The Public Justification Approach to Statutory Interpretation

Legislative history seems inextricably intertwined with the concept of legislative intentexamining legislative history makes sense only if one wishes to determine legislative intent. The contestants on both sides of the current battle over using legislative history may agree on little, but they seem to agree on this point. Legislative history’s devotees argue that determining legislative intent is the goal of statutory interpretation, and the legitimacy of referring to legislative history seems to follow without much argument. That is, legislative history merely serves as a tool to find illusive legislative intent, but, in itself, lacks significance. Those who attack legislative history also view it as inexorably coupled with the concept of legislative intent. Thus, they argue against the use of legislative history by attempting to show that legislative intent does not provide a proper basis for interpreting statutes. Alternatively, they argue that legislative history provides poor evidence of legislative intent, and thus holds scant value because it is useful only as evidence of intent. In this paper, I show that one can accept the arguments that legislative intent is chimerical and that legislative history provides a poor tool for discovering any legislative intent that exists, and yet continue to believe that some legislative history retains an important place in the interpretive enterprise