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Social Science History 24.2 (2000) 333-348

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Everyone’s Doing Congressional Historiography:
Where Are the Historians?

Barry Friedman

Roundtable: The U.S. Congress in the Twentieth Century

The growth of administrative government in the United States since the turn of this century has meant the gradual rise of statutory enactments as a (if not the) primary source of law. Despite the burgeoning importance of the work of legislatures, legal scholars were relatively slow to devote deserved attention to statutes and the bodies that enacted them. The familiar rhythm of the common law continued to draw the bulk of theoretical analysis.

Any lingering concern about the relative neglect of statutes and legislative bodies may now be put aside. The last two decades have seen a remarkable [End Page 333] collaboration among scholars in the disciplines of law, economics, and political science concerning how we can better understand what motivates legislatures and how we should interpret their work product.1 This attention to statutes and the legislative process has caused scholars to engage in a great amount of congressional historiography, as they test their theories against legislative and political practice. Historians are noticeably absent from this interdisciplinary collaboration, a state of affairs this roundtable is designed to address. Everyone, it seems, is doing congressional historiography—everyone, that is, except the historians.

Of course, the interdisciplinary project described in this essay is somewhat different from what historians may consider the primary focus of congressional historiography. My conclusion here explores some of the reasons historians generally might be absent from the interdisciplinary endeavor, but one possibility is worth mentioning immediately. For historians, laws passed by Congress represent national policy, and so the interest is in what motivates the passage of the law and how the law is shaped.2 In contrast, legal academics (and some political scientists and political economists) tend to believe that policy is made as much by what happens after a law is enacted, as by its enactment.3 After passage, the president can veto a bill,4 the Supreme Court can strike down a law as unconstitutional,5 agencies and executive officials can enforce the law (or fail to enforce it) to suit their own policy concerns,6 and courts can interpret the law in a way that stretches it beyond recognition or narrows it substantially.7 Thus, the interdisciplinary project discussed here is one of congressional historiography, but the focus goes well beyond the policy debates that occur prior to enactment.

In this article I first discuss developments during the last century in the fields of democratic theory and statutory interpretation, highlighting the evident role played by congressional historiography. Next, I enumerate the ways historians and more elaborate legislative historiography could aid the endeavor. Then I conclude with some casual speculation as to why historians have not taken part in this interdisciplinary project.

Theories of Statutory Interpretation

The history of the academy’s interest in legislative bodies is inextricably tied to the problem of interpreting statutes. Statutes are law, and by common (although not unchallenged) consent, statutes are hierarchically superior to [End Page 334] common-law decisions. However, there is often considerable uncertainty about how a statute is to be interpreted. It does not take much sophistication with the subject matter to see that how one interprets a statute has a great deal to do with how one conceives of the body that drafted it.

Because there long have been statutes, there long have been methods of interpreting them.8 The interpretive methodology ascendant at the turn of the century was what we today call intentionalism. Intentionalism is rooted in the notion that a legislature enacting a statute X has a specific intent about how cases A, B, and C that arise under that statute are to be treated. The intentionalist interpreter gathers together whatever scraps of evidence there are—most importantly the text, but also assumptions about how language is used (canons of interpretation), any reports or reported debates on the bill, and the history of its enactment—and tries to ascertain what the legislature intended...


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