Deciphering Section Three’s “Legislative History”: Exploring its Application and Misinterpretation

This is the sixth in a series of essays responding to objections that have been made to enforcing Section Three of the Constitution. The first five essays can be found here, here, here, here, and here. We previously discussed the use and misuse of constitutional legislative history in interpreting Section Three of the Fourteenth Amendment. We presented some important general principles about the role of legislative history and discussed mischaracterizations of the legislative history of Section Three. Our concern is that the use of constitutional legislative history can lead to misleading and distorted interpretations. We now take up some problems with the use of constitutional legislative history, even where accurately recounted, in the course of legal analysis of the Constitution’s text. Our point is that the legal analysis and conclusions from the legislative history are flawed. Lash treats evidence of the drafters’ purposes, motivations, or immediate desired political consequences as limitations on the range of the text’s original linguistic meaning. This is a mistake, as the text of the Constitution is an authoritative legal text, not a collection of specific historical intentions or political goals. Lash’s treatment of the legislative history of Section Three departs from this premise. He imputes certain purposes to certain drafters of Section Three and assumes that any reading of the text that might extend its application beyond these supposed limited historical purposes must be considered “unclear” or “ambiguous.” Lash also uses the absence of legislative history on a particular point as if it establishes that the text of Section Three is “ambiguous.” Negative inferences from silences in legislative history are unreliable as a rule, and Lash’s inferences are unsound. Lash also relies on the statements or positions of opponents of Section Three as persuasive evidence of the text’s true meaning, even where the dissenting views were unrepresentative of the actions of the drafting or ratifying body. This is highly unreliable evidence.