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John F. Manning, Second-Generation Textualism, 98 Calif. L. Rev. 1287 (2010).

Abstract: This essay argues that modern textualism developed in two phases. First-generation textualism was rooted in the skeptical premises of public choice theory. Early textualism, for example, stressed that legislative history does not reliably represent the views of the median voter and that reliance on legislative history risks giving excessive weight to the preferences of concentrated interest groups. First-generation textualism also argued, more generally, that the legislative process is too chaotic, too path dependent, and too fraught with strategic behavior to yield a meaningful “legislative intent” on any significant interpretive question. Although rooted in a fairly negative view of the legislative process, these claims had a lot of intuitive “pop.” After the publication of a number of broad critiques of the empirical basis for public choice theory, a second-generation textualism emerged. Second-generation textualism argues that lawmaking inevitably involves compromise; that compromise sometimes requires splitting the difference; and that courts risk upsetting a complex bargain among legislative stakeholders if judges rewrite a clear but messy statute to make it more congruent with some asserted background purpose. Simply put, when a statute speaks unambiguously, judges presume that Congress chose its words for a reason; to assume otherwise would be to undercut Congress's ability to use semantic meaning to express and record its agreed-upon outcomes. This essay argues that second-generation textualism offers a more affirmative and more appealing basis for textualism. Rather than stressing skeptical empirical claims about the (un)reliability of legislative history and the chaos of the legislative process, second-generation textualism features more conceptual claims about the crucial role that legislative compromise plays in our constitutional system. Perhaps in part because this approach does not depend as much upon negative assumptions about interest group manipulation or legislative chaos, it has gained far more traction with the Court as a whole than did first-generation textualism.