Today I have the pleasure of speaking at Brookings Institution as part of the Washington University’s speaker’s series. Ironically, the speech is on the use of legislative history, a subject much discussed yesterday in the confirmation hearing of Judge Amy Coney Barrett. I will therefore step away from blogging for an hour to appear virtually.
Judge Leventhal famously said that relying on legislative history is like “looking over a crowd and picking out your friends.” Exxon Mobil Corp. v. Allapattah Servs., Inc., 125 S. Ct.. 2611, 2626 (2005) (quoting Patricia Wald, Some Observations on the Use of Legislative History in the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214 (1983)).
Judge Barrett clearly has much of the same view of her mentor Justice Antonin Scalia on legislative history. While not discarding the value of such evidence on legislative intent, she clearly indicated that it is not a source that she would turn to as a matter of course. Justice Scalia wrote:
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.
United States v. Taylor, 487 U.S. 326, 345-46 (1988) (Scalia, J., concurring).
Keeping the law and the Constitution up-to-date in a rapidly-changing America is quite difficult. Jefferson argued that Amendments should be added every decade, so as to to refresh legitimacy through frequent ratification votes in the states.
A great example was raised by the mere fact of Amy Coney Barrett being nominated. If you go back to the 1789 Constitution’s Ratification, the Ratifiers understood the Supreme Court, and indeed all Constitutional offices, to be filled by men. That’s what they thought they were Ratifying. So, an originalist should find a disqualification of any woman being nominated to SCOTUS.
I wish ACB had been challenged to answer this conundrum of originalism.
The only answer I could proffer would be, the Equal Rights Amendment should have been Ratified. It wasn’t, but the nation has been proceeding legally in every way as if it had. But it hadn’t!
So, does that history open the door for States to pass laws eclipsing women’s rights to pursue Public Office?
I can only say that the original Constitution made it too hard to convene a publicly-driven Amendment process on a decade frequency.
If I had to chose one Amendment for the 2020s, it would be to empower a once-per-decade automatic Constitutional Convention, as a way to encourage societal change to be consolidated into our governing framework. This would be culmination of Jefferson’s vision.
Can anyone post a link to this speech of Hon. Prof. Turley please? .. Surprisingly it is not attached in the blog here and is not to be found on the Net too.. Most surprising.
For God’s sake Turley, I hope you took off your red hat before you started to speak, after you speak they know you wear a red hat.
The quote us obtuse.