The Courts and the Congress: Should Judges Disdain Political History?

Strauss, Peter

In an earlier article in these pages, Professor John Manning argued that the use of legislative materials by courts in effect permits Congress to engage in delegation of its authority to subunits of the legislature, in violation of the separation of powers. Professor Strauss, acknowledging that the previous generation of courts may have excessively credited the minutiae of legislative history, responds that judicial attention to the political history of legislation is required, not forbidden, by considerations of constitutional structure. Only awareness of that history will promote interpretation reflective of the context and political moment of Congress's action. Our history of previous conflicts between legislature and judiciary ought to have demonstrated the hazards of a judiciary that holds itself aloof from the legislative enterprise. Both long traditions of the common law and constitutional allocations of authority counsel judges to interpret statutes with a view to adding 'force and life" to the remedies legislatures adopt. Professor Strauss acknowledges that, for the reasons Professor Manning evoked, courts should not accord legal authority to individual elements of legislative history. Nonetheless, he argues, the use of political history to inform the judge's own interpretation fits comfortably within a broad range of judicial practice; and pointedly ignoring political history risks releasing the courts from separation of powers constraints equally important to their own functioning. An intelligent, independent, and respectful attention to political history need reflect neither judicial subservience to the legislature nor, what would be as objectionable, judicial disdain for its work.


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April 28, 2016