Contextual Textualism: How Legislative History Can Restrain Judges, Revitalize Congress, and Restore the Conservative Legal Movement

Abstract

In recent decades, Congress has steadily ceded power to the federal judiciary. The judiciary, not Congress, is often left to make important choices about federal policy, in part because Congress leaves it with too little guidance about its policy objectives. The problem has been exacerbated by textualism, which disregards extra-textual clues about Congress's intent. This paper argues that Congress can ameliorate the problem by adopting a Legislative History Act. The Act would direct judges to interpret statutes according to Congress's intent, as expressed in specified legislative-history materials. That direction would give textualist judges a textual hook to consider a much broader range of materials than they consider today. They would have more context for interpreting statutes, and would thus more often adopt interpretations in line with Congress's policy goals.