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tv   Public Affairs Events  CSPAN  November 23, 2016 7:40am-9:41am EST

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>> it's not possible to only talk about guns. a broader societal thing which counts people out dehumanized them and that means when their life is taken, that is already being accounted for but i think there is a row problem. once you start saying he was an a student, then the suggestion that there is a grade you can get where you won't be worthy of getting killed.
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at the federalist society's annual national lawyers convention a panel of law professors talked about how judges use legislative history to interpret the law. this is an hour and 20 minutes. [inaudible conversations] [inaudible conversations] >> good morning. we are spent running a little bit over so i'm going to get started. my name is saikrishna prakash. i'm a judge from the ninth circuit. please don't hold that against me. it's a great pleasure and honor to be here. justice scalia once famously compared legislative history to entering a crowded cocktail party invoking for -- and
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although it's a little bit early to get started on the cocktail, and very happy to see many old and new friends here gathering to consider the legacy of the celebrated jurist and a brilliant legal mind. first please join me in welcoming our panel. i have professor tom morrow of the charles evans hughes -- she is professor of law at the columbia law school, saikrishna prakash james james monroe distinguished professor of law at the university of virginia professor lawrence sylvan of the georgetown university law center professor michael distinguished university chair and professor at the university of st. thomas. as the title of our panel indicates we are here to discuss the demise of legislative history.
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let me start with a simple question. what difference does it make anyway whether judges interpret statutes based on their actual facts and original public meaning or whether judges take into account the law's legislative history? according to justice scalia it makes an enormous difference. nothing less than the rule of law itself is at stake. for justice scalia the text of the statute is the law. he says we are bound not by the intent of those legislators but why the laws which they enacted. by contrast if judges are free to pursue unexpressed legislative intent, there's an enormous risk that judges will pursue their own objectives and desires. where is justice scalia-based psychologist put it, when you were told to decide not on the basis of what the legislature
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says that on the basis of what it stands for surely your best shot at figuring out what the legislature meant is to ask yourself what a wise and intelligent person should have meant and that of course will bring you to the conclusion that the law means what you think it ought to mean. for that reason justice scalia argued the use of legislative history has facilitated rather than deter decisions that are made on the course policy preferences rather than neutral principles of law. in this justice scalia concluded is directly contrary to our great american ideal, government of law not of man. justice scalia was not discouraged by this view by the fact that congress writes terrible laws. justice scalia explained if you are dealing with an inane
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statute you are duty bound to produce an inane result or as he put it even more simply, garbage in, garbage out. there is no doubt that justice scalia is adherence to this view had a tremendous impact on the supreme court. as you heard from justice alito before justice scalia took his seat at the court in 1986 justices appeared to what has recently been called the holy trinity approach where the courts saw compelling legislative history was more important than the text of the statute itself. justice alito's presence on the court would change this long-standing practice. just a few months after justice scalia was elevated from the d.c. circuit he wrote a concurrence in a case called -- that would ultimately change the framework for statutory interpretation.
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justice scalia agreed with the majority conclusion that the ninth circuit for once had acted right in its interpretation of an immigration statute but he refused to join the majority's opinion because that included the concept that compelling legislative history could overrule the plain statutory language. then he said the language of the law is clear we are not free to replace it with on enacted legislative intent. this pattern that justice scalia started in cardozo fonseca continued the rest of his career and i don't mean with the ninth circuit of course. according to allow review article published in 1990, during the period from 1987 when he first wrote cordozo fonseca until 1989, just two years later justice scalia wrote more opinions for the majority for
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relying on legislative history. the 1999 law review article noted that justice scalia's approach if adopted would represent a significant change in the way the board writes the statutory decisions and probably even the way the court conceptualizes its role in interpreting statute. the subsequent decades show that justice scalia strong point of view change statutory interpretations and the course of court history. as a law review article complained in 2008, in the face of justice scalia's fervent opposition to liberal judges have opted not to rely on resources for certain types of cases. during the scalia affect the article speculated that resulted
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from justice is drafting their opinion strategically in order to get justice scalia to join. i can actually give them anecdotal support for the this speculation. i clerked for justice o'connor and 89 and i certainly remember letting the supreme court librarians with requests for old dictionary so he could look up the words in old statutes to try to get justice scalia to join our bosses opinion. the shift from legislative history to statutory text is one of justice scalia's legacies. just recently just as kagan pronounced i think we are up textual is now in a way that was not remotely true and justice scalia joined the bench. but is that really true? isn't the court told the federal government is a stay? for those of you who don't remember that was the case holding that tax credits were
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available for health insurance for federally established exchanges even though the act itself only allowed tax credit for state established by the state. as justice scalia pointed out in his dissent who would ever have dreamt that exchange established by the state means exchange established by the state or the federal government? there are other signs of so-called proposed reasoning, never turned the legislative intent, is making a comeback. the court recently held that a fish is not a tangible object and a toxic chemical isn't a toxic chemicals when used to poison her former best friend who is now your husband's mistress in bond because in his face. the question arises will justice scalia's textualists legacy endures the chord changes or to
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paraphrase of justice scalia's famous remarks in a different context, must we say like some late-night horror movie that repeatedly shuffles abroad after being repeatedly killed and buried come legislative history stops are supreme court jurisprudence once again. i look forward to discussing these questions and more with our panel. we will start with professor merrill and they will have time for questions at the end possibly. >> thank you very much, judge. it is indeed a privilege and an honor to speak at this convention honoring the memory of the legacy of justice scalia. i am a great admirer of his insert like he has influenced my thinking on a variety of topics. sometimes i agree and sometimes i disagree that always he was tremendously important in my own development of thinking about public law.
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i think justice scalia's great legacy and others may have alluded to this already is he was concerned with questions of legal method. most judges are eclectic or maybe a better word is ecumenical in method. they will use one method among case in a different method another case. the question of what fits or perhaps which produces the correct result. justice scalia is secured about results but he also cared passionately about methods. frequently has concerns about methods would override his conception of what one would imagine he thought the best results in a case might be. we have far to heard about his influence on constitutional influence administrative law but the focus of the panels on the statutory interpretations of that is what i will focus on as well. both justice alito and the judge briefly alluded to the fact that justice scalia did not believe in proposing interpretation i
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will dissent from that. i don't think that's quite right. i think justice scalia said repeatedly that interpreting the words of the text and of course he didn't disagree with the search for subjective intention that interpreting the text he said uis have to take into account the context and what did he mean by context? basically meant you had to take into account the obvious purpose for which the words are being used. he wrote in his tenor election of princeton which i think is the most deeply prepared and thought out in his views about interpretation he said the import of the language depends on the context which includes the occasion for and the purpose of its utterance. so i think you have to regard justice scalia as ultimately not agreeing with the interpretations disagreeing with the use of legislative history and trying to ascertain the
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meanings of the text of the statute. here i think his legacy was profound. others have far to describe how before justice scalia joined the court it was routine to read opinions and rummage through legislative history looking for snippets here and there. my support some kind of conception of what congress intended when it passed the statue. justice scalia and the judges described a kind of relentless criticism of the approach and had an enormous effect on reducing the use of legislative history. i think today his appearance in supreme court is very episodic and it appears an apologetic sort of way. justice scalia i think for one person to have had this kind of transformative effect on jurisprudence is truly astonishing. justice scalia gave three reasons as i see it for discarding legislative histo. i think one of them, i think one
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of them is sound but perhaps subject to qualification i think the third reason is compelling. the unsound reason is that using legislative history is unconstitutional. the argument that has been mentioned briefly is that snippets of legislative history don't go through the article i process a bicameral approval and because they don't it's wrong to elevate the snippets of legislative history to the status of law. they're not law, they are just chatter. that is all true but typically when used correctly legislative history was not used to override another text. if agreed that the text is clear and legislative history is being used to determine the meaning is something different from on the text says that's impermissible and violates the constitution.
