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Primus on the Limits of Intepretivism

By Lawrence Solum

pRichard Primus (University of Michigan Law School) has posted a href=http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1318640Limits of Interpretivism/a (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN.nbsp; Here is the abstract:/pblockquotepAs a matter of history, the term quot;interpretivismquot; was current only for a short time in the 1970s and has since been largely replaced by the term quot;textualism.quot; But quot;interpretivismquot; still survives, partly as a matter of rhetoric. This paper responds to the contention of one self-described interpretivist (Justice Stephen Markman of the Michigan Supreme Court) that interpretivism is a strategy for constitutional interpretation that follows the constitutional text, respects original meanings, establishes known and stable rules in advance of particular cases, and keeps judges within their traditional role. The paper argues that the foregoing goals are regularly in tension with one another. In the rhetoric of judicial politics, it is common for one side to claim to be doing all of these things while the other abandons them all. In reality, all judges must frequently compromise some of these aims to better achieve the others, whether consciously or otherwise./p/blockquotepspan style=color: #0000ff;strongAnd from the text:/strong/span/pblockquotepOriginalism also has an uneasy relationship with traditional? ism as a matter of jurisprudential method. A method of judgingnbsp; is traditional if it calls on judges to decide cases in the waysnbsp; that were dominant among their predecessors. On that under? standing, originalism is less traditional than some of its chiefnbsp; rivals. In America, the most traditional form of jurisprudence? the form that has dominated among judges through the genera? tions, and the form that each new generation of entrants intonbsp; the legal profession learns as it is inducted into the culture ofnbsp; the guild?is not originalism but rather common?law judging.nbsp; The leading spokesperson for this point is Justice Scalia, whonbsp; regardsnbsp; common?lawnbsp; judgingnbsp; asnbsp; thenbsp; foilnbsp; fornbsp; originalism.45nbsp; Originalism, Scalia explains, requires that judges overcome ournbsp; common?law traditions, by which the judge is partly a policy? maker and not just the agent of the legislature. That overcoming is a departure from tradition, perhaps even a revolutionarynbsp; one. Originalism may or may not be a better theory of judgingnbsp; than the one the common law provides, but it is not more traditional.nbsp; /p p This is not to say that originalist judging is foreign to ournbsp; traditions. American judges have long included considerationsnbsp; of original meaning among various other kinds of jurispruden? tial methods when deciding cases, especially when the casesnbsp; arise under constitutional or statutory authority. Consideringnbsp; original meanings as one of several sources of law is accordingly a traditional practice in constitutional and statutory cases.nbsp; But traditional jurisprudence in such cases does not rely onnbsp; original meaning, or on text, to the exclusion of other sources ofnbsp; law. Even in constitutional and statutory cases, judges havenbsp; also long engaged in many other forms of reasoning, includingnbsp; some to which Justice Markman seems quite opposed. Makingnbsp; arguments about James Madison is indeed a traditional element of American constitutional law, but so is making arguments about justice./p/blockquotepstrongspan style=color: #0000ff;Thi/spanspan style=color: #0000ff;s short and illuminating essay is highly recommended./span/strong/p

Full post as published by Legal Theory Blog on December 22, 2008 (boomark / email).