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Posner’s Confused Response to Scalia



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Richard Posner’s downward spiral continues.

Earlier this week, Justice Scalia made some news when he charged that Posner’s claim—in his wildly incompetent review of the new treatise co-authored by Scalia and Bryan Garner—that Scalia was “doing legislative history” in his Second Amendment ruling in District of Columbia v. Heller was “simply, to put it bluntly, a lie.” (See transcript, p. 21.) Posner has now posted a response that undertakes to defend himself against the charge.

Posner’s response sets forth two defenses. First, Posner contends that what he (Posner) means by legislative history includes Scalia’s “historical inquiry” into “a variety of English and American sources from which he distilled the existence of a common law right of armed self-defense.” By contrast, he says, Scalia “defines legislative history very narrowly” to exclude that “historical inquiry.”

By conflating legislative history with background context, Posner has concocted an incredibly expansive definition of “legislative history” under which every inquiry into original meaning would necessarily involve use of legislative history. I’ve never encountered such a definition before. Posner himself has previously distinguished the narrower term “legislative history” from the broader background context, or “real history,” of a statute. As he put it in Sundstrand v. Commissioner of Internal Revenue, 17 F.3d 965, 967-968 (7th Cir. 1994) (citations omitted):

The term “legislative history” picks up some peculiarly unreliable “historical” guides to meaning—the statement of a single legislator, on a day when the chamber may have been empty; a statement not made on the floor at all, but inserted in the record of the proceedings later; a passage in a committee report that may have been inserted by a lobbyist or a committee staff member and not scrutinized carefully by other members of the committee; a passage inserted by an opponent of the bill, designed to impart a particular “spin” to it—or by a proponent, designed as an invitation to a sympathetic court to “restore” a provision that had been deleted in a compromise with opponents. The concern that a number of judges have expressed with regard to the use of legislative history, though possibly overstated, dictates caution in its use. But it does not touch the use of “history” in a broader sense to illuminate a statute that may be ambiguous not because any individual sentence or clause in it is ambiguous but because some of its sentences or clauses don’t fit together clearly or don’t mesh with rather obvious realities of the subject matter of the statute.…

Section 1481 has a history, and it is time that we attended to it—a real history, unaffected by any self-serving or tendentious comments in the “legislative history.” [Proceeds to discuss background context.]

Indeed, it’s obvious that Posner wasn’t using his newfound hyper-distorted concept of legislative history in his book review, for if he had been, he wouldn’t have (confusedly) contended that the “legislative history of the Fourteenth Amendment … should be anathema to Scalia” (emphasis added), and he wouldn’t have (confusedly—see point 4 here) faulted Scalia and Garner for citing an opinion that “referred, contrary to a Scalia-Garner Diktat, to the statute’s legislative history.”

To put the point another way: Posner was contending in his review that in Heller Scalia failed to follow his own rule against misuse of legislative history. That contention of hypocrisy would collapse into meaninglessness if Posner meant the term legislative history to include the very materials at the core of an original-meaning inquiry.

Posner also tries to invoke Garner against Scalia, even though Scalia and Garner have co-written a 20-page section (pp. 369-390) against the use of legislative history “to establish what the legislature ‘intended’” (p. 388). Posner thinks it significant that Black’s Law Dictionary, edited by Garner, defines legislative history as “The background and events leading to the enactment of a statute, including hearings, committee reports, and floor debates.” But it’s tendentious to read “background and events” as referring to matters outside the legislative body. The note in the Black’s definition that Posner doesn’t see fit to quote—“Legislative history is sometimes recorded so that it can later be used to aid in interpreting the  statute”—reinforces the point.

Posner’s second ground of defense is that even under Scalia’s “narrow definition” of legislative history, Posner is correct that Scalia was “doing legislative history” (the phrase from his review) in Heller. Here is Posner’s entire supporting argument:

For Justice Scalia does discuss the “drafting history” (legislative history in its narrowest sense) of the Second Amendment. See 554 U.S. 598-599, 603-605.

Let’s look at the pages that Posner cites (which roughly correspond to pages 25-26 and 30-32 of the slip opinion):

To begin with the second cite: The reader will discover that Posner plucks the term “drafting history” from a sentence in which Scalia faults Justice Stevens for “rel[ying] on the drafting history of the Second Amendment.” After stating that “It is dubious to rely on such history,” Scalia continues: “But even assuming that this legislative history is relevant, Justice Stevens flatly misreads the historical record.”

In short, Scalia is not invoking the “drafting history” as evidence of what the drafters intended the Second Amendment to mean. Rather, he is refuting Stevens’s use of it (just as he has frequently argued, as in his concurring opinion in Conroy v. Aniskoff, that the legislative history that his colleagues invoke doesn’t in fact support their use of it).

As for the first pages cited: As I pointed out in my Part 1 post (in point 2), Scalia and Garner spell out quite clearly in their treatise how the use of legislative history “to establish what the legislature ‘intended’”—the use they object to—“is quite different from using it for other purposes,” including “for the purpose of establishing linguistic usage—showing that a particular word or phrase is capable of bearing a particular meaning” (p. 388). This distinction mirrors the distinction in originalism between the original-intent methodology (which Scalia rejects) and the original-meaning methodology (which he embraces). As Scalia puts it in A Matter of Interpretation (p. 38), he

will consult the writings of some men who happened to be delegates to the Constitutional Convention … not because they were Framers and therefore their intent is authoritative and must be the law; but rather because their writings, like those of other intelligent and informed people of the time, display how the text of the Constitution was originally understood…. What I look for in the Constitution is precisely what I look for in a statute: the original meaning of the text, not what the draftsmen intended.

What Scalia is doing in Heller in the passage that Posner cites is offering evidence of original meaning—showing how the prefatory clause of the Second Amendment “fits perfectly” with its operative clause. (Law professor Josh Blackman develops this point more fully.)

In fairness to Posner, I suspect that he and Scalia are simply talking past each other. Posner appears entirely inattentive to Scalia and Garner’s distinction between legitimate and illegitimate uses of legislative history. So when Posner charges that Scalia was hypocritically “doing legislative history” in Heller, Scalia reasonably understands Posner to be falsely contending that Scalia was invoking the drafting history of the Second Amendment in order to establish some sort of intent of the Framers. But it seems far more likely that Posner doesn’t have this specific contention in mind and that his charge of hypocrisy rests (as Josh Blackman also suggests) on his jurisprudential confusion about originalism.



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