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specifically legislative history shows genuine empathy nuisance statutes, situation worse and there were the statute so it's an interpretive aid to something that is being used to override congress is lettuce -- legislative actions that if you think about the courts use all sorts of interpretive aids to interpret statutes none of which have gone through the bicameral process. justice scalia of course was very fond of dictionaries. dictionaries have not been approved by congress and about the enzyme by the present neither happy canons of interpretation of nor the rules of grammar and so on and so forth without these things are freely used by judges including justice scalia to interpret ambiguous statutes. none of them have been approved by congress or the person and no one that they are unconstitutional so use properly as a wave and turk interpreting ambiguous statute and think legislative history using legislative history violates the constitution.
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the second argument justice scalia made was legislative history subject to manipulation but i think this was a sound argument. it's probably the case that madison's notes or the escalation of the debates in the constitution are not prone to manipulation because those deliberations were generated a time when no one thought the courts would use legislative history or constitutional history in interpreting tax. the starting in the 1940s, resend article that documents this in great detail new deal lawyers engaged in the process of deliberately building in commentary in the legislative history of the statues they were drafting for the congress and the legislative history to tell the court with what the statues meant. this was a form of blatant manipulation which is present at the origins of the use of statutory history of statutory interpretation. justice scalia rightly perceived
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that this was a serious concern. unlike dictionaries and unlike rules of grammar and so forth which has no say over obviously members of congress are in control of the legislative history so taking that into account there's a great temptation to manipulate by planting little dialogs or colloquies which are designed to influence the course of the way in which they interpret statutes. i think this is a valid point. a little bit perhaps overstated are subject to rebuttal. one question is what is the ratio of sincere attempts by legislators to persuade their colleagues of a particular measure versus a blatant attempt to manipulate the courts. if the ratio of sincerity to manipulation is very high throwing out legislative history would perhaps be a dramatic role that might be questionable at we don't know at the ratio is.
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no one is able to do a study of this so it's a matter of speculation as to how much decedent is going on as opposed to how much easier legislative process. another objection is judges are not idiots and if the adversarial process works that is supposed to work is one side manipulates the court one quart quart -- [inaudible] and so there is a built in way in which this manipulation can perhaps be -- i don't think that is completely reassuring. i think of the 1970s situation where one side was trying to manipulate in the other side was trying to counter manipulate so maybe manipulation concern does have some serious consequences and again it's an empirical question as to whether or not it's worthwhile throughout
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legislative history based on the concerns that some manipulation is going on. the last thing justice scalia said and he didn't say this as often as he talked about the constitutional problem or about the manipulation problem but i think this is a compelling argument for doing away with legislative history. to put it in one were justice scalia thought it was an efficient. as he put it in his tenor of the most immediate and tangible change in legislative history, judges lawyers and clients could save an enormous amount of time and expense. again this is an empirical proposition. it's impossible impossible to prevent another nonie studies that have been able to measure how much time and money spent versus what the payoff is that i strongly suspect justice scalia was absolutely right about this. he supported his proposition in his lecture by pointing to his
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time as the head of the office of legal counsel during the ford administration and that then legislative history was used in the case so the office of legal counts he -- counsel had devoted time to legislative history. the explanation was persuasive that if the statute is ambiguous it's unlikely the legislature or the staff spotted the amp you -- ambiguity. ..
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>> been would be a conference report and so least you knew where to look in order to find relative history that might shed light on particular turns. this process is largely broken down. what we now see our mega statutes that are patched together, none of which replicate each other and which make it extremely hard to do any kind of coherent legislative history. let me give you one example. the dodd-frank finance reform act of 2010, which i had the misfortune of doing legislative history about recently in writing an article. according to a compilation of documents put together by the labor he and the federal reserve
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board there is no conference, there's a conference report but it says nothing about most of the provisionprovision s that were adopted by the conference. there's a conference. there's the house report and the senate report. the act was stitched together from 48 separate bills. the final version of which emerged after 19 different steps in the legislative process. the senate held a 39 relevant here is, the house 55. anyone who is condemned to try and figure out the legislative history particularly provisions of the dodd-frank backed by plowing through the material is to be pitied. i think, you say may be orderly process would return to congress. maybe this is a transitory situation. i somehow doubt it. it's not just, part of it is gridlock and the fact congress is narrowly divided and, therefore, things like the senate filibuster make it very difficult to get laws passed the orderly process but part of it is the fact of the growth of the
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staff of congress, the devotion of time to fundraising, the role of social media and other interest groups and other factors which i think has meant that the old-fashioned orderly process congress fold and unlikely to be resurrected anytime soon. i think changes in the way congress operates that happen since the time of justice scalia was condemned to do the legislative history half maybe even more compelling that this is simply a gigantic waste of time. i think we should applaud justice scalia for kind of put legislative history out of its misery and hopefully the little mice that are coming back will not be allowed to propagate and multiply. thank you. [applause] >> we heard legislative history uses inefficient we lecture from
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professor prakash. >> i want to thank the federal society providing me here today. i'm quite proud to be part of the panel. i deeply admire justice scalia and was greatly saddened by his passing. i encourage you to look at a recent essay posted on the harvard law review forum site. it's a defense in celebration of the justice's jurisprudence. i should add that justice was kind and gracious to me that today i'm going to follow his admonition to say something that the audience disagrees with their i'm going to defend use of legislative history. i think if the justice were here he would skewer me in various ways and i squirm embrace ways but i think the case ought to be made for use of legislative history. let me begin with some data derived from the work of others, particularly david law. the high mark use of lesson of history occurred in 1970 well
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before justice scalia got on the court. it's been declining pretty much ever since so it started to decline even before justice league on board and, of course, this continued while he was on the court. it is not declined 20. some justices quite sympathetic to justice scalia's approach have use of legislative history including thomas, justice scalia, clinton chief justice roberts. the latter two justices he for the senate defended the use of legislative history, notwithstanding the withering criticism that justice scalia made against the use. if we define demise as the undertakings o legislative history we are just not there yet at least not at the supreme court. it's more accurate to say there's a fair declined images and that's been salutary. judges were using or justices were using legislative history
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too often perhaps to confirm their pre-existing biases or conclusions and i think this applies judge leventhal's observation of use of legislative history is quote the equivalent of entering a crowded cocktail party and looking over the heads of the guests for one friend. justices and judges were looking at history to confirm the conclusions that already reached for other reasons. oddly enough i think justice scalia's criticisms made use of history more defensible because he demanded and will make a more compelling case for their views. like some others i think legislative history can provide context of the sort that professor merrill mentioned in his remarks. i fully understand there will be some good statements made just so they can influence interpretation later on. if we believe that a curse that's a good reason for not consulting the lives of history that results or is generated in that environment but it's not
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necessary a reason not to consult legislative history generated and prior whether there was no systematic attempt to put the records so speak. i think we can see this in other areas. let's move beyond statutes and consider treaties. with respect to the constitution, justice scalia engaged in formal legislative history. decide the federalist papers quite frequently, famous case prince versus united states involving whether or not the federal government could commandeer state law enforcement officers to enforce federal law. he cites the papers to make his point congress cannot do that and to reject justice souter's argument that come enduring of executive branch officials were permissible. the federalist papers were never voted on by the philadelphia convention. they would never vote on by the state conventions. they were written after votes in several state conventions.
