Issue 1

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See Anita S. Krishnakumar, Statutory History, 108 Va. L. Rev. 263, 263 (2022) (“The New Textualism championed by the late Justice Scalia is perhaps best known for its insistence that courts should not consult legislative history when interpreting statutes.”). ^ This Note considers The Federalist to be a form of legislative history because — like statutory legislative history — it was a series of documents created internally to an enactment process (the Constitution’s ratification) that aimed to persuade and inform relevant decisionmakers (the States) about a specific legal text (the Constitution). See Laborers’ Pension Tr. Fund-Detroit and Vicinity v. Kiefer (In re Kiefer), 276 B.R. 196, 201 (E.D. Mich. 2002) (calling The Federalist “legislative history”); Franklin Cal. Tax-Free Tr. v. Puerto Rico, 805 F.3d 322, 347 (1st Cir. 2015) (Torruella, J., concurring in the judgment) (same), aff’d, 579 U.S. 115 (2016); Thomas W. Merrill et al., Text Over Intent and the Demise of Legislative History, Federalist Society Panel During the National Lawyers Convention (Nov. 17, 2016), in 43 U. Dayton L. Rev. 103, 116 (2018) [hereinafter Text Over Intent] (remarks by Prof. Michael Stokes Paulsen) (“[I]f you’re a good originalist-textualist, you do not use legislative history, including the Federalist Papers.”). ^ See Lawrence B. Solum, The Public Meaning Thesis: An Originalist Theory of Constitutional Meaning, 101 B.U. L. Rev. 1953, 1959, 1965 (2021); see also id. at 1957 (defining public meaning as “roughly, the meaning that the text had for competent speakers of American English at the time each provision of the text was framed and ratified”). ^ A common story is that modern originalists have jettisoned “original intent” originalism in favor of “original public meaning” originalism. See, e.g., Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A Matter of Interpretation: Federal Courts and the Law 3, 17 (Amy Gutmann ed., 1997) (“Government by unexpressed intent is . . . tyrannical. It is the law that governs, not the intent of the lawgiver.”). However, as many scholars have argued, Justices have acknowledged, and this Note demonstrates, Framing intentions still suffuse the Court’s original public meaning analyses. See infra section II.A, pp. 870–72. ^ See infra notes 48–53 and accompanying text. ^ E.g., Neil M. Gorsuch with Jane Nitze & David Feder, A Republic, If You Can Keep It 106 (2019). ^ See generally William N. Eskridge, Jr., Should the Supreme Court Read The Federalist but Not Statutory Legislative History?, 66 Geo. Wash. L. Rev. 1301 (1998). ^ See id. at 1323. ^ See sources cited infra notes 57–59. ^ See Eskridge, supra note 7, at 1317–23. ^ See sources cited infra notes 93–95.

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According to the “mischief rule,” courts should read statutes with an eye toward “the problem that prompted [legislators to propose] the statute.” Samuel L. Bray, The Mischief Rule, 109 Geo. L.J. 967, 967 (2021). For an argument in favor of this interpretive principle, see generally id. ^ 144 S. Ct. 2244 (2024). ^ Chevron U.S.A. Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837 (1984). ^ See William N. Eskridge, Jr., Spinning Legislative Supremacy, 78 Geo. L.J. 319, 320 (1989). ^ Caleb Nelson, Statutory Interpretation 349 (2d ed. 2024). ^ See John F. Manning & Matthew C. Stephenson, Legislation and Regula­tion: Cases and Materials 203 (3d ed. 2017) (“By the 1970s, legislative history had become perhaps the central focus of the Court’s statutory interpretation jurisprudence.”).

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See William N. Eskridge, Jr., The New Textualism, 37 UCLA L. Rev. 621, 666–67 (1990). ^ See, e.g., Scalia, supra note 4, at 31 (“I object to the use of legislative history on principle, since I reject intent of the legislature as the proper criterion of the law.”); Max Radin, Statutory Interpretation, 43 Harv. L. Rev. 863, 872 (1930) (“A legislative intent[ is] undiscoverable in fact[ and] irrelevant if it were discovered . . . .”). Some public choice scholars add that because legislators are “utility-maximizing [actors] whose primary objective is to be re-elected,” they “do not develop well-conceived legislation, preferring instead to satisfy interest groups through ad hoc bargaining.” Robert A. Katzmann, Judging Statutes 41–42 (2014). ^ Antonin Scalia & John F. Manning, A Dialogue on Statutory and Constitutional Interpretation, 80 Geo. Wash. L. Rev. 1610, 1612 (2012). ^ See Conroy v. Aniskoff, 507 U.S. 511, 519 (1993) (Scalia, J., concurring in judgment) (quoting Aldridge v. Williams, 44 U.S. (3 How.) 9, 24 (1845)). ^ Justice Scalia worried that “under the guise or even the self-delusion of pursuing unexpressed legislative intents, . . . judges [would] in fact pursue their own objectives and desires” by wielding legislative history. Scalia, supra note 4, at 17–18. ^ Exxon Mobil Corp. v. Allapattah Servs., Inc., 545 U.S. 546, 568 (2005).

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