Copyright (c) 2003 The Trustees of The University of Pennsylvania
University of Pennsylvania Law Review
ARTICLE: THE POSITIVE POLITICAL THEORY OF LEGISLATIVE HISTORY: NEW PERSPECTIVES ON THE 1964 CIVIL RIGHTS ACT AND ITS INTERPRETATION
151 U. Pa. L. Rev. 1417
Daniel B. Rodriguez+ & Barry R. Weingast++
A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. 1 The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes - including textualists, 2 purposivists, 3 and those who eschew reliance on legislators' will altogether 4 - raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, 5 leading some to conclude that it is useless to the enterprise of statutory interpretation.
In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation.
To summarize the basic theory: Legislation is the product of choices made by legislators pursuing strategic aims within the structure of legislative institutions, rules, and norms. 6 The principle of majority rule requires that legislators collect a majority of votes to transform their hopes into law. For most contemporary social legislation, this democratic imperative is hard ...
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