A response to Professor Primus.

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. (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.

III. 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 responsible opinion, ... [or] the dignity of full membership in society." (31) What each of these and countless other alternative standards have in common, however, is that they purport to authorize judges to look outside the Constitution, and the processes created by the Constitution, to establish a "law" to be interpreted. As such, they implicitly share a rejection of a belief in popular sovereignty. Under each of these standards, a judge would be authorized to uphold or strike down a law, not because "We the People" so required in our law or Constitution, but because the judge applied some form of "higher law"--a higher law that did not ultimately derive its legitimacy from the consent of the people. (32)

What exactly is it that prevents these factors, these standardless standards, from varying on a case-by-case basis, sometimes invoked and sometimes not? Further, what prevents them from being balanced differently from case to case, trumping or outweighing the text of the law and competing factors, as the court arbitrarily deems fit? Are there any interpretivist tools, or "sources of the law," that Professor Primus views as consistently relevant and appropriate, or consistently irrelevant and inappropriate, to the exercise of the judicial power? Are there any "rules," or consistent standards of interpretation, or do these merely manifest themselves on a case-by-case basis, sporadically to be summoned by the court as the needs of the moment require? As I stated during the Symposium,

   [I]t cannot be sufficient for a judge to assert in one case that
   he is relying on legislative history because whatever is said
   in a Senate report really ought to be dispositive concerning
   the meaning of a statute, and in the next case assert that he is
   following a rule that we do not look to legislative history in
   those circumstances. [Certainly], you can follow a "rule" in
   every case, but ... what is most important is the consistency
   with which a rule is followed. Any judge can concoct a
   "rule" after the fact. (33)

Under Professor Primus's approach toward interpretation, how are real-world litigants to be assured before the fact that they will be accorded equal justice under the law without the judge placing a thumb on the scale because of his predispositions or sympathies? A critical strength of an interpretivist jurisprudence is that a reasonably clear rule of decision making is established before the fact: utilizing traditional tools, including dictionaries, ancient maxims of construction, rules of grammar, and techniques by which ordinary people attempt to make comprehensible what they are reading. (34) Doubtless, it is much easier to divine the "law" when a judge has largely unchecked rein to invoke innovative and creative factors as the case warrants. The virtue of interpretivism is that it sets forth a standard for determining the propriety of such outside sources, namely whether they contribute to understanding the original meaning of the legal text in dispute. Professor Primus's standard for interpretation is akin to a "totality of circumstances" test in which the universe of available evidence is defined, but in which the ultimate question to be posed in assessing such evidence is never quite explained. Professor Primus is correct in his recognition that there is good interpretivism and there is bad interpretivism. (35) This is true of any operative judicial philosophy. Yet, with all of its imperfections, interpretivism is the only judicial philosophy that has as its touchstone that which has been enacted by the people's representatives. It is the only judicial philosophy that establishes an unchanging standard for exercising the judicial power.

IV. THE SLIPPERY SLOPE 

My description of noninterpretivist jurisprudence is only "misleading" if misleading characterizations of what I have said are credited. To be clear, I do not view adherents of noninterpretivist philosophies as "renegade[s]," (36) and I do not say that they "make up" the law. (37) Rather, although employing the words of the law as a starting point, noninterpretivist judges are too often insufficiently disciplined in employing these same words as an ending point. They believe that they have more discretion, more flexibility to "improve" the law, to fill in its "gaps," to render the law more "consistent" and "rational," and generally to produce more "pleasant" results, at least from the judge's own perspective. These judges have increasingly deployed a number of subtle rhetorical crutches to avoid the textual imperatives of the law--broad reliance upon "legislative history," the "balancing" of allegedly competing provisions of the law, invoking the "spirit" of the law, indulging in an unmoored application of "equity," articulating the necessities of "public policy," and prematurely identifying textual "ambiguities," to name a few of the most common. (38) It is indeed the rare decision, however, in which judges simply ignore the law in pursuit of their own policy preferences, although Justice Brennan's opinions in Weber (39) and Furman (40) come to mind as illustrations to the contrary. (41) Although my perspective may appear misleading to one who seems uncertain whether there is an ongoing judicial debate at all, (42) to one who believes otherwise, as I do, and who sees the debate as integral to the future of our constitutional system, these descriptions of its lines of division are reasonably measured and nuanced. (43) In any event, Professor Primus does not suggest any alternative characterization of the debate. (44)

