Legislative History


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Legislative History

The discussions and documents, including committee reports, hearings, and floor debates, surrounding and preceding the enactment of a law.

Legislative history includes earlier, similar bills introduced but not passed by the legislature; legislative and executive reports and studies regarding the legislation; transcripts from legislative committee hearings and reports from the committees; and floor debates on the bill.

The legislative history of a statute is a unique form of secondary legal authority. It is not binding on courts in the way that primary authority is. Federal and state constitutions, statutes, case law (judicial decisions), and agency regulations form the body of primary authority that courts use to resolve disputes. As secondary authority, legislative history is used only to decipher the precise meaning behind an ambiguous statute or statutory provision.

For example, suppose Congress passes a Criminal Law requiring that all persons under age 18 who appear in public after sundown must carry a federal identification card, which must be produced for law enforcement officers on demand. If the statute contains no definition of the phrase "in public," a court faced with a case brought under it may have to consult the legislative history to determine precisely where minors may venture without the identification card.

The value of legislative history in the law is similar to that of academic treatises: both are extrinsic aids. Lawyers may use favorable language from legislative history and academic treatises when they are presenting arguments to a court, and courts may use it when they are attempting to interpret a statute.

In some countries, such as England, courts may not consider secondary sources in making any decision. In these countries the potential for judicial abuse of a secondary source such as legislative history is considered an unacceptable risk to the legislative and judicial processes. The fear is that a judge could use one particularly unrepresentative statement from a lengthy legislative debate to incorrectly interpret a statute.

North Haven Board of Education v. Bell, 456 U.S. 512, 102 S. Ct. 1912, 72 L. Ed. 2d 299 (1982), illustrates why legislative history is of secondary importance. The question in Bell was whether a federal statute (Title IX of the Education Amendments of 1972, 86 Stat. 373, 20 U.S.C.A. § 1681 et seq.) barred gender-based discrimination in employment by educational institutions. In answering the question in the affirmative, the majority opinion relied heavily on the remarks of Senator Birch Bayh, the sponsor of the legislation. The dissenting opinion relied heavily on remarks by the same senator in reaching a different conclusion.

Not all legislative history in the United States has the same value. Generally, committee reports have the most weight with the judiciary. Remarks of legislators during floor debates have the least value. Committee hearings and reports from the president or governor are given varying weight, according to the court's need for the information.

Legislative history is never the only consideration in a case. In all cases courts examine the plain meaning of the words in the statute before looking at any legislative history.

The legislative history of federal statutes can be found in the various publications of special legislative commissions and legislative committee hearings, and in the Congressional Record. The Congressional Record is published by Congress each day that it is in session. It summarizes the proceedings of the previous day in both the Senate and the House of Representatives. Members of Congress also may publish unspoken remarks and all or part of their floor speeches. Collections of federal legislative history are maintained in law libraries and state government libraries. West Group issues a compilation of the statutes passed in each session of Congress and their legislative history. This compilation, called the United States Code Congressional and Administrative News, is available in state government libraries, in law libraries, and on West's online computer service, Westlaw.

The Internet has become a reliable and useful source for locating legislative history for recent bills and laws. The U.S. Government Printing Office's website, known as GPO Access, provides the full text of congressional bills, House and Senate committee reports, committee prints, hearing transcripts, the Congressional Record, and several other documents. Availability of these documents depends on the individual document, but most are available from the mid-1990s onward. Another useful source is Thomas: Legislative Information on the Internet, produced by the Library of Congress. It provides access to recent bills, reports, debates, and other information.Legislative materials on the state level are more difficult to acquire. In most states committee reports and transcripts of floor debates are stored at the state government library at the state capitol for a certain period of time, such as two years. After that period of time, they may be shipped to a state archives office. Some well-stocked law libraries may have history on state legislation. Most states now provide the text of recent legislation through their websites, but most do not provide access to legislative history.

The availability of the history of local laws varies from jurisdiction to jurisdiction. Some large cities preserve committee reports and legislative comments on local laws; most small towns leave no trace of the intent behind their laws.

Methods for storing state and local legislative history vary widely. To find the legislative history of a particular state or local statute, consult the reference librarian at the appropriate state government library or at a law library.

Further readings

Kunz, Christina L., et al. 2000. The Process of Legal Research. 5th ed. Gaithersberg, Md.: Aspen Law & Business.

——. 1992. The Process of Legal Research: Successful Strategies. 3d ed. Boston: Little, Brown.

Cross-references

Canons of Construction; Plain-Meaning Rule.

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Although many courts continue to pay rhetorical fealty to intent and to cite to legislative history, the intellectual energy among dedicated originalist scholars and jurists has moved toward textualist interpretation.
But despite the fact that our respondents understood that judges apply these rules, they rejected them due to other factors, including the need to please stakeholders with redundancy, the impracticality of consistency presumptions given the fragmentation of Congress into committees and the increased use of omnibus legislation, and the simple fact that drafters prefer their own statutory definitions or legislative history to dictionaries.
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