Limits of interpretivism

Harvard Journal of Law and Public Policy

Volumn 32, Issue 1, 2009, Pages 159-177

  Primus, Richard ^a  

^a UNIVERSITY OF MICHIGAN   (United States)

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[No Author keywords available]

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EID: 63849312562     PISSN: 01934872     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Conference Paper

References (59)

1. See Stephen J. Markman, An Interpretivist Judge and the Media, 32 HARV. J.L. & PUB. POL'Y 149, 154 (2009).
2. See Stephen J. Markman, A Response to Professor Primus, 32 HARV. J.L. & PUB. POL'Y 179, 180 (2009).
3. The same is true of Justice Markman's contention that the judges on his side of this divide are at a disadvantage in the court of public opinion. According to Justice Markman, the public learns about judicial decisions through the media, and the media tend to describe the outcomes of cases without explaining the reasoning, so when the text of the law requires an unpopular result, the textualist judge will be blamed for making an unpopular decision rather than appreciated for following the rules. See Markman, supra note 1, at 155-57. The intuition behind Justice Markman's concern is easy to follow, but it needs to be considered critically. For one thing, it is not clear that judges who keep strictly to the text of enacted law are the ones most likely to reach unpopular results - or if they are, something might be badly wrong with the premise that enacted law reflects the preferences of the public. Moreover, one paradigmatic foil for the textualist judge is the activist judge who foists his own values on an unwilling citizenry, and there is good reason to expect that activist judge to face a great deal of public criticism: By hypothesis, that judge imposes unpopular results. That said, these thoughts about which kinds of judges are the targets of the most criticism are speculative, and speculation is not a good way to settle an empirical question. An answer to the question of which judges face the most public criticism should come from data, and Justice Markman offers no data to support the claim that he and his methodological kind are the ones who suffer most. I would not be surprised to learn that each judge believes that his kind of judge takes more incoming fire than other kinds of judges do. Judges are people, after all, and like other people they exhibit salience biases. Criticism of me is always more memorable - to me - than criticism of the other guy. And criticism of me is also more likely to be unjustified - in my view - than criticism of the other guy. It would be natural, therefore, for judges of each methodological school to think themselves subject to more criticism than other kinds of judges are.
4. See id. at 151.
5. See Thomas C. Grey, Do We Have an Unwritten Constitution?, 27 STAN. L. REV. 703, 703 (1975).
6. See JOHN HART ELY, DEMOCRACY AND DISTRUST: A THEORY OF JUDICIAL REVIEW 1 (1980).
7. See Christopher L. Eisgruber, Should Constitutional Judges be Philosophers?, in EXPLORING LAW'S EMPIRE: THE JURISPRUDENCE OF RONALD DWORKIN 5, 5 (Scott Hershovitz ed., 2006).
8. Thomas C. Grey, The Constitution as Scripture, 37 STAN. L. REV. 1, 1 (1984).
9. See id.;
10. see also Owen M. Fiss, Objectivity and Interpretation, 34 STAN. L. REV. 739, 743 (1982) (making an even stronger suggestion shortly before, writing that the theory known as " interpretivism" should actually be called "textual determinism").
11. A Westlaw search for the terms "interpretivist" and "textualist" in law review articles published since 2000 found more than eight times as many documents using the latter term as using the former.
12. See Grey, supra note 8.
13. I do not mean that judges never decide cases by reading the words. I mean only that there is no judge - or at least no judge in the American system - for whom reading the words is the only method of deciding cases.
14. 737 N.W.2d 447, 456 (Mich. 2007).
