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106 Colum. L. Rev. 70 (2006)
What Divides Textualists from Purposivists

handle is hein.journals/clr106 and id is 116 raw text is: WHAT DIVIDES TEXTUALISTS FROM PURPOSIVISTS? John F. Manning* Recent scholarship has questioned whether there remains a meaningful distinction between modern textualism and purposivism. Purposivists tradi- tionally argued that because Congress passes statutes to achieve some aim, federal judges should enforce the spirit rather than the letter of the law when the two conflict. Textualists, in contrast, have emphasized that federal judges have a constitutional duty to give effect to the duly enacted text (when clear), and not unenacted evidence of legislative purpose. They have further contended that asking how a reasonable person would understand the text is more objective than searching for a complex, multimember body's purpose. Writing from a textualist perspective, Professor Manning suggests that the conventional grounds for textualism need refinement. Modern textual- ists acknowledge that statutory language has meaning only in context, and that judges must consider a range of extratextual evidence to ascertain tex- tual meaning. Sophisticated purposivists, moreover, have posited their own reasonable person framework to make purposive interpretation more objec- tive. Properly understood, textualism nonetheless remains distinctive because it gives priority to semantic context (evidence about the way a reasonable person uses words) rather than poliey context (evidence about the way a rea- sonable person solves problems). Professor Manning contends that the textu- alist approach to context is justified because semantic detail alone enables legislators to set meaningful limits on agreed-upon compromises. In con- trast, he argues that by authorizing judges to make statutory rules more coherent with their apparent overall purposes, purposivism makes it surpass- ingly difficult for legislators to define reliable boundary lines for the (often awkward) compromises struck in the legislative process. INTRODUCTION ..................................................... 71 I. TEXTUALISM AND LEGAL PROCESS PURPOSIVISM: COMMON GROUND ...................................................... 78 A. Textualism and Extrastatutory Context (Including Purpose) ............................................ 79 B. Legal Process Purposivism and the Enacted Text ..... 85 II. TEXTUALISM, PURPOSIVISM, AND LEGISLATIVE SUPREMACY .... 91 A. Semantic Versus Policy Context ..................... 92 B. Coherence, Compromise, and Legislative Supremacy . 96 1. Purposivists and Legislative Supremacy ........... . 96 2. Semantic Import and Legislative Compromise .... 99 CONCLUSION ......................................................... I10 * Professor of Law, Harvard Law School. I am grateful to David Barron, Bradford Clark, William Kelley, Richard Fallon, Philip Frickey, Jack Goldsmith, Debra Livingston, John McGinnis, Jonathan Molot, Henry Paul Monaghan, Frederick Schauer, Matthew Stephenson, and John Yoo for valuable comments. 70

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