A response to Professor Primus.

• Author: Markman, Stephen J.
• Position: Article by Richard Primus in this issue, p. 159 - Twenty-Seventh Annual National Federalist Society Student Symposium

Professor Richard Primus and I participated on a panel before the National Federalist Society Student Symposium at the University of Michigan Law School concerning the media's coverage of the judiciary, (1) and my assigned remarks, reprinted in this Issue, were on the subject of An Interpretivist Judge and the Media. (2) Professor Primus has responded to the central thrust of my remarks only indirectly, instead focusing on questioning whether I am a participant in any great jurisprudential "struggle," (3) disputing my nomenclature in characterizing this "struggle," (4) and suggesting a lack of sincerity in my judicial beliefs, based upon his critique of a single decision of the Michigan Supreme Court. (5) As a result, even accepting the whole of his observations, nothing in them diminishes the thrust of my original remarks; namely that, for a variety of reasons, the media as an institution generally responds more negatively to an interpretivist jurisprudence than to alternative approaches to reading the law. (6) Nevertheless, because this relates to the National Federalist Society Student Symposium, and because discussions of judicial philosophy are never altogether outside the pale at such a venue, I will respond briefly to Professor Primus.

1. TERMS OF THE DEBATE

   I do not agree with Professor Primus's assertion that my various characterizations of the majority philosophy of the Michigan Supreme Court are incompatible. (7) There is nothing inconsistent with the terms "interpretivism," "textualism," and "originalism," and each, in my judgment, constitutes an adequate short-hand summary of the judicial philosophy of one of the sides in the contemporary debate. (8) "Interpretivism" summarizes a judicial philosophy in which the words of the law are controlling and generally dispositive as to the meaning of that law, (9) and "textualism" communicates essentially the same concept, although arguably making more explicit what exactly is being interpreted. (10) "Originalism," which is not my preferred term because of its potential ambiguity, is also essentially synonymous so long as it is understood to refer to the original meaning of the law and not to the original intention of the framers of that law, and so long as it is understood that such meaning is normally communicated by the actual text of the law. (11) The quest of the originalist judge is not to divine James Madison's or Edward Kennedy's hidden state of mind in authoring a provision of law, or even to assess their overtly expressed expectations, but rather to understand in context the language actually set forth in that law. (12)

   To achieve such an understanding is not always an easy task. As Professor Primus recognizes, (13) this process is more than a mechanical or rote exercise, and judges of this jurisprudential bent may often disagree in their conclusions. (14) Nonetheless, to engage in an interpretivist, textualist, or originalist construction of the law is to establish a law's actual language as the lodestar for giving it meaning, assessing the reasonable meanings of its words and phrases, viewing them in their surrounding context, considering the grammar and syntax of legal provisions, comparing the words and phrases of other laws, and applying longstanding judicial presumptions as to how various tensions within the law should be resolved. (15)

2. "TRADITIONAL" JURISPRUDENCE

   Professor Primus seems to misunderstand what I meant by my description of this jurisprudence as "traditional," (16) concluding I meant that, among the other descriptors, I additionally consider myself an adherent of "traditionalism." (17) Although I agree with his extended discussion of the tension between judicial reasoning grounded in Burkean tradition and interpretation based on the original meaning of the text, (18) this critique does not describe a tension in my own judicial philosophy. I described my jurisprudence as a "traditional judicial philosophy" (19) simply because virtually all judges in the American and Anglo-Saxon traditions historically accepted an interpretivist understanding of their responsibilities prior to the modern era. (20) Specific nomenclature aside, I do not believe, as Professor Primus does, (21) that such an approach to the law was first heralded in 1970s law review articles. Rather, such articles may have been timely only because, until shortly before those years, few judges would have understood that the process of judicial "interpretation" pertained to anything other than the text of the law. As Chief Justice Marshall stated in Marbury v. Madison (22) in 1803, it is the responsibility of the judge "to say what the law is," (23) rather than what it ought to be. This directive is as good an encapsulation of the interpretivist or originalist premise as there is. (24) Nevertheless, regardless of the terms one prefers to use in describing the majority philosophy on the Michigan Supreme Court, there is an ongoing debate in this country over the judicial role, (25) and, despite the necessary caveats and clarifications, most observers appear reasonably able to discern the contours of this debate.

3. INTERPRETIVISM AS A CHECK

   As is commonly the case with those who critique interpretivism, there is a great deal more critique in Professor Primus's response than there is articulation of what, in his judgment, constitutes the proper approach to carrying out the judicial power. Professor Primus suggests that it is "misleading," for example, for me to describe my judicial philosophy as "interpretivist." (26) Those who have staked out alternative positions, he assures us, are also engaged in interpretation, (27) yet "[t]hey have a different view from most textualists about the set of factors that determine what the law is." (28) Professor Primus never explains exactly what constitutes these sets of factors, but instead merely supplies several illustrations. (29) Dworkinians, for example, focus on "norms and morals." (30) Other legal theorists emphasize "deeply [e]mbedded cultural values, ... the well-being of our society, ... the settled weight of...