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the same argument that's been made, the constitutional argument has been made against legislative history to be made against the federalist papers and elliot's debates and all the pamphlets and other writings that were written at the time of the constitutions creation and ratification. i think the same can be made with respect to treaties. in medellin versus texas, involving whether president bush can order the state courts to reopen certain criminal cases, chief justice roberts declared the court traditionally looked at text, background, negotiating and drafting history, namely the practices of the nation-states. justice scalia holy join this opinion. in fact, this made sense because chief justice roberts was quoting and citing that justice
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scalia opinion on the use of history in the context of treaty making. in that case, scalia says we are traditionally considered h2 to interpretation, negotiating and drafting history, and anything is a french word of the post-ratification understanding of the contracting party. that's just justice scalia did not have a categorical aversion to use of legislative history. certainly not with respect to constitutions, not with respect to treaties. i view legislative history as a now traditional tool interpretation no more problematic than the theoretical matter than use of dictionaries or the use of non-obvious canons of construction of the courts cite to you from time to time. as thomas just pointed out none of those dictionaries and none
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of those canons of construction have gone through bicameral presentation but the court she is nonetheless. we assume congress understands it, that the courts will use them. i agree also with nick, his argument congress could tomorrow require the court to use to submit conference reports to us understand legislative history. the real question is just what's the default, they can't use them or that you can? i think justice scalia did us a service by ensuring that we were not as well as on legislative history as we were in the past. citizens of overton park was a crazy thing to start with the legislative history i don't think it makes sense to say you should not use it at all. i want to end by saying sometimes it is okay to look over a room and find your friend. thank you. [applause]
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>> we've heard from professor prakash that it is okay to use legislative history because all of our friends are using it. now we will hear from -- >> thank you so much. it's a great pleasure to be your and honored to be your on this occasion. so my remarks will follow directly from ideas expressed by tom merrill and professor prakash. i want to investigate the relationship between justice scalia's views about constitutional interpretation and his views about statutory interpretation. professor barnett was in the room and i together run and originalism boot camp each summer. and justice scalia was gracious
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enough to meet with our students at every session of abood camp, so long as he was alive. and we asked him the question, how is it that you came in the famous policy speech where he said we should move away from original intent and to original public meaning. why did you say that? and he said i had a serious statutory interpretation, and so i was aware of the problems with trying to divide content. so it just seemed obvious to justice scalia that our approach to constitutional interpretation should mesh with our approach to statutory interpretation. in preparation for this event, i
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slog through the 101 opinions that appear on westlaw research for the phrase legislative history and the author judge antonin scalia. so one or two things become apparent. justice scalia almost never relied on legislative history in a decisive way in an opinion that he wrote, although we did use legislative history in several opinions. and a second thing that i think is very important. over and over and over again, justice scalia said that the use of legislative history is inappropriate in this case because there is no ambiguity to resolve.
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that's very important. that brings us to an interesting question, which is what do we mean by ambiguity? i think there is a hidden ambiguity in the word ambiguity that reflects an ambiguity in the way in which we can use legislative history. i'm going to come back to that question, but before i do i'll want to back up. there are i think three rival approaches to statutory interpretation. one of these we sometimes call proposal is him, but that label is somewhat misleading. this approach is associated with
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professors harte and wexler and the legal process school of the 1950s and it refers to objective purposes, or we can be a less charitable, judge manufactured purposes, right? and when judges manufactured purposes they try to give them a pedigree and they might use legislative history for that purpose. that is not a legitimate use of legislative history according to justice scalia because that is just legislation from the bench. intentionalism, sometimes people talk about intent of purpose as if there one thing but intentionalism is the view that we are searching for the will of congress for what it was congress wanted the statute to do in operation.
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and again justice scalia would say that legislative history is inappropriate if used for those purposes. why? because the will of congress was not enacted as the statute. congress enacted, went through the formalities of bicameral present meant only the text of the statute, not the mental states of the congressmen. the third approach of course is textualism. plain meaning factionalism. justice scalia's preferred theory, does intent have a role to play in a textualists approach to statutory interpretation? i think that it does and it can, but that role is very, very limited.
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sometimes words you statutes that are ambiguous in the sense that if the word that can have more than one meaning. famous example, the bank of a river, or the bank that serves as a financial institutions. it's a rare that you can't resolve ambiguity from the text of the statute itself, because usually the text itself provide sufficient context to provide ambiguity. but if it does not, then there is nothing inconsistent with textualism in looking to other evidence of context in order to resolve the ambiguity. that use of legislative history, although very rare, is fully consistent with justice scalia's view of textualists statutory
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interpretation. one last point and it goes to professor merrill's discussion of the argument that some use of legislative history is unconstitutional. unlike a resume all i think that this argument is correct and that it provides the primary basis for the exclusion of a certain way of using legislative history. so in order to get at this we need to distinguish between the activity of discovering the meaning of the constitutional text, interpretation and the activity of putting the constitutional text into legal effect, construction. a very old distinction goes back to 1839. it's chief proponent in the
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20th century was used by wigmore, and others in the first half of the 20th century. legislative history can play a role in interpretation is that role is limited to determining the meaning of the text. but when legislative history is used as a tool for adopting constructions that alter or override the meaning of the text, then is illegitimate. then it is judicial legislation. then it is privileging something that was not enacted as law over the which was enacted as law. and it is perfectly reasonable to do that as unconstitutional. thank you. [applause] >> okay. so we heard that it's okay to use legislative history to
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resolve real ambiguities, though i must say that judges are famous for plucking ambiguity out of the jar of clarity. [laughter] now we'll hear from professor paulsen. >> thank you. i'm greatly honored to be part of this conference in honor of justice scalia. i've given my own tribute to him in an online article, public discourse website called the supreme greatness of justice antonin scalia. i really think it's one of the five greatest most important supreme court justices in history of the nation, including the most influential important justice of the past 50 years. i unlike some others didn't know justice scalia personally. i shared to meals with him 30 years apart and in group settings. the first was when he was a judge or one of a panel of
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judges, when i was a low student and i have a great good fortune of sitting next to justice scalia at dinner and bathing in his wit, grace, charm and intellect. the next meal i shared with you was just last fall about a year ago when he came to minneapolis and spoke at my law school university at st. thomas and regaled us with stories. in between those 32 years, i knew scalia the way most of us come to know him and that's through his writings. i became something of a devotee or disciple of the great justice antonin scalia. so i'm greatly honored to be here. what i'm going to do in my 10 minutes is try to back up and give you two broader propositions that i think are consistent with justice scalia's. the title after my remarks is the interpretive force of constitutional and statutory legislative history.
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what is the legitimate force of legislative history in both constitutional and statutory interpretations. so in my 10 minutes i want to make two quick points. first, that the tasks of constitutional interpretation and statutory interpretation are almost exactly the same, or very, very closely analogous. as a corollary that the rightful role of resort to legislative history is osha the almost exactly parallel in constitutional and statutory interpretation. there's some refinements, some differences, but basically it is the same enterprise and scalia thought it was the same enterprise. the second point i will make is that there is a simple and logical reason why certain types of constitutional legislative history, why early evidence of the original meaning, tends to be more reliable and useful and statutory legislative history
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today, a why it is therefore more appropriate to resort to constitutional legislave hiory than modern statutory legislative history. is isosioinisst what justice scalia said, is why you can rely on your well-worn much marked up copy of the federalist papers in a way you cannot rely on committee reports put into built in the 1970s. my first proposition are essentially the same time requires me to back up a little bit and give you a broad theory of everything you need to know about textual interpretation. i think any theory of constitutional interpretation and statutory interpretation ultimately addrees for big questions. you don't have your pans out taking notes? [laughter] the first one is just what is the meaning of the text?
