Richard Primus (University of Michigan Law School) has posted Limits of Interpretivism (Harvard Journal of Law and Public Policy, Forthcoming) on SSRN. Here is the abstract:
As a matter of history, the term "interpretivism" was current only for a short time in the 1970s and has since been largely replaced by the term "textualism." But "interpretivism" 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.
And from the text:
Originalism also has an uneasy relationship with traditional‐ ism as a matter of jurisprudential method. A method of judging is traditional if it calls on judges to decide cases in the ways that were dominant among their predecessors. On that under‐ standing, originalism is less traditional than some of its chief 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 into the legal profession learns as it is inducted into the culture of the guild—is not originalism but rather common‐law judging. The leading spokesperson for this point is Justice Scalia, who regards common‐law judging as the foil for originalism.45 Originalism, Scalia explains, requires that judges overcome our 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 revolutionary one. Originalism may or may not be a better theory of judging than the one the common law provides, but it is not more traditional.
This is not to say that originalist judging is foreign to our traditions. American judges have long included considerations of original meaning among various other kinds of jurispruden‐ tial methods when deciding cases, especially when the cases arise under constitutional or statutory authority. Considering original meanings as one of several sources of law is accordingly a traditional practice in constitutional and statutory cases. But traditional jurisprudence in such cases does not rely on original meaning, or on text, to the exclusion of other sources of law. Even in constitutional and statutory cases, judges have also long engaged in many other forms of reasoning, including some to which Justice Markman seems quite opposed. Making arguments about James Madison is indeed a traditional element of American constitutional law, but so is making arguments about justice.
This short and illuminating essay is highly recommended.
