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Monday, October 26, 2009

Making Legislative History for Law Review Purposes

Use of legislative history is famously controversial for purposes of statutory interpretation.   But sometimes, the meaning of the law is clear but the actual motivation of the legislators that passed it is still interesting.  I faced that issue for a paper I wrote on the Immigration and Nationality Act Amendments of 1965.  No one doubted that the Act removed racial and ethnic bars from an immigration policy that until then preferred whites, but many commentators called the subsequent racial diversification of the immigrant stream, and therefore the browning of America, as a classic unintended consequence, which, if it had been anticipated, would have killed the reform. Theodore H. White called the Act "noble, revolutionary and probably the most thoughtless of the many acts of the Great Society."  I read the legislative history of the Act as reflecting principled anti-racism (and therefore at least acceptance and possibly encouragement of non-white immigration) that might have been expected of many of the same people who passed the Civil Rights Act of 1964 and the Voting Rights Act of 1965.  But I also thought it would be interesting to check in with some of the drafters of the Act decades later.

There is always the risk that they would not remember correctly, or that they would shape their memories to satisfy the expectations of a subsequent generation.  Nevertheless, what they said supported my thesis, saying they thought non-whites had been treated unfairly under prior immigration policy.  In my view, these claims were credible because they were consistent with what they said in 1965.

The exercise was fascinating for a number of reasons beyond what they reported about the Act.  Many of these people had great stories.  Peter Rodino told me about the Nixon impeachment, for example, and it was wonderful to talk with a heroic lawyer like Nicholas deBelleville Katzenbach who made such important contributions in the civil rights era.   It was also interesting to see how many of these people could be reached--it is clear that even powerful and important people want to talk about what they regard as their signature accomplishments.  I did not get to talk with Strom Thurmond; his staff implied that he had no memories of this Act, or, really, of anything else.

I wanted a quote from Gerald Ford, who had been the House Minority Leader in 1965.  I wrote, mentioning that I, like him, was a graduate of the University of Michigan and the Yale Law School.  This worked, he wrote back with the letter below.  His recollections were consistent with my thesis that Congress recognized and accepted the possibility that there would be many more non-white immigrants. 

I love Jerry's letter.  When in office, President Ford was famous for his obliviousness.  (For example, when he met Linda Ellerbee, who was 5' 6", he accepted her claim to be 5' 11".)  In his letter to me, he deal with the gender ambiguity of the first name "Gabriel" (which is always male, BTW; "Gabrielle" is the feminine) by calling me both "Ms. Chin" and "Mr. Chin."   I don't care if he was spacy--In my book, he was a good Wolverine, a good Eli, and, from what he said in 1965, 1996, and later when he supported affirmative action in Grutter v. Bollinger, a sincere anti-racist as well.

GRF Scan


Posted by Marc Miller on October 26, 2009 at 05:47 AM | Permalink


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Very interesting post Professor Chin. My thoughts on this kind of use of ultimate post-enactment legislative history, here

Posted by: Josh Blackman | Oct 26, 2009 8:54:37 PM

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