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that's a project of ascertaining what in theory should be the objective original textual meaning of words. the first question is what does the text actually say, what is it meant them how to interpret it? the second question is whether you should follow the text which in some ways is a pre-political decision as to whether or not you'll treat a legal text as the authoritative. that's the equation of what you do with the meaning of the text. the third big question is what do you do when meaning sort of speak runs out at how do you resolve questions of ambiguity or uncertainty? what are your default rules with the text doesn't into something. larry is the best in terms of exculpating that prevented. the fourth the question in any theory of interpretation is who interpret the clause. who interprets the provision.
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that involves questions of judicial authority, what is the scope of judicial authority quick to the other branches have an independent power of independent constitutional interpretation? in statutory interpretation to get all of these are close. the question of use of constitutional legislative history and legislative legislative history is basically a question of what is its rightful role in interpreting or aiding in the interpretation of the text itself, the meaning of the text itself. my proposition which i think is consistent with several people upsehave said and consistent wih justice scalia's comment is that in constitutional interpretation if you are a good originalist textualist, you do not use legislative history including the federalist papers in order to displace or modified what would otherwise be the meaning of the text.
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but instead you look sometimes to legislative history for usefulness in displaying or clarifying the meaning of the words of the text. in other words, you are not looking for a subjective intentions or expectations when you read madison or hamilton or any of the other founding documents. you instead are looking to see how they were using words, the meaning of the words. in other words, like the dictionary the federalist papers is sort of a concordance. it operates answers addiction a function as splitting the meanings of words and concepts in context of a in historical context and in linguistic context at the time. so legislative history in constitutional interpretation is potentially probative, second best evidence of objective textual meaning.
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you look to the history, to the historical documents to provide you with help, with the dictionary help in understanding what is theoretically the objective meaning of the words. and scalia was willing to do this. he would do this both any constitutional context and in a legislative legislative history context. in preparation for this talk i went through some of scalia's love review articles and one of his more recent ones was one that was sort of a co-authored colloquy with a former clerk and a friend of mine, john manning is now a professor at harvard law school. it appears in the george washington law review, but scalia said this. you forget that i don't care what the legislators intended. i care what the very meaning of this wording is. but then he goes on to say, and by the way, i don't object to all uses of legislative history. if you want to use it to show that he would could bear a particular meaning, if you want
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to bring forward to show their work is sometimes used in a certain sense, that's okay. i don't mind using legislative history just to show that word could mean a certain thing. we are trying to ascertain how a reasonable person uses language and the way legislators use language is some evidence of that oppress not as persuasive evidence of the dictionary. that is using legislative history as mildly informative rather than authoritative. you use it for the meaning of words, not to spend interpretation. the core problem with the use of legislative history is reliability. that's the core problem is reliability. that's a problem to a certain extent with both constitutional legislative history and legislative legislative history, but they are problems of varying degrees because of the
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circumstances. a huge problem with the modern use of legislative history and statutory interpretation is that it is massively unreliable. it is all gaming the system. scalia was adamant about this. from that same interview he says, my objection to the odd that the legislative history is not just unlikely to reflect a genuine purpose of congress. it is increasingly likely to portray a phony purpose. the more use legislative history, the phony or it will become. the more use legislative history the more phony able to come. downtown washington law firms, make it their business to great legislative history that is a regular part of the practice. they sent up statements that can bbe read on the floor or statements be inserted into committee reports said the more we use it, the less genuine it is. it's not that we just because it's there, it's there because we use it.
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i am going to suggest building on scalia's proposition, what i will call sort of a modestly pulse and law or but actually scalia's law. and that is the more you know that legislative history is any constitutional sense of statutory cents my count as evidence of actual meaning. the more the course have overtime showed a willingness to look to such evidence, and the more sophisticated a gamer you are, the greater the incentives will be to make a manufacture legislative history and the less reliable that legislative history will be. so here's paulsen's law. the more a legal interpretive system tends to rely on legislative history to determine textual meaning, the less reliable such evidence is likely actually to become because players learn again to manipulate the evidence. so poorly, alaska where at the
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liberators or debaters or drafters of legal language are, that they are by their discussions furnishing potentially probative evidence of original meaning, textual meaning, the less self-conscious they are that they are making legislative history that will affect the interpretation. action with the more reliable such evidence tends to be. that is in the main but i think and is set in an article some years ago that the secret drafting history of the records of the constitutional convention, which were not available to the ratifiers, they were confidential and not meant to be published and madison's notes were not published until later, it is for that very reason a fairly reliable source of evidence for what the the meg actually was. there's some problems with the documentary evidence.
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to the extent he is faithfully recording the debates, the debaters are not intentionally spinning because they are not thinking that they're making legislative history. for precisely that reason to the extent the debates reveal something about what they thought the concepts and meanings of terms actually were, it is for that reason more reliable legislative history and statutory legislative history ever can be today. [applause] >> now we don't legislative history can be mildly informative but only if the legislators don't know anyone is listening. [laughter] weill have some time for some questions.
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while your gathering up your thoughts i will take the moderators privilege to start a round of questions that particularly interesting to me. justice scalia was very concerned about judges using legislative history and other tools, context, purpose and the like, intent of the legislature to enact their own policy preferences. i hear from the panelists that legislative history can be okay if it doesn't go too far, if it is used prerly, but how do you stop judges from doing that? we have after king v. burwell my court's argument saying that the context, if you look at the whole statute, makes this language ambiguous. therefore you can use legislative history to change the meaning of left to right or federal to state or whatever you want. let me start with professor
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merrill. given that your view is that as long as the legislive history is sincere and not being manipulated, judges can rely on it, where is the stopping place for judges, some rule that would actually be enforceable? >> thanks for that question. my position was not that it's okay to use legislative history because judges can figure out when it is phony or not. my point was that the phony manipulation point may be overstated because it's possible judges might be able to differentiate between phony and non-phony and legislative history. my bottom line is we should not use legislative history at all, certainly in statutory interpretation simply because it greatly increases the cost of a pallet and 12 court litigation for games that are probably not commensurate with those costs. i would consequential throw it
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all out. i'm simply saying the manipulation concern which a number of analysts have focused on is an empirical question and arguable question, and another reason to throw out legislative history. i completely agree with you that once we let in the door as we did during the '70s, then judges will run with it. it will give judges more putty to play with in trying to reach results that they find congenial based upon their own preferenc preferences. >> i think a lot of people criticize originalists and say judges can reach results they want. there is no theory of interpretation that would prevent judges, will be judged on what they want.
