John F. Manning, Textualism and Legislative Intent, 91 Va. L. Rev. 419 (2005).
Abstract: This essay examines the contention that, contrary to standard textualist rhetoric of intent skepticism, textualists do care about legislative intent. This essay argues that the validity of that contention, as pressed by Professor Caleb Nelson, depends on the sense in which one describes legislative intent. In any system predicated on legislative supremacy, a faithful agent will of course seek the legislature's intended meaning at some level, and modern textualists situate themselves in that tradition. However, contrary to traditional intentionalists, leading textualists do not believe that the legislative majority as a whole possesses a subjective intention about the words it adopts. Indeed, to suggest that textualists practice intentionalism by other means is to understate their central belief that the cumbersome, chaotic, path-dependent, and opaque legislative process precludes identification of any “actual” or “genuine” legislative intent. Instead, textualists seek an “objectified intent” — the import that a reasonable person conversant with applicable social and linguistic conventions would attach to the enacted words. This essay also challenges Professor Nelson’s further claim that textualism is best explained by a preference for rules over standards. Although textualists may generally prefer rules to standards, this essay suggests that the key to understanding textualism is not such a preference. Rather, it argues that textualism, properly understood, rests on a straightforward conviction that faithful agents must treat rules as rules and standards as standards. Otherwise, legislators will have a difficult time expressing their compromises through the level of generality at which they articulate their policies.