John F. Manning, Competing Presumptions About Statutory Coherence, 74 Fordham L. Rev. 2009 (2006).
Abstract: The tradition of strong purposivism assumes that legislation is a purposive act and that judges should interpret acts of Congress to implement the legislative purpose, even if doing so requires some deviation from the clear meaning of the enacted text. The basis for his position is that limited human foresight, imprecision in language, and constraints on legislative resources make it likely that a generally worded statute will not accurately capture legislative purposes or intentions across the varied of situations that lie ahead. Hence, if a statute's semantic detail produces an outcome that appears unreasonable in light of the law's background purpose, purposivists believe that respect for Congress requires fidelity to purpose rather than to the often-faulty wording of whatever text Congress happened to adopt. In contrast, textualism gives precedence to a statute's semantic meaning, when clear, and eschews reliance on legislative history or other indicia of background purpose to vary the conventional meaning of the text. Textualists believe that the legislative process favors compromise and that compromises are often complex, awkward, and even incoherent—making it dangerous for judges to smooth over the details of an agreed-upon text to make it more coherent with its perceived purpose. On that view, respect for Congress means accepting the meaning (when clear) of whatever text cleared the legislative process. This essay argues that purposivists assume that Congress thinks coherently but writes messily while textualists assume that Congress writes coherently but legislates messily. After considering each position in its most sympathetic light, the essay suggests that the textualists' presumption of untidy compromise fits more comfortably with legislative process assumptions derived from the constitutional structure. Both the Article I processes of bicameralism and presentment and the rules of procedure adopted by each House are designed, on balance, to make it hard to adopt statutes and easy for political minorities or outliers to insist upon compromise as the price of assent. By emphasizing the possibility that awkward statutory language may reflect an awkward but unseen legislative compromise, textualists seek to make it easier for Members of Congress to articulate and make stick potential compromises.