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judge ikuta, you mentioned the case where it was suggested states where the object and not the federal government, and the court ruled otherwise. i think they could've done it whether or not they referenced legislative history. i don't really know if legislative history -- so i don't really know if legislative history remakes that much easier for a judge who really wants to get a particular result to reach that result. i guess i questioned the predicate. >> let me ask how you think a judge would have said that state means, state and federal, without saying here's the context, here's what congress intended. >> and we have agreed statute. you put me in a difficult
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position of having to defend a decision that i don't agree with, but i just think, with all due respect to you, judge ikuta, judges at the federal level have life tenure and they can pretty much do whatever they want while they're on the bench. that's why bruce said there independent of heaven and earth. we shouldn't be surprised they sometimes flex their muscles and make decisions that we think misread the statute, trees and constitutions of the tourney. whether not they're looking at legislative history. it's not as if we manage the use of legislative history tomorrow there wouldn't be manipulation and so the rather odd claims about what the text of the constitution statutes means. i don't want to have to defend that decision to make my point. >> most of us judges like to think there's a fig leaf of reasoning and not just rob
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howard, but not all of them so i will grant that. professor solum? >> i think that it is surely the case that a judge who's determined to legislate from the bench can find a way to put a fig leaf on the exercise of legislative will. in fact, in king v. burwell there was a whole argument about how the plain meaning of the statute supported the interpretation that the federal government was to say. that reasoning could have been employed by a judge with a straight face. this is why it is so important to consider character in the selection of judges. in order for originalism and
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plain meaning textualism to work, the judges who applied those theories have to actually have the virtue of awfulness. that is, they must care about the law. they must care that their decision reflects what the statute says what the constitution originally meant, and not what they would like to insert into the meaning of the statute. when we think about selecting judges, we are not just thinking about competence and we are not just thinking about what theories the judge abounds. even the most alive of living constitutionalists can say at ct
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her confirmation hearing we are all originalists now. [laughter] right? the discernment of character really means you need to pay attention to the way that people act and not just what they say. >> just briefly. those of you who work on statutory drafting, and if you ever were to engage in constitutional drafting, realize how difficult it is to write a truly judge proof text, right? [laughter] the judge needs to running a sound interpretive program, a sound interpretive methodology. it is true that the more things you let come into your interpretive model, the greater the opportunities for manipulation. but that would apply to a number of other things, a doctor is either criticized including
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stare decisis. sometimes you're not just interpreting the statute. you are interpreting interpretations of the statues and distinctions and to interpreting manipulation of the distinctions of interpretations of the statute. producing give essentially unbridled discussion. i think the important thing is that whatever the tools are, and that is the theme of justice scalia's 30 years on the court, rules, principles, avoiding judicial discretion, except to the extent that judicial discretion is actually called for in the context of the authoritative written text. >> thank you. i will throw the questions open to the ideas. does anyone have questions? down here. and yes. >> i wanted to take the challenge to us that essentially
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to have a relatively bright line exclusion of legislative history might essentially require that we break the tablets of the federalist papers in the same motion or with the same rule. and i'm wondering if there might not be a scale of burkean reliance interests when one looks at the importation of that history and the public debate, although i understand several states did vote for some of that was published. but there might not be those interests that would defend the use of properly or not venerated text have often been used versus the idea of present day assailed from the floor of the senate. >> so breaking the tablets of the federalist papers, that goes against the paulson and symbols.
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do you want to start? >> i'm not sure i have the premise of the question correct. you played hundred and -- to your casual you we used the federalist papers, madison's notes, and committee reports on the house or senate bill as evidence of the meaning of the words. my soul proposition is that the federalist papers in general
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tend to be more reliable evidence of the original constitution meaning than committee reports due of actual statutory meaning. it kind of goes back to tom merrill's point, that there is a question of, the manipulative ability of the evidence and how probative it actually is in a certain context, and whether there are differences in ability of judges to use different sources and discern when some sort of history is sort of manipulative and when it isn't. >> i guess i will say about the tablets. i love the federalist papers and i liked them all the time. i interpret other people cite them. i think it's a mistake to think that those papers were written just to expand the meaning of the constitution. they were written to ratify the constitution. they were the equivalent in some
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sense of floor debates. these guys are not just trying to dispatch our say this is what the constitution means. they are trying to ratify the constitution. it is a piece of propaganda. it may be better than all the things written at the time but they are so pieces of political propaganda. they are great pieces of propaganda and i think i agree with mike that there is a lot there that is true but i think there's also shading and there. i think hambleton systematically discounted the executive power, systematically discounts the strength of the federal judiciary. other people call him on it and you try to respond to them but it's not always clear that he's right that it's not clear that mike paulson would approve every single claimed about the constitution that is not in the federalist papers. i doubt it. >> next question. >> my question is by road for professor paulsen.
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picking up on the distinction between constitutional legislative history and the legislative legislative history, how much does the obvious question distinguishing between the sources with with legislative history the audience typically is the legislate itself, the whole body or some subset, where as with many constitutional legislative history sources especially the federalist papers and the anti-federalist writings to which they responded, the audience was the american public at large. so if the inquiry is public meaning, how much does that distinction play a role in justifying the use of constitutional legislative history more quickly than the use of legislative legislative history speaks so how does the audience affect the paulson principal? >> i think the audience of much of modern statutory legislative history is not actually persuading other members of
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congress but is actually spin doctoring. the purpose for me committee reports is to affect the interpretation of the statute once it emerges. and to get a result out of course but the courts are the two august. a result you couldn't have gotten through the text of the statute because you didn't get in the text of the statute. at the time they're debating the constitution in philadelphia, the time they are writing the federalist papers, nobody very, i mean they know these documents will eventually become public and the federalist papers were advocacy pieces. but they are not trying overtly to spend judicial interpretati interpretation. and in terms of what we mean when they talk original public meaning, i don't think a document has to have been public at the time in order to be
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possibly probative evidence of public meaning in the sense that it's not a private idiosyncratic subjective intention, but this was the public understanding of the meaning of the words. the very fact that the convention records were not meant to be looked at, right? they wanted people to look at the text. actually supports the idea that it's decent evidence of public original meaning, because the audience is really the effective communication to what they're trying to accomplish. [inaudible]
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[inaudible] >> let me briefly repeat the question. is the fact that the document was public and part of the debate, does it increase its probative weight because reliance? mine is not of reliance-based theory. it's not, this is what was said and, therefore, we're taking it as a many because some of them. that's sort of unintentional us to approach. i think scalia would've resisted it. mine is an original meaning. both sources are potentially allows her to of the meaning of the word would've had in social context to reasonably informed speakers and readers of the english language at the time they're debating it. you can't really rely on the
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federalist in saying that people relied on that in deciding the meaning of the cause edition. but it's not clear it changed the results in terms of it was not read in most of the states, it was addressed to the people of new york and by the time new york got around to ratify it was a late hit, and ratified largely for political reasons. you can't really tell why someone relied on a particular source. >> other comments? >> i think audience is really important but just in a slightly different way. the constitution is written for the public. it begins with the three words we the people, right? so the relevant context a meaning is the meaning of the constitutional text to the public at large. some statutes work in exactly
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that way. some statutes are written for the whole public but other statutes have a much more specialized audience. some statutes are primarily written for the agency that will be engaging in the activities on the rise by the statute. so then the relevant context of legislative communication is not what with the public no about these words. it's what would the intended audience, the agency, the lawyers involved in this particular subdomain make of these words? that's really important. the public documents surrounding the ratification of the constitution are very good and very direct evidence of public meaning in the way that the secret drafting history is still
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evidence, but it's evidence of a less direct source. but in the statutory context i think you have to analyze who is the audience of the statute. >> next question. >> i'm from judicial watch. going to professor prakash's point, i understand that a lawless judge can wrestle his or her way around any theory of interpretation, but isn't it the case that it's harder to get around a textual analysis in a plausible way? you can always find the purpose, and you can find in the context and in the newspaper come in the legislative history. but the words are a little bit less yielding. i know this will be controversial but isn't it the case that judges who want the statute to do more than and to
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be -- and those who want them to do was tend to be textualist? doesn't that suggest it is harder to get around the words? >> i think that's a question for me. i think it's ultimately an empirical question, whether or not willful judges need the benefit of legislative history to do what they want to do or do without it. your comment may be think of the eighth amendment in reference to the due process of life, liberty. you can have capital punishment, even the constitution contemplates it. the argument that that's not right and the argument that's not right is based on fact i think in part that what is cruel and unusual punishment, isn't it obvious from the eighth amendment, and the fact that the due process clause permits the taking of property doesn't into
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the equation of what is consistent with the eighth amendment. i've always of justice scalia's argument convincing, but i take it that others don't on a textual basis. may have modified what was cruel and unusual punishment. so i take your point that this just question about whether the people can be incentive enough in the absence of legislative history. i believe in ingenuity of mankind and i really doubt that's going to stop them. >> other comments? >> i agree with the premise of the question. because it seems to me in order to do whatever you want to do based on simply the text requires a tremendous amount of intellectual dexterity. so take king v. burwell, the affordable care act opinion were chief justice roberts writes this very lengthy opinion saying that to give a literal
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interpretation of this one clause in the affordable track would violate what he called the plan at the statute. he goes through page after page of what he thinks the point of the statute was which means with the purpose of the statute was. it's an impressive effort. you come away reading this is a really smart guy, his opinion. i think legislative history permits a much wider range of judges with lesser skills to pick and choose snippets from the legislative history and that bit and conjure up some kind of outcome that may be more congenial. i think there is something to the point that using legislative history increases the amount of data that judges have and, therefore, gives a more leeway particularly if they're not capable of doing some kind of scalia like a roberts like whole act kind of interpretation which is extremely intellectually clever to achieve the results
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you want to achieve. one reason to do away with legislative history is at the margins in cases where we don't have a lot of other entrepreneurs betrayal. >> we have time for one question but we have two people in line. we will do speed questions. so could you please ask a quick question and will have a quick answer. >> ironfisted attorney for coral gables, florida. my question was about executive interpretations. executive officers the attorney general. because of the nature of the role, it's not judicial and it's more tied to the democratic process, do you believe when executive officials interpret the law and apply it to the have more leeway to look good legislative history, or should they follow the same basic principles that a judge would? >> i have an answer to the question which is, when they are engaged in interpretation of the role is exactly the same.
