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Hastings Constitutional Law Quarterly

Authors

Brendan Selby

Abstract

The most complete and sophisticated justification for a strong form of textualism is grounded in the need to preserve legislative compromise. I call this justification the "Bargaining Argument." Its primary expositor is Professor John Manning, the leading academic textualist. The thrust of the Bargaining Argument is that, because express provisions of the Constitution evince an intent to give political minorities the right to insist upon compromise as the price of assent, courts should read the phrase "the judicial power" in Article III as prescribing an interpretive method that furthers this intent. While the general inference concerning minority rights is sound, textualists carry it too far. Strong textualism holds that courts must presume compromise even where there is no specific evidence of one. But textualists have not adequately explained why, if the Constitution already gives political minorities so much power through express provisions, it should be read as bestowing a separate and additional power by implication. Nor does the argument adequately take into account the apparent constitutional preference for legislative transparency and open debate. As a result, textualism privileges "hidden" legislative compromise without sufficient justification. In contrast to this approach, I argue that courts acting as faithful agents may appropriately force lawmakers to either disclose a legislative compromise that creates statutory incoherence or risk having the court smooth out the plain language in light of strong contrary indications of legislative intent.

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