A response to professor primus

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 179-189

  Markman, Stephen J ^a  

^a Michigan Supreme Court ^*  (United States)

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EID: 63849118200     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (74)

1. Pete Williams was the third participant on this panel because of his long-time experience as an NBC analyst in covering the judiciary.
2. Stephen J. Markman, An Interpretivist Judge and the Media, 32 HARV. J.L. & PUB. POL'Y 149 (2009).
3. Richard Primus, Limits of Interpretivism, 32 HARV. J.L. & PUB. POL'Y 159, 159 (2009).
4. Id. at 160.
5. Id. at 164-72.
6. See Markman, supra note 2, at 154-55.
7. Primus, supra note 3, at 160.
8. See, e.g., Louis W. Hensler III, The Recurring Constitutional Convention: Therapy for a Democratic Constitutional Republic Paralyzed by Hypocrisy, 7 TEX. REV. L. & POL. 263, 271 (2003) ("The chief constitutional debate over the past few decades has been between two schools of 'interpretation' called, among other things, originalism, interpretivism, or textualism on the one hand; and 'nonoriginalism,' 'noninterpretivism,' 'pragmatism,' or 'extra-textualism' on the other.").
9. See BLACK'S LAW DICTIONARY 838 (8th ed. 2004) ("[I]nterpretivism. A doctrine of constitutional interpretation holding that judges must follow norms or values expressly stated or implied in the language of the Constitution.").
10. See id. at 1462 ("[S]trict constructionism . . . . The doctrinal view of judicial construction holding that judges should interpret a document or statute. . . according to its literal terms, without looking to other sources to ascertain the meaning. - Also termed... textualism.") .
11. But see id. at 1133 ("[O]riginalism. . . . The theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it.").
12. See e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 67 (1994) ("[S]tatutory text and structure, as opposed to legislative history and intent (actual or imputed), supply the proper foundation for [statutory] meaning.").
13. See Primus, supra note 3, at 161.
14. Nevertheless, it is virtually certain that judges whose threshold inquiry focuses upon what would constitute good "public policy," or a "just" result, will tend to disagree on a far more regular basis than judges whose threshold inquiry focuses upon the more mundane question of what is meant by the actual words of the law.
15. Examples include expressio unius est exclusio alterius (the expression of one thing suggests the exclusion of others);
16. noscitur a sociis (a word or phrase is given meaning by its context or setting); and ejusdem generis (where a general term follows a series of specific terms, the general term is interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated).
17. Markman, supra note 2, at 149.
18. Primus, supra note 3, at 173.
19. See id. at 173-75.
20. Markman, supra note 2, at 151.
21. See, e.g., JOHNATHAN O'NEILL, ORIGINALEM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY 13-28 (2005) (tracing the "traditional approach" of applying "textual originalism" in interpreting constitutional and statutory text from the writings of Blackstone to the Lochner era).
22. See Primus, supra note 3, at 161.
23. 5 U.S. (1 Cranch) 137 (1803).
24. Id. at 177.
25. See OLIVER WENDELL HOLMES, The Theory of Legal Interpretation, in COLLECTED LEGAL PAPERS 203, 204 (1920) ("Is this trying to discover the particular intent of the individual, to get into his mind and to bend what he said to what he wanted? . . . We are after a different thing . . . . [W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were.");
26. JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 135, § 181 (Carolina Academic Press 1987) (1833) ("The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.").
27. See Markman, supra note 2, at 149-50.
28. Primus, supra note 3, at 163.
29. Id. at 163-64.
30. Id. at 162 ("When they reason about principles of justice, therefore, Dworkinians are interpreting the law as they understand law."). Needless to say, "principles of justice" are to be sharply distinguished from "principles of justice under law." The former seems largely defined by the predilections of individual judges, the latter by the commands of the written law established by constitutional processes. There are as many "principles of justice" as there are judges and it is the great judicial temptation to confuse these principles with the law that a judge takes an oath to uphold.