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but we frequently see executive officials and congress engaging in what professor barnett calls double deference. that is, they say, well, this is my interpretation of the statute, and if i'm wrong the courts will correct me. and then the courts say, well, we defer to what's going on in congress or the executive branch, and that's really a problem. >> last question. >> to the extent that legislative history can be used to convince the original meaning of the text, what privilege is legislative history over any other sort of debate at the time? like why are the federalist papers more superior evidence of the meaning of the text at the time?
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any other sort of intellectual debate on the meaning of the text. if they don't have a privileged that is over any other contemporaneous, contemporary intellectual learned debate on the meaning of the text, wouldn't that open up the universe of evidence that could be used to interpret it so wide so that essentially every blog post meaning of state in king v. burwell would have the same stature as the legislative debates at the time? >> i think that's directed to me. if i understand correct, the answer is it is not privileged over other learned public discussion contemporaneous with the time. i referenced this article, my co-author and i wrote this article called the interpretive force of the constitutions secret drafting history.
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it's in the "georgetown law journal." one of the examples we raised is a hypothetical letter from john clergyman to joe farmer commissioner in which is a learned discussion of the contemporaneous understanding of the meaning of the executive power. in principle when we are talking a theory of trying to understand the meanings of the words, all of these sources would be potentially usable evidence. what makes the federalist papers especially good is that they are especially good. [laughter] it is a learned, topical concordance of the discussion, very systematic come in the main reliable and was part of the public debates. so i think in principle if you have an original meaning jurisprudence, you potentially do have the problem of opening
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the world up to more sources of evidence of what could count as evidence of original meaning. in that sense it is less constraining. but if you limit the uses to which such evidence can be put, it is i think more constraining. >> this is a great way to end our panel. could you please join me in thanking our panel? [applause] ..
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>>. [inaudible conversation] >>. [inaudible conversation] >>. >>. [inaudible conversation] all
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those who are coming in please take your seats. we're going to get started. i'm john baker, i'm filling in for john eastman. john is on another panel in another room this time so at this point, all i'm doing is welcoming you here on behalf of the separation of powers in federalism group of lawyers within the federalist society and if any of you after hearing this are interested in joining our section, please contact either professor john eastman or dean reuter. with that, i will ask the doors be closed so we can start the program. it's my great pleasure to introduce josh william pryor of the11th circuit .
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[applause] >> good afternoon. this panel will discuss justice scalia on federalism and the separation of powers. scalia's views on this subject were well-known. in 2008, the author of forward, in a symposium on the separation of powers and the safeguards of federalism in the notre dame law review put forward a report entitled the importance of structure inconstitutional interpretation . that left no doubt what justice scalia's views on the subject was. i'd like to read a couple paragraphs of what justice
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scalia said in that forward. in the days when i taught constitutional law, the university of chicago law school has two constitutional courses. one was entitled individual rights and liberty and focused primarily on the guarantees of the bill of rights. the other, i forgetthe title . it focused on the structural provisions of the constitution. presently the separation of powers and federalism. that was of course the high point and i used to refer to it as real constitutional law. distinctive functional constitution after all is to constitute a political organ, governor and structure of the state. many of the personal protections at stake taught in constitutional law courses here focused on unlawful searches and seizures, used
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to be taught in europe as part of administrative law. they were to be sure a part of our constitution, though most of them as an appendage to the original document. and that was no doubt desired but it is a mistake to think the bill of rights is the defining or even the most important feature of american democracy. virtually all of the countries of the world today have bills of rights. you would not feel your freedom secure in most of them. consider for example the following sterling provisions of a modern bill of rights. every citizen has the right to proposal to state bodies and public organizations for improving their activity and to criticize shortcomings in their work. persecution for criticism is prohibited for persons guilty
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of such persecution should shall be called into account. citizens were guaranteed freedom of speech of the press and assembly, even street processions and demonstrations. exercise of these political freedoms is insured by putting public buildings and streets and squares that the proposal ofthe people and their organization , a broad dissemination of information and by the opportunity to use the press. and finally, freedom of conscience, the right to profess or not to profess any religion, conduct relation worship or atheistic propaganda. any hostility or hatred on religious grounds is prohibited . judge scalia wrote, wonderful stuff. these are the provisions of the 1977 constitution of the union of socialist soviet republics. they were not worth the paper they were printed on. as part of the human rights guaranteed, a large number of
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still extent countries have president for life. they are what the framers of our constitution called the real constitution of those countries, the provisions that establish the institution of government do not prevent centralization of power in one man or one party, thus enabling the guarantee. structure is everything. justice scalia always said while he tried to get the bill of rights cases correct, he cared most about the constitutional structure cases. once or twice each summer he even taught a course called separation of powers. his opinion on the structural issues of separation in powers and federalism often cited the federalist papers. he would routinely urge law students and lawyers to read the whole of the federalist. this panel looks at justice scalia's federalist focus on
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the importance of separation of powers and federalism as structural perfections of liberty. and as usual, the federalist society has assembled a terrific panel to discuss this. i will introduce each of the panelists in the order in which they will speak, they will each speak about eight minutes and we will have some responses to each other and then we will entertain any questions. first, very fittingly, doctor baker. doctor baker has been a professor at georgetown law school and is a visiting professor at baking university school of transactional law. he is the professor emeritus of law at the louisiana state university law school . he has also taught at a number of other law schools, i should note. professor baker received jd with honors at the university of michigan law school and his bachelor of arts magnet come loudly from the
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university of dallas. he also earned a phd from the university of london. several years, professor baker taught the course for the federalist society on separation of powers from the late justice scalia.our second speaker is professor donovan ehrlich. jonathan turley is a nationally recognized scholar who has written extensively in areas ranging from constitutional law to legal theory to tort law . and his teaching here at tulane law school and then joined george washington university in 1990 and in 1998 became the youngest chair professor in the school's history. he is the founder and executive director of the project older prisoners and has written more than seven academic articles here in a variety of leading law journals including cornell, georgetown, harvard and
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northwestern among others. most recently pleaded a three-part study of historical and constitutional evolution of the military. he has served as a consultant on homeland security and constitutional issues and is a frequent witness before the house and senate. professor turley received his undergraduate degree from the university of chicago and his law degree from northwestern university.and his first job out of law school was a law clerk for the united states court of appeals, yours truly was clerk judge as well. we go way back. luther strange is the attorney general of alabama. highest in government. [laughter] before his election, general strange practiced law in birmingham alabama and before
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establishing his own law firm was a party partner with bradley cummings. he is chairman of the republican attorneys general association and also served as the court appointed coordinating council for the gulf coast states and its historic deepwater horizon oil spill litigation. general strange is well educated, he received both his undergraduate and law degrees from tulane. he was a scholarship racquetball player while earning his undergraduate degree at tulane. in june of last year, this year, sorry, he was inducted into the tulane law school hall of fame. roger pilon is the founding director of the nato center for constitutional studies and also the founding publisher of the supreme court review and inaugural holder of cato's kenneth