V. DEFENSE OF MICHIGAN CITIZENS

Concerning Michigan Citizens for Water Conservation v. Nestle Waters, (45) an opinion Professor Primus criticizes, (46) there is no question that the opinion represents an appropriate and reasonable exercise in interpretation. The principal question presented was whether the "judicial power" set forth in the Michigan Constitution, like that in the Federal Constitution in connection with "Cases" and "Controversies," (47) required for its exercise that a plaintiff possess standing--a particularized interest in a dispute distinct from that of citizens generally. (48) Relying heavily upon National Wildlife Federation v. Cleveland Cliffs Iron Co., (49) a case decided several years earlier, the court concluded that Michigan's "judicial power" required standing as a precondition. (50) Between them, Michigan Citizens and National Wildlife Federation looked to other relevant provisions of the Michigan Constitution, (51) in particular those pertaining to the "separation of powers" and stating that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided by this constitution." (52) They then assessed the consequences for this separation of powers of allowing the "judicial power" to be invoked absent standing (53) and reviewed constitutional treatises and the Federalist Papers pertaining to the meaning of the "judicial power." (54) In addition, they considered historical practices in Michigan concerning the preconditions for the exercise of the judicial power" (55) and compared analogous United States Supreme Court precedents while taking into consideration differences in language between the Michigan and United States Constitutions. (56) Finally, they sought "to understand the intentions of those who ratified" the judicial article of the Michigan Constitution. (57) My point is not that reasonable people could not quarrel with the court's conclusions in Michigan Citizens or National Wildlife Federation, but merely that it undertook in a reasonably conscientious manner to consider relevant and appropriate evidence in an effort to discern the meaning of Michigan's "judicial power." In contrast, by summarily concluding that broad deference was owed to the state legislature in its nullification of standing, (58) the dissenting justices in these cases did not consider similarly relevant and appropriate evidence as to the meaning of this term.

VI. COMPLEXITY OF CONSTITUTIONAL INTERPRETATION

That originalism, as Professor Primus suggests, has a particular appeal to those who are "angry" (59) is an analysis about which the less said the better. He also suggests that the basic propositions of originalism are dubious. (60) I observe merely that the Constitution is a document that was written for those in whose name it was cast: "We the People." It is a relatively succinct document and it is in most respects remarkably straightforward. With only a few exceptions, there is an absence of legalese or technical terms. Although the contemporary constitutional debate has focused on several broad phrases of the Constitution such as "due process" and "equal protection," the greater part of this document specifies, for example, that a member of the House of Representatives must be twenty-five years of age, seven years a citizen, and an inhabitant of the state from which he is chosen, (61) or that a bill becomes a law when approved by both Houses and signed by the President. (62) One willing to invest just a bit of time in understanding our Constitution need only read it, or, better yet, peruse the Federalist Papers to see what Madison, Hamilton, and Jay had to say about its provisions to a popular audience in the late eighteenth century.

The Constitution was never designed to be the exclusive preserve of judges and constitutional-law professors, seemingly determined to layer its provisions with increasingly "subtle" and "nuanced" interpretations. What most accounts for the "complexity" of our present Constitution is not, by and large, the language of its Framers, but rather the modern judicial penchant for concocting new "sources of the law," for creating out of whole cloth cumbersome multipart "tests," for disregarding the Framers' original understanding as the determinant of the law's meaning, for dismantling traditional barriers and preconditions to the exercise of the judicial power, for deconstructive "interpretations" of relatively straightforward terms and phrases, and for the now commonly accepted vision of judges as the "adult supervisors" for society, empowered generally to engage in the substantive review of legislative enactments. Thus, the complexity in the law Professor Primus correctly identifies (63) is not the inexorable result of a neutral constitutional jurisprudence, but rather is in significant part a function of the longstanding predominance of one side in the contemporary judicial debate.

VII. THE DEBATE SUMMARIZED

Finally, it remains unclear what Professor Primus's exact position is concerning the contemporary judicial debate to which I refer in my remarks. (64) Does he not believe there is such a debate? His own remarks suggest that one exists. (65) If so, given his rejection of my own description, how would he define this debate? On the United States Supreme Court, as well as on the Michigan Supreme Court, there are regular divisions among the Justices. What accounts for these? Why are Justices Scalia and Thomas so regularly aligned in opposition to Justices Breyer and Ginsburg? Is this a function of differing interpretivist premises, and, if so, what are these? Are Justices Scalia and Thomas sincere in their interpretations? Or does Professor Primus believe that all judges are merely engaging in "politics by another name," a jurisprudential subterfuge by which they can justify and rationalize their own political preferences? Professor Primus dismisses my characterizations of what I view as a critical public debate, but he does not say what he himself believes.