15. MICH. COMP. LAWS § 324.1701(1) (1995) ("The attorney general or any person may maintain an action in the circuit court having jurisdiction where the alleged violation occurred or is likely to occur for declaratory and equitable relief against any person for the protection of the air, water, and other natural resources and the public trust in these resources from pollution, impairment, or destruction.")
16. Markman, supra note 1, at 155-56 (citing Pat Shellenbarger, Milliken: Water ruling 'major setback': Former governor says decision destroys intention of state's Environmental Protection Act, GRAND RAPIDS PRESS, Aug. 5, 2007, at A1;
17. Editorial, Supreme Court turns State Environmental law on its ear, BAY CITY TIMES, Aug. 26, 2007, at 8A).
18. Markman, supra note 1, at 156.
19. MICH. CONST. art III, § 2.
20. MICH. CONST. art VI, § 1.
21. Mich. Citizens, 737 N.W.2d at 453.
22. U.S. CONST, amend. XIV, § 1.
23. See, e.g., Akhil Reed Amar, Foreword: The Document and the Doctrine, 114 HARV. L. REV. 26, 26-27 (2000) (laying out the contrast between textualist and doctrinalist approaches to constitutional interpretation).
24. See Markman, supra note 1, at 151.
25. Note, however, that this move sacrifices much of the transparency that is part of textualism's appeal. To whatever extent original meanings differ from the meanings that current competent readers of English understand, giving force to original meanings will sanction law that departs from what ordinary citizens might think the plain text requires.
26. Mich. Citizens, 737 N.W.2d at 453 (internal quotation marks omitted).
27. Id.
28. 405 US. 727 (1972).
29. 422 U.S. 490 (1975).
30. 504 US. 555 (1992).
31. 528 US. 167 (2000).
32. See, e.g., Thomas W. Merrill, Bork v. Burke, 19 HARV. J.L. & PUB. POL'Y 509, 510 (1995);
33. David A. Strauss, Originalism, Precedent, and Candor, 22 CONST. COMMENT. 299, 302 (2005).
34. See, e.g., Jack N. Rakove, Fidelity Through History (Or to It), 65 FORDHAM L. REV. 1587, 1597-99 (1997).
35. See Daniel A. Farber, The Rule of Law and the Law of Precedents, 90 MINN. L. REV. 1173, 1190 (2006).
36. 128 S. Ct. 2783 (2008).
37. 128 S. Ct. 2678 (2008).
38. 128 S. Ct. 2229 (2008).
39. 128 S. Ct. 1346 (2008).
40. If Justice Markman can say, "Were I to consider all appropriate reasons and authorities other than original meaning, I would vote to affirm, but when original meaning is added, I must vote to reverse," then he has supported his assertion that original meanings constrain his decisionmaking.
41. See, e.g., Parker v. District of Columbia, 478 F.3d 370, 389-90 (D.C. Cir. 2007);
42. Silveira v. Lockyer, 312 F.3d 1052, 1066 (9th Cir. 2002);
43. United States v. Emerson, 270 F.3d 203, 259-60 (5th Cir. 2001).
44. 128 S. Ct. 2783, 2821 (2008).
45. I do not mean to say that after Heller all Second Amendment issues are clearly settled. As everyone recognizes, Heller leaves many questions about the scope of Second Amendment rights to be worked out in future cases. I mean to say only that the threshold issue of whether the Second Amendment guarantees an individual right in the first place is settled by the holding of Heller.
46. Markman, supra note 1, at 151.
47. See Merrill, supra note 30, at 514-15.
48. He has not, quite. The facts here are stylized for purposes of the illustration.
49. U.S. CONST. art. II, § 3 ("He shall from time to time give to the Congress Information of the State of the Union . . . .").
50. 128 S. Ct. 1801, 1806-09, 1811 (2008).
51. See id. at 1823 (Kennedy, J., dissenting).
52. See Antonin Scalia, Common-Law Courts in a Civil-Law System: The Role of United States Federal Courts in Interpreting the Constitution and Laws, in A MATTER OF INTERPRETATION: FEDERAL COURTS AND THE LAW 3, 7 (Amy Gutmann ed., 1997).
53. See, e.g., Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 IND. L.J. 1, 4 (1971).
54. See RAOUL BERGER, GOVERNMENT BY JUDICIARY: THE TRANSFORMATION OF THE FOURTEENTH AMENDMENT 328-29, 403-05 (Liberty Fund 2d ed. 1997) (1977).
55. 347 U.S. 483 (1954).
56. 377 U.S. 533 (1964).
57. 372 US. 335 (1963).
58. 410 US. 113 (1973).
59. See Richard A. Primus, When Should Original Meanings Matter?, 107 MICH. L. REV. 165 (2008).