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behind the chair and constitutional studies. before joining nato, roger held several senior posts in the reagan administration including the eight justice and was national fellow at stanford . roger holds a ba from columbia university and na and phd from the university of chicago and a jd from the george washington university school of law. and finally, congressman ron desantis. has been elected to the united states house in 2012, congressman santos from florida has served on in ministration, foreign affairs and oversight and government reform committee. he is the chairman of the oversight committee national subcommittee and vice chairman of the judiciary subcommittee of the constitution in civil justice. he earned a bachelor of arts magnet come loudly and is the captain of the varsity baseball team at henry,
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continuing the athletics. he also graduated with honors from harvard law school. while at harvard, he earned a condition in the united states navy as a jagged officer. during his active duty navy service he served as a military prosecutor, supported operations at the terrorist detention center at 2007 truth served as an advisor to a us navy seal commander of counterinsurgency operations in iraq. he also performed duties as a federal prosecutor, taught courses on military law and wrote on constitution. he is currently a lieutenant commander in the us navy reserve, thank you. we will begin with professor baker. [applause]
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>> thank you judge. in this convention you will hear a number of references to justice scalia's lone dissent in the 1988 decision in the independent counsel case, forcing jolson. that dissent went from being largely dismissed to be universally celebrated.and whelan in a piece instead review online last month in september chronicle the movement of linda greenhouse conversion, missed greenhouse now describes justice scalia's dissent as president. that means farseeing and prophetic. liberal columnist richard reeds used the same word, president to praise justice scalia's dissent. back when ken starr was investigating the independent
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counsel, president clinton, i think there was a connection there.that caused some rethinking. for the most part however, liberal commentators did not praise justice scalia's opinion. most often, they have used the word uncompromising. in a negative way to describe the opinion. of course, admirers, as you heard from justice alito this morning use the word uncompromising in a very praiseworthy sense in talking about justice scalia. but the usual detractors do not understand is that justice scalia was able to be president, farsighted, prosthetic precisely because he was uncompromising in looking backwards. now of course, virtually everyone knows that justice scalia looked back to the public meeting of the worst of the constitution as understood at the time that
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they were drafted. the most in this convention will note that justice scalia's original-ism was tied to the constitutional structure as judge prior just talked about. but how many of you here realize that his understanding of structure came largely from the federalist papers? that's what i want to discuss . i will make a few points, hopefully i will get to the good one. the importance of justice scalia's place on the federalist papers, not just scalia's understanding of the constitutional structure, primarily separation of powers area and explain in the federalist, encourages approach to the text of the constitution. time permitting, i will mention something about federalism. first on the importance of the federalists. as you've already heard, justice scalia would routinely ask students and lawyers in meetings or groupings, have you read the federalists?
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some hands went up and he would say no, i mean the whole federalist and hands would go down. his materials in the course that we taught, that he taught as well every summer on a separation of powers always begin with federalist 47 and 48. those are the main ones on separation of powers although separation of powers routes the essays of the federalists. usually after we got done with that, he would go into an attack on the progressives and their attack on separation of powers. often it was an attack on justice cardoza's reference to the powers as quote, aesthetics. last time he thought it was a sustained dialogue, one might say diatribe, by woodrow wilson and his attack on separation of powers. early on in our relationship, i asked him when was it he
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came to really pay attention to federalism? he said it was when he was head of llc because he said the questions we were doing, there was no case law. well, like the founders, take the first federation, like partial court, where you turn? you turn to the text. but in many ways, the text is like the building plan and it doesn't always explain exactly how things locked together when they could lock together in different ways. understanding that is really part of a context in which his original-ism and his textualism must be understood. some of the examples, there's many law professors who have taught over theyears , they talk about marbury as this great triumph of justice marshall figuring out very cleverly how to get around that. as leos has written, before
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he was on the bench, then professor scalia would explain how this is really how the constitution and supreme law is supposed to work. this contextualism has a problem because there's nothing in the text that says judicial review or what the court's power should be. it says about rule of law and it says about that but in our seminars, we could be much more simple about it. he would just say marshall probably dries federalist 78. the fact is, you can take most of the landmark opinions of the marshall courts, even though they did not cite the federalist and they are straight out of the federal. but this question of whether it is or isn't out of the federalist has to do with the legitimacy and limits of judging. think about it. there are many conservatives who believe that somehow
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judicial review is still legitimate. and if it's illegitimate, then the choices, you might be slightly illegitimate or restrain or you can be fully illegitimate and it's kind of like being partially pregnant. it justis hard to restrain . going from partially to folly. and if however you understand separation of powers as he did, then there are times when you are forcefully, uncompromisingly limiting the power of one or the other houses but that doesn't make you an activist. he really didn't use that term. it is a question for him of following the taxes, the taxes is tied to the structure. two. his citations to the federalist were not just window dressing. there was an article in the
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law review in which the professors said almost every time the supreme court justices cites the federalist, it's much about nothing. that was not the case with the justice and you can see it if you read and analyze and compare morrison to olson, the majority opinion written by the chief justice in the dissent. so if you look atthat , what you will see, first of all what's remembered are all one-liners. i heard this one of the things, a wolf comes as a wolf. that's what people remember. and when he was feeling the demise in a way of what's this, ... he said i'm glad to see that those who live by the gypsy diction died by.
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but he said those memorable phrases in order to get you to pay attention to what he was actually saying area what he wants you to do is look at the way he argues as compared to the way they argue. in many ways, the chief justice in that case was contextual. because he starts out with the appointments clause. doesn't mention separation of powers.then he goes to the removal.there is a clause. the removal, it goes back to this famous dispute on 1789 in the congress and then goes through all the cases. he says well, what about separation of powers as a whole ? it's not just a flip event. he starts with the principle of separation of powers and then works through it, completely different approach in terms of where you start . so that can pose a problem for some contextualism
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because they say where is separation of powers even in the constitution? there's no term there. that term appears in 17 80 constitution of massachusetts. it doesn't appear in our document because of the blueprint. it's not an explanation. the federalist is the explanation of the blueprint. i wasn't going to spend much time on federalist, although he got the federalist decisions right. he didn't much focus on them, why? one time the 17th amendment, basically killed the federalist papers. he also said people won't preserve federalism don't expect federal judges to preserve federalism. but more importantly in a way, some of the important
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federalism cases are also separation of powers cases. the sovereign immunity, 11th amendment cases. the federal government, congress and acting about obamacare. federalism is really the joiner of federalism and the separation of powers. justice scalia's loan dissent in morrison is the dilution of presidential power as given in article 2 ultimately vindicates. it will be interesting to see whether the constitutional limits on expansion of residential power will vindicate him. although justice scalia died before the 44 split in us versus texas on the issue of president obama's order allowing illegal aliens.