31. Id.
32. Id.
33. The Performance of the Reagan Administration in Nominating Women and Minorities to the Federal Bench: Hearing Before the S. Comm. on the Judiciary, 100th Cong. 53 (1988) (statement of Stephen J. Markman, Ass't Att'y Gen. of the United States).
34. Cf. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005) (advocating interpreting text with an eye toward practical consequences and choosing interpretations that will maximize "active liberty," the people's ability to govern themselves and participate in the functioning of their political culture). But Justice Breyer's approach arguably disregards the past will of the people in a presumed effort to enhance its future exercise.
35. Stephen J. Markman, Remarks at the Twenty-Seventh Annual National Federalist Society Student Symposium: An Originalist Judge and the Media (Mar. 8, 2008) (transcript on file with the Harvard Journal of Law & Public Policy).
36. See Markman, supra note 2, at 153-55.
37. See Primus, supra note 3, at 162-63.
38. Id. at 161.
39. Id. at 163;
40. see also id. at 160.
41. See Stephen J. Markman, Clarifying "Extremism," NAT'L REV. ONLINE, Sept 19, 2005, http://www.nationalreview.com/comment/markman200509190840.asp.
42. United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979).
43. Furman v. Georgia, 408 U.S. 238 (1972).
44. During one judicial nomination hearing before the Senate Judiciary Committee, the nominee (subsequently confirmed and still sitting on the bench today) was asked by a Senator, "If a decision in a particular case was required by law or statute and yet that offended your conscience, what would you do in that situation?" The nominee answered, "Senator, I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience." The nominee went on to explain the standards with which he would replace the law of the land by his conscience: I was born and raised in this country, and I believe that I am steeped in its traditions, its mores, its beliefs, and its philosophies: and if I felt strongly in a situation like that, I feel that it would be the product of my very being and upbringing. I would follow my conscience. Selection and Confirmation of Federal Judges, Part 4: Confirmation Hearing on Harry Pregerson and Arthur L. Alacorn Before the S. Comm. on the Judiciary, 96th Cong. 450 (1979) (statements of Sen. Alan Simpson, Member, S. Comm. on the Judiciary, and Harry Pregerson, U.S. Dist. J.). To my mind, for a judge to render decisions according to his or her conscience rather than the law is itself unconscionable.
45. See Primus, supra note 3, at 160.
46. See Rowland v. Washtenaw County Rd. Comm'n, 731 N.W.2d 41 (Mich. 2007), for a partial listing of cases decided by the Michigan Supreme Court over the past decade in which the clear direction of the text of the law was not followed by the dissenting justices.
47. See Primus, supra note 3, at 177.
48. 737 N.W.2d 447 (Mich. 2007).
49. See Primus, supra note 3, at 164-72.
50. U.S. CONST, art. III, § 2, c1. 1.
51. See Mich. Citizens, 737 N.W.2d at 449.
52. 684 N.W.2d 800 (Mich. 2004).
53. Mich. Citizens, 737 N.W.2d at 453-54.
54. See id. at 453;
55. Nat'l Wildlife Fed'n, 684 N.W.2d at 806-14.
56. MICH. CONST. art. III. § 2.
57. Mich. Citizens, 737 N.W.2d at 453;
58. Nat'l Wildlife Fed'n, 684 N.W.2d at 807-10,814.
59. See Nat'l Wildlife Fed'n, 684 N.W.2d at 806-09, 813.
60. See Mich. Citizens, 737 N.W.2d at 453-63; Nat'l Wildlife Fed'n, 684 N.W.2d at 805-15.
61. See Mich. Citizens, 737 N.W.2d at 453-63;
62. Nat'l Wildlife Fed'n, 684 N.W.2d at 805-15.
63. Mich. Citizens, 737 N.W.2d at 453;
64. Nat'l Wildlife Fed'n, 684 N.W.2d at 816-17.
65. See, e.g., Mich. Citizens, 737 N.W.2d at 467 (Weaver, J., dissenting).
66. Primus, supra note 3, at 177.
67. Id. at 176.
68. U.S. CONST. art. 1, § 2, c1. 2.
69. U.S. CONST. art. 1, § 7, c1. 2.
70. See Primus, supra note 3, at 160.
71. See Markman, supra note 2, at 149.
72. See Primus, supra note 3, at 177.
73. See, e.g., Markman, supra note 2, at 149.
74. Id. at 158.