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03/26/2014

Statutory Originalism in Hobby Lobby
Chris Green

Mike Ramsey noted a couple of months ago that the Supreme Court has repeatedly and unanimously explained that the touchstone for statutory interpretation was how Congress used the statute's language at the time of enactment: exactly the same approach to statutes that originalists advocate for the Constitution.  I was struck reading the Hobby Lobby transcript from yesterday how deeply originalist Solicitor General Verrilli's argument was. His explanations on behalf of the administration of the task of statutory interpretation repeated a nearly-identical mantra five times:

p. 46: "[T]he relevant question is what did Congress think it was doing when it enacted RFRA in 1993?"

p. 48: "I think the relevant question here is what did Congress think it was doing in 1993?"

p. 51: "[Hobby Lobby's view] would be such a vast expansion of what Congress must could have thought it was doing in 1993, when it enacted RFRA..."

p. 74: "[T]he question here is what Congress thought it was doing in 1993."

pp. 82-83 (Verrilli's  closing): "Congress can't have thought it was authorizing [Hobby Lobby's view] when it enacted RFRA in 1993."