Limits of interpretivism.

• Author: Primus, Richard
• Position: Twenty-Seventh Annual National Federalist Society Student Symposium

INTRODUCTION I. INTERPRETIVISM AND TEXTUALISM II. TEXTUALISMAND RULES III. TEXTUALISM AND ORIGINALISM IV. ORIGINALISM AND CONSTRAINT V. ORIGINALISM AND TRADITION CONCLUSION INTRODUCTION

Justice Stephen Markman sits on the Supreme Court of my home state of Michigan. In that capacity, he says, he is involved in a struggle between two kinds of judging. On one side are judges like him. They follow the rules. On the other side are unconstrained judges who decide cases on the basis of what they think the law ought to be. (1) This picture is relatively simple, and Justice Markman apparently approves of its simplicity. (2) But matters may in fact be a good deal more complex. (3)

Justice Markman describes his own jurisprudence as textualist, originalist, interpretivist, and traditional. (4) To his credit, he does not insist on any of those labels as if the name were the most important thing. But he does profess to follow the texts of statutes and constitutions, to honor original meanings, to interpret the law rather than make it up, and generally to respect the traditions of American law and the traditional role of the judge. These are substantive claims, not just claims about labels. One problem with this set of claims, though, is that they often come into conflict with one another. Textualism, originalism, and traditional judging are not just different names for the same thing. They are different jurisprudential approaches, with different strengths and weaknesses. Often, a judge must choose among them. In what follows, I will show that one cannot be a rule-following judge simply by being a textualist and an originalist and a traditionalist, because those approaches to judging often point in different directions.

So if Justice Markman is not all of those things at once, he may be less of each of them than he imagines. Though he considers himself an originalist, it may be the case that he is not really looking for original meanings quite as much as he asserts. Though he considers himself a textualist, it may be the case that his judging is less a product of enacted legal texts than one might think.

It does not follow, of course, that Justice Markman is simply making things up, unconstrained by law. One would make that leap only if one believed that there are two choices in judging: either one is a textualist-originalist-interpretivist-traditional-rule-oriented judge, or else one is a renegade. But those are not the only choices.

1. INTERPRETIVISM AND TEXTUALISM

   Of the terms that Justice Markman uses to describe his jurisprudential theory, the two that are most compatible with each other are "interpretivist" and "textualist." These terms both name the idea that judges should decide constitutional and statutory cases by interpreting the words of the applicable constitutions and statutes. The difference between the terms is partly a matter of history and partly a matter of rhetoric.

   To oversimplify the history of constitutional discourse only slightly, "interpretivism" is what textualism was called between 1975 and 1984. Before then, the term "interpretivism" was not in use. In his 1975 article Do We Have an Unwritten Constitution?, Thomas Grey called the model of judging on which judges confine themselves to reading and interpreting the words of the written constitutional text "interpretive." (5) Five years later, in his book Democracy and Distrust, John Hart Ely adopted Grey's term. In Ely's canonical formulation, "interpretivism" is the view "that judges deciding constitutional issues should confine themselves to enforcing norms that are stated or clearly implicit in the written Constitution." (6) Interpretivism is not shallow literalism: the interpretivist knows that judges must often interpret the written text rather than always being able to apply it mechanically. But the thing to be interpreted--the source of law--is the words of the text. Grey's article made a splash, and Ely's book dominated the field, so people remembered the term.

   The trouble with this nomenclature, though, was that the word interpretivism does not name the distinctive commitment of the idea that it denoted. Nearly everyone thinks that judges are supposed to interpret the law. The question is whether the law that judges interpret is wholly contained in the text as opposed to residing in some combination of sources among which text might be one. Common-law judging is not about interpreting the words of texts, but it is very much about interpreting the law. Even avowedly anti-positivist Dworkinians are engaged in interpreting the law, rather than making up what the law should be as if from whole cloth. They have a different view from most textualists about the set of factors that determine what the law is. According to the Dworkinians, that set of factors can include norms and morals. But the Dworkinians regard the norms and morals that are among the determinants of law as being within the law as it is, not as factors external to the law. (7) When they reason about principles of justice, therefore, Dworkinians are interpreting the law as they understand law.

   In 1984, after due reflection, Grey confessed that "interpretivist" and "noninterpretivist" were not good names for the debate he had characterized with those labels. "We are all interpretivists," he wrote, and rightly so. "[T]he real arguments are not over whether judges should stick to interpreting, but over what they should interpret and what interpretive attitudes they should adopt." (8) To replace "interpretivist," therefore, Grey adopted the term "textualist," on the reasonable basis that the role of the written text is the crux of the relevant disagreement. (9) Constitutional discourse has generally followed this substitution of terms. We now speak of textualism, and the term "interpretivism" is rare, except as a throwback to the 1970s. (10)

   One possibility is that when Justice Markman describes himself as an "interpretivist" as well as a "textualist," he means to be comprehensive, or to indicate that it does not matter which of these terms is used to identify his approach. In the remainder of this Essay, I will generally proceed on that assumption. But there is also another possibility of which we should be aware. Instead of understanding "interpretivist" and "textualist" as two terms that have carried the same meaning at different points in history, we can understand them as terms with different rhetorical implications.

   If I call myself a textualist in the course of explaining how my jurisprudence differs from that of my colleagues, it is pretty clear that I mean to say that I value the text differently--indeed, more--than they do. If I call myself an interpretivist in the course of such an argument, the implication is that I place a higher value on interpretation. That implication is precisely why Grey repented his use of "interpretivist." (11) To imply that the people on the other side are not interpreting is by and large misleading. They, too, are interpreting, but they have a different understanding of the sources of law that are to be interpreted. As a matter of rhetoric, however, I can score points by implying that what my rivals are doing is something other than interpreting the law. If a judge is not interpreting the law when he decides a case, the audience's intuition will run, then he is making things up according to his own preferences. The alternative to interpretation in this framing is legislation, or activism, or some other form of unjustified judicial overreaching.

   When a judge calls himself an interpretivist in 2009, it is often hard to know whether he means to score these rhetorical points or whether he simply has not kept up with changes in the academic conversation. Perhaps one should give such a judge the benefit of the doubt. That said, Justice Markman's major substantive claim about his jurisprudence is that he is constrained by rules where other judges simply choose their desired outcomes. The charge that judges choose outcomes rather than following rules is quite close to the charge that those judges are making things up. In other words, the substance of Justice Markman's complaint about judges who do not share his approach aligns well with the rhetorical point that would be made by implying that those judges do something other than interpret the law.

   Almost no judge thinks that his job is to make up whatever he thinks the answer should be, regardless of the law. If noninterpretivism means freedom from the law, then American law features almost no noninterpretivist judging. But our legal system does involve a good deal of nontextualist judging. Judges regularly decide cases by methods other than reading the words of the relevant constitutional and statutory clauses and figuring out how those words bear on the question presented. Indeed, all judges decide many of the cases they see by methods other than reading the words of the relevant clauses. (12) Some judges, however, are reluctant to admit this reality. Perhaps for rhetorical reasons, or perhaps because they have not come to terms with the truth about their own jurisprudence, some judges speak as if their decisionmaking were simply a matter of reading the text even when it is not.

2. TEXTUALISM AND RULES

   Textualism promises transparency. The law, says the pure textualist, is the set of words that the lawmaking body adopted. Those words are written in publicly available places. It follows that ordinary citizens can read the law and call officials to account if the officials do not follow the law. In a democratic society that values the rule of law, these are powerful attractions for a legal theory.

   Sometimes, though, the impulse to hold officials to the transparent text of the law gives rise to unwarranted...