Legislative History as “Statist Tool of Interpretation”

by Ed Whelan

From the Volokh Conspiracy’s Will Baude, I’ve learned of this Yale Law Journal article by Yale law professor Nicholas R. Parrillo that explores the question “how legislative history came to be such a common tool of interpretation.” From the article’s abstract, here is Parrillo’s interesting answer (emphasis added):

The key player in pushing legislative history on the judiciary was the newly expanded New Deal administrative state. By reason of its unprecedented manpower and its intimacy with Congress (which often meant congressmen depended on agency personnel to help draft bills and write legislative history), the administrative state was the first institution in American history capable of systematically researching and briefing legislative discourse and rendering it tractable and legible to judges on a wholesale basis. By embracing legislative history circa 1940, judges were taking up a source of which the bureaucracy was a privileged producer and user—a development integral to judges’ larger acceptance of agency-centered governance. Legislative history was, at least in its origin, a statist tool of interpretation.

I look forward to reading Parrillo’s (very long) article and may have more comments on it after I have read it—including, perhaps, on its connections to some of the broader themes in law professor law professor Philip Hamburger’s important new book Is Administrative Law Unlawful?.

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