There is a genuine ongoing debate, (66) and it is important for those engaged in this debate as "interpretivists" or "originalists,"--especially on the state level where judicial elections are a reality--to understand that cases embracing this philosophy will often be viewed askance by the media. As a consequence, "[t]here is simply much that remains to be done by organizations such as the Federalist Society and by interpretivist judges themselves to better and more effectively communicate more effectively the nature of the judicial role and the parameters of the present judicial debate." (67)

(1.) Pete Williams was the third participant on this panel because of his long-time experience as an NBC analyst in covering the judiciary.

(2.) Stephen J. Markman, An Interpretivist Judge and the Media, 32 HARV. J.L. & PUB. POL'Y 149 (2009).

(3.) Richard Primus, Limits of Interpretivism, 32 HARV. J.L. & PUB. POL'Y 159, 159 (2009).

(4.) Id. at 160.

(5.) Id. at 164-72.

(6.) See Markman, supra note 2, at 154-55.

(7.) Primus, supra note 3, at 160.

(8.) See, e.g., Louis W. Hensler III, The Recurring Constitutional Convention: Therapy for a Democratic Constitutional Republic Paralyzed by Hypocrisy, 7 TEX. REV. L. & POL. 263, 271 (2003) ("The chief constitutional debate over the past few decades has been between two schools of 'interpretation' called, among other things, originalism, interpretivism, or textualism on the one hand; and 'nonoriginalism,' 'noninterpretivism,' 'pragmatism,' or 'extra-textualism' on the other.").

(9.) See BLACK'S LAW DICTIONARY 838 (8th ed. 2004) ("[I]nterpretivism. A doctrine of constitutional interpretation holding that judges must follow norms or values expressly stated or implied in the language of the Constitution.").

(10.) See id. at 1462 ("[S]trict constructionism.... The doctrinal view of judicial construction holding that judges should interpret a document or statute ... according to its literal terms, without looking to other sources to ascertain the meaning.--Also termed ... textualism.").

(11.) But see id. at 1133 ("[O]riginalism.... The theory that the U.S. Constitution should be interpreted according to the intent of those who drafted and adopted it.").

(12.) See e.g., Frank H. Easterbrook, Text, History, and Structure in Statutory Interpretation, 17 HARV. J.L. & PUB. POL'Y 61, 67 (1994) ("[S]tatutory text and structure, as opposed to legislative history and intent (actual or imputed), supply the proper foundation for [statutory] meaning.").

(13.) See Primus, supra note 3, at 161.

(14.) Nevertheless, it is virtually certain that judges whose threshold inquiry focuses upon what would constitute good "public policy," or a "just" result, will tend to disagree on a far more regular basis than judges whose threshold inquiry focuses upon the more mundane question of what is meant by the actual words of the law.

(15.) Examples include expressio unius est exclusio alterius (the expression of one thing suggests the exclusion of others); noscitur a sociis (a word or phrase is given meaning by its context or setting); and ejusdem generis (where a general term follows a series of specific terms, the general term is interpreted to include only things of the same kind, class, character, or nature as those specifically enumerated).

(16.) Markman, supra note 2, at 149.

(17.) Primus, supra note 3, at 173.

(18.) See id. at 173-75.

(19.) Markman, supra note 2, at 151.

(20.) See, e.g., JOHNATHAN O'NEILL, ORIGINALISM IN AMERICAN LAW AND POLITICS: A CONSTITUTIONAL HISTORY 13-28 (2005) (tracing the "traditional approach" of applying "textual originalism" in interpreting constitutional and statutory text from the writings of Blackstone to the Lochner era).

(21.) See Primus, supra note 3, at 161.

(22.) 5 U.S. (1 Cranch) 137 (1803).

(23.) Id. at 177.

(24.) See OLIVER WENDELL HOLMES, The Theory of Legal Interpretation, in COLLECTED LEGAL PAPERS 203, 204 (1920) ("Is this trying to discover the particular intent of the individual, to get into his mind and to bend what he said to what he wanted? ... We are after a different thing....

[W]e ask, not what this man meant, but what those words would mean in the mouth of a normal speaker of English, using them in the circumstances in which they were used, and it is to the end of answering this last question that we let in evidence as to what the circumstances were."); JOSEPH STORY, COMMENTARIES ON THE CONSTITUTION OF THE UNITED STATES 135, [section] 181 (Carolina Academic Press 1987) (1833) ("The first and fundamental rule in the interpretation of all instruments is, to construe them according to the sense of the terms, and the intention of the parties.").

(25.) See Markman, supra note 2, at 149-50.

(26.) Primus, supra note 3, at 163.

(27.) Id. at 163-64.

(28.) Id. at 162 ("When they reason about principles of justice, therefore, Dworkinians are interpreting the law as they understand law."). Needless to say, "principles of justice" are to be sharply distinguished from "principles of justice under law." The former seems largely defined by the predilections of