The Positive Political Theory of Legislative History: New Perspectives on the 1964 Civil Rights Act and its Interpretation

Abstract:     
A central issue in the contemporary debate about how statutes ought to be interpreted is the proper role of legislative history. The use of legislative history in statutory interpretation is often seen as problematic, in part because the legislative process, involving many different legislators with different points of view, provides contradictory information about a statute's meaning. Scholars of very different normative stripes - including textualists, purposivists, and those who eschew reliance on legislators' will altogether - raise questions about the historical reconstruction of legislative intent. Indeed, a common conclusion in the literature on statutory interpretation is that legislative history can be used to rationalize any point of view, leading some to conclude that it is useless to the enterprise of statutory interpretation.

In this Article, we revisit this enduring conversation about the proper place, if any, of legislative history in statutory interpretation. Our perspective is distinct from traditional arguments in that it relies on a different underlying theoretical foundation and, significantly, a positive political theory of statute creation. This theory, in turn, provides both a theory of legislative rhetoric and of statutory interpretation.

We apply our approach to reading legislative history to the passage and interpretation of the Civil Rights Act of 1964. Part I of this Article presents our positive political theory of legislative decision making, on which our characterization of coalitional strategies and statute making is based. In Part II, we analyze a set of critical events in the legislative history of the Civil Rights Act of 1964. We next consider, in Part III, how courts, in pursuing expansionary constructions in the early years following the Act's passage, relied on the legislative history produced by ardent supporters of the Act. Lastly, in Part IV, we suggest how our approach to interpreting legislative history helps shed light on the politics of civil rights, on theories of legislation and statutory interpretation, and on the patterns of modern American politics and social policy. Our objective, in the end, is to draw from our approach, and from a revisionist view of the Civil Rights Act, lessons of general applicability for the interpretation of the legislative history of statutes. This project, then, presages further analytical work on the puzzles of legislation and its interpretation.

Keywords: statutory interpretation, statutory construction, legislative history, positive political theory, Civil Rights Act of 1964

JEL Classifications: K1, K10

Accepted Paper Series