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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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