The Debate over Statutory History
An interesting debate about statutory history emerged at the Wisconsin Supreme Court this past term in County of Dane v. LIRC (2009 WI 9). By statutory history, the court is referring to previous versions of a statute, which the legislature has subsequently repealed or revised. Even prior to County of Dane, the court had stated, “By analyzing the changes the legislature has made over the course of several years, we may be assisted in arriving at the meaning of a statute.” Richards v. Badger Mutual Insurance (2008 WI 52).
The current debate centers on whether reliance on statutory history is consistent with a plain meaning analysis. Justice Roggensack has asserted, “statutory history is part of a plain meaning analysis because it is part of the context in which we interpret statutory terms.” Chief Justice Abrahamson, on the other hand, asserts that statutory history is inconsistent with a plain meaning analysis because if the text is plain, there is no need to go beyond the text.
While the intellectual debate over statutory history is commendable, the arguments thus far have been misplaced, and as a result, we should refocus the debate. The debate should not center on whether statutory history is consistent with a plain meaning analysis because such a debate does not answer when and how statutory history can be utilized. As such, the current debate is meaningless. Rather, the debate should center on whether statutory history is an intrinsic or extrinsic aid to interpretation.
The confirmation hearings for Judge Sonia Sotomayor are over, and the reviews have been overwhelmingly negative. The public tuned in expecting a discussion of the nominee’s qualifications and a debate on the role of the Supreme Court in our constitutional system. What they got, instead, was a battle of metaphors.