Limits of Interpretivism

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. I. 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. …