A Response to Professor Primus

By Markman, Stephen J. | Harvard Journal of Law & Public Policy, Winter 2009 | Go to article overview

A Response to Professor Primus


Markman, Stephen J., Harvard Journal of Law & Public Policy


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.

I. 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)

II. "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. …

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