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and i don't think there's much doubt about how he voted. so i wouldn't be surprised that the justice has taken so far a flexible approach to separation of powers. sadly it's become compromised by the separation of powers as applied to the limits on presidential power. during the president's donald trump, thank you very much. [applause] >> first of all i'd like to thank the federalist society again for the honor to speak with you today, it's an honor. i do appear with my former co-clerk, the only disruptive memory i have of him from working with him is my judge and his judge sat in the same panel and there was one case that was justunbelievable ,
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he sacked the constitutional case and john miner was already senior status. my judge technically was head of the panel and so i spent the entire week deferring because he's a very nice guy and i said grab the case, you're both going to be on the same side. for the love of god, i'm saying why did he grab the case? he will let you read the case. i come around the corner and there is prior talking with him, feverishly and prior looked up with the most menacing look i've ever seen in my life and sure enough, they wrote the opinion and i've been better about it ever since. so thank you for this cathartic moment. anyway, it's a great honor to speak about justice scalia. scalia and i shared a
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heritage, i'm half sicilian and half irish and he would make fun of me. when justice scalia passed away, he said are there any memories you'd like to share and one that came to mind was this sicilian senator and we were standing by the bay window and justice scalia was holding forth on a story and the sicilian security guards kept on trying to move us away from the window and scalia wouldn't move and the security guards tried to finally turn to me and said why won't you move? we're afraid there's a hidden team looking for the sicilian trigger and we're afraid you're in danger at the window and i said so the reason is that justice scalia is doing a story and i'm pretty sure that he wants to end the story but i know he'd rather one of us died. but the fact is, i thought about that story only because people have been trying to
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move scalia to the left or right his entire life. he never did move. he was one of the justices can honestly say he changed the court more than the court changed him and the reason is he came to the court with a profound sense of the constitution and its history. one of the things i think gave him that foundation, that legacy was that he based his opinions heavily steeped in the federalist papers. he also had a formalist approach to the constitution as i mentioned in a second. i share that approach. i'm a minority among academics in believing in a formalist approach to the separation of powers. most academics view that as nacve and complicit. i just gave a speech in georgetown where one of the questions was you do accept that words haveno objective meaning .
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and there was a time when a statement like that would have left me entirely confused but then i remembered i was at georgetown. so the fact is that the original deal struck with the american people, those words did have meaning. and while my colleagues do it as a precious authority it was a regionalized that the american people were given and scalia thought that way and it added a depth to his opinions. for me, the really most indicative and profound opinion the road was inference and that of course was an early methodological demonstration of what became quite familiar as scalia's analysis. he said in that, famously said in that opinion, because there are no constitutional text became to this question, the answer to the challenge
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must be sought in historical understanding and practice. when you look back at that statement and you see what came after it, you realize how profound that was. senator run home to the federalist papers, he said run home to the text and the original meaning. in that decision of course inference you have this wonderful clash between scalia and souder over the federalist papers and they debated the meeting of number 27, 36, 44 and 45. what was interesting is that even souter acknowledged the meeting was in those federalist papers would or should be given great weight in the analysis of the case. this case dealt with having state officials required to carry out federal functions or duties. so what happened was this wonderful exchange and quite frankly scalia and mike, you got the better of the exchange as to what was meant
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by the structure. and it was scalia who would often talk about the sovereignty of federalism. the concrete notion of the relationship of federal government to the state . and that sense of clarity, that formalistic approach was also evident in morrison. i would like to discuss that further since it was just discussed by john but in that case, i'll simply note that once again when he answered the question that he said was one of the most difficult, he went back to the federalist papers and quoted federalist 51 when google you said as the weight of legislative authority requires that it should be dust cited the weakness of the executive may require on the other hand that it be fortified. so he was very conscious of these lines and that's one of
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the reasons i like his work so much. i happen to believe that words do have meaning in the constitution despite my own personal policy and interest. >> he was coherent and persistent because he had eatables. people often criticized him as dogmatic but you are supposed to be dogmatic on principles, because if you're not you are
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what we call unprincipled. and so, when he passed, i felt i felt not only did we lose a judicial icon and a wonderful human being, i don't know anybody who ever knew scalia who didn't like him. he was remarkably likable. he would try to get into a fight with anybody with any subject because he really liked law students. if there was a pet in the room, he would argue with pets because he liked to argue argue. he was vivacious and intellectually alive he was a great believer in separation of power and federalism. when he left, i remember thinking about a wonderful quaker who said i shall pass this way but once. any good that i can do, or any kindness, let me do it now. i may not differ or neglected for i shall not pass this way again. scalia didn't wait or
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compromise. he did what he could and he remained confident and committed to it. because of that, it may not come this way to pass for quite some time again, but there are many people who cherish the legacy that he left, respect the principles he represented and will carry on those same principles in the future, i believe. thank you very much. [applause] >> thank you. i will take the risk of standing at this podium, although i'm pretty far away from it, i hope you can hear me all right. it's just an incredible honor to be here and i want to thank the fellow society for inviting me and including me with this distinguished group of guests and friends.
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at this time in history, to be an attorney general in this state, i get to follow an office that was formed by my close friend jeff sessions and bill pryor who set an example that i have tried to follow in my years in office. the six years, six very active years that i've been there. i met bill many years ago and at the advice of jeff sessions said you need to encourage young conservatives that want to run for office and be involved in the debate. i didn't really know what that meant. somehow or another, i guess nobody nobody else would do it or could do it or, i ended up being the chairman of bill's election election campaign when he took jeff's place and i'll never forget walking the halls. these data up all made on election night. the judge knows the exact total of his victory, but it was something like 6767.
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[laughter] out of 2.3 million votes. so if i can just say it was close. we were up literally all night walking the back room of the ballroom and we just decided we were going to go out and declare victory and make them prove that we didn't win, and of course he did win and the rest is history. when bill was attorney general, there may be six or seven, less less than ten republican attorneys general in the united states. now there are 29 after last election. [applause] twenty-nine conservative republicans. i was proud to be elected chairman of that committee last week in austin. two weeks ago, kim stossel who
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will be here saturday morning to sign her book, but an article in the wall street journal that set the conservative republican generals of the united states or the last line of defense that protect the constitution and the rule of law. the world has changed. we are no longer the last line of defense. we are now the tip of the spear. the whole issue and why is that it's been a historic time to be an attorney general, the oath that everyone takes to uphold the constitution of the united states in your respected state and we uphold the rule of law. politicians come and go, but what preserves our liberties and our rights in our economy and everything we enjoy in this country is the constitution and the rule of law.
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we don't get to pick and choose the laws we like and don't like and the ones that we want to enforce or don't enforce. there's a democracy set up for that purpose and it works extraordinarily well if you protect and preserve it. were talking about federalism today. we can talk about what we understand about horizontal federalism and the balance power in our country. one of the times i have hoped for quite some time is that congress would find a way to reassert its proper role in our balance of power here in washington. i think a lot of power has been given away so there's been problems that we have had to address and i have great hope about that but there's also vertical separation of the state versus the federal government. that's where we atty. gen.'s have been very active in the past 6 - 8 years. i don't have the precise number, dozens of lawsuits have been filed across this country against the obama administration
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over the past number of years for violating the rule of law, for exceeding the power that congress granted to them. we've started and we've one. i will just mention three cases that illustrate the point. one has to do with bathrooms. i never thought i would be litigating about bathrooms. they decided that all schools should require all people to allow people to use the bathroom of their choice based on their sexual orientation. eleven states challenge that rule in federal court and on august 21, a nationwide injunction was secured three months after the initial act. i will just editorialize because i was curious when the issue was
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brought by attention. i asked one of the school administrators and i said is this a problem? is this a significant problem that requires a federal mandate. you might not be surprised, if you live in the real world that this supervisor said it's not a problem of at all. this occasionally happens and we do something really revolutionary. we have the teachers and the parent and the student and the administrators also down and see if we can work out an accommodation that works for everyone and that's exactly what we've done. it is not a problem. it is a problem for 99.9% of the other parents who don't understand this when the federal government mandate something like that. regardless of that, we were successful. immigration as mentioned earlier, the president issued an order on november 14 to legalize millions of immigrants in this country. less than two weeks later there was a lawsuit challenging that action and in june


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