Textualism and Legislative Intent

• Published in: Virginia law review 2005-04, Vol.91 (2), p.419-450
• Main Author: Manning, John F.
• Format: Article
• Language: English
• Subjects: Academic achievement; Delegation of authority; Education reform; Fees; Industrialized nations; Intentionalism; Judges; Law; Learning; Legal research; Legislation; Legislators; Litigation; State court decisions; Statutory interpretation; Statutory law; Students; Supreme Court decisions; Teachers; Textualism; Words
• ISSN: 0042-6601; 1942-9967

For many years, the Supreme Court practiced a form of intentionalism that presupposed that judges could meaningfully identify policy judgments that Congress "intended" but had not adequately expressed. Under that assumption, the Court felt free to supplement vague statutory expressions with the contents of internal legislative history and, more importantly, to correct the inevitable problems of statutory fit without perceiving itself to have violated the constitutional premises of legislative supremacy. The assumptions that modern textualists bring to understanding the legislative process make those practices harder to sustain. The legislative process is untidy and opaque; it gives those with intense and even outlying preferences numerous opportunities to slow or stop legislation and to insist upon compromise as the price of assent. The precise wording of any given statute may have been, for unknowable reasons, essential to its passage. Thus, efforts to augment or vary the text in the name of serving a genuine but unexpressed legislative intent risks displacing whatever bargain was actually reached through the complex and path-dependent legislative process. That set of legislative process assumptions not only defines modern textualism, but also makes it qualitatively different from the classical intentionalist tradition that has long dominated the Court's approach to statutes.