How silly. It's not difficult to determine the intent of a law.

David,

What do you mean that legislative history is corrupt? Is the recording of the history corrupt, the legislature itself, the legislative process?

Senators bloviate about a proposed law in hearings and on the Senate floor, outlining a purpose that is the exact opposite of what other Senators intend. Thus their words become legislative history, but bear no relationship to the clear language of the statute itself.

For instance link. Sometimes as you see it is even a fake bloviation..thank god.

I don't get it. Are you confused about what the law was intended to do? Are you unaware that you cited the legislative history to demonstrate its intent?

OJ
If you are addressing my comment, it is obvious from the link that Kyl/Graham faked a debate, which fellow Senators could not contradict, because it did not happen.

You lost me after "obvious".

Obvious that other Senators could not contradict points made in the fake debate, because it didn't happen. If the court is looking to the record of the total debate, then is it not "obvious" that comments by other Senators might be different if they are reacting to Kyl/Graham points and thus the total legislative record would be different.

If I were able to comment on Illegal Mexican immigration, and you were not able to see those comments then you would not be able to counter my arguments (or god forbid delete them)

What matters is the intent of the entire legislature as they pass the legislation. The only source for that intent is the language used. So legislative history is always irrelevent. All that legislative history can tell you is what a particular lawmaker thought about the legislation. It doesn't express the intent of that chamber, and obviously has nothing to do with the other chamber. Sometimes its discussing another version of the bill and sometimes, when the legislator is allowed to revise and extend his remarks, it wasn't even said on the floor or heard by any other legislator.

And that's just if everyone's being honest. In fact, legislators and their staffs are always sneaking in comments that they know don't represent the entire legislature, just to leave Easter Eggs for the courts or agencies. I had one case where a Senator asked one of the drafters a planted question that would let his constituent out of the effect of a pending bill. The agencies involved and then the courts rolled over for the legislative history even though it clearly was contrary to the language of the act.

Here is Justice Scalia concurring in US v. Taylor, 407 US 326, at 343 (1988). Note how Mr. Denis equates an amendment approved by a vote of both houses and signed, as part of the entire law, by the president, to some legislative history that they make up as they go along.

I join the opinion of the Court except Part II-A, which is largely devoted to establishing, through the floor debate in the House, (1) that prejudice to the defendant is one of the factors that the phrase "among others" in 3162(a)(2) refers to, and (2) that that factor is not necessarily determinative. Both these points seem to me so utterly clear from the text of the legislation that there is no justification for resort to the legislative history. Assume that there was nothing in the legislative history except statements that, unless the defendant had been harmed by the delay, dismissal with prejudice could not be granted. Would we permit that to govern, even though the text of the provision does not consider that factor dominant enough to be mentioned specifically, but just includes it within the phrase "among othe[r] [factors]," or perhaps within the phrase "facts and circumstances of the case which led to the dismissal"? Or assume the opposite, that there was nothing in the legislative history except statements that harm to the defendant could not be considered at all. Would we permit that to govern, even though impairment of the accused's defense is so obviously one of the "other factors" highly relevant to whether the Government should be permitted to reinstitute the prosecution?

I think the answer to both these questions is obviously no. The text is so unambiguous on these points that it must be assumed that what the Members of the House and the Senators thought they were voting for, and what the President thought he was approving when he signed the bill, was what the text plainly said, rather than what a few Representatives, or even a Committee Report, said it said. Where we are not prepared to be governed by what the legislative history says - to take, as it were, the bad with the good - we should not look to the legislative history at all. This text is eminently clear, and we should leave it at that.

It should not be thought that, simply because adverting to the legislative history produces the same result we would reach anyway, no harm is done. By perpetuating the view that legislative history can alter the meaning of even a clear statutory provision, we produce a legal culture in which the following statement could be made - taken from a portion of the floor debate alluded to in the Court's opinion:

"Mr. DENNIS. . . "I have an amendment here in my hand which could be offered, but if we can make up some legislative history which would do the same thing, I am willing to do it." 120 Cong. Rec. 41795 (1974).

We should not make the equivalency between making legislative history and making an amendment so plausible. It should not be possible, or at least should not be easy, to be sure of obtaining a particular result in this Court without making that result apparent on the face of the bill which both Houses consider and vote upon, which the President approves, and which, if it becomes law, the people must obey. I think we have an obligation to conduct our exegesis in a fashion which fosters that democratic process.

h:

There you go again...everything after "Obvious" demonstrates my point. It's rather rudimentary to determine the intent of a law from the legislative history.

OJ
Excuse my density. Help me. Yes C/span tape is part of legislative history. What is not presented in the documentaion to the court is that "OTHER" Senators would have made or might have made different comments if they had know the jist of Kyl/Graham's remarks, which they couldn't because it was not know to other Senators. Nothing Hamden presented to the court or could have presented would allow for those countervailing arguments.

Why? Because the legislative record was "corrupt" as David said originally.

How was it corrupt? The Kyl bit is a part of a larger history and, as you keep saying, obviously contrary to the rest of the history. No one has any trouble determining the intent here.

So the Court is free to "imagine" what the countervailing arguments would have been to the Kyl/Graham statements. Thank you for clarifying. Not Corrupt.

I think you're confusing corrupttion with incompetence of counsel.

Look, either it changes the result under the plain language of the statute or it doesn't.

If it doesn't, why would you bother with it?

If it does, why should something that's not legislation change the result that would prevail under the legislation alone?

Because legislation doesn't exist in a vaccuum nor is it handed down from on high. Context is all.

Be concrete. Give me an example of when the legislation says one thing but we should ignore it because a couple of legislators on the floor say something else.

The entire Bill of Rights.

No, the lawyers were free to introduce the legislative history. They were incompetent if they didn't. Our government has pretty minimal corruption and none in this instance.

There is no legislative history for the Bill of Rights, and I still need a concrete example of when we should ignore the language of the Constitution in order to give effect to some random statement. Remember that when it comes to the Constitution, the relevent intent is that of Congress plus all of the state legislators.

Oh wait. This is your cuckoo argument that free speech is limited to speech furthering the ends of the Constitution as set forth in the Preamble. I'm sorry, I thought we were having a serious discussion of the proper interpretation of statutes. I don't know what came over me.

No, when it comes to the Constitution the states and Congress can't change the intent, which was esablished at the Constitutional Convention.

Yes, it goes without saying that nothing in the Amendments can be read as contrary to the purposes of the constiutional regime itself.

The decision of the constitutional convention with regard to a bill of rights was to skip it. The Bill of Rights was proposed by congress and adopted by the states, just like all the other amendments. Nonetheless, the controlling intent with respect to the constitution is that of the state legislators.

The other point isn't even worth arguing about.

Yes, the Bill is superfluous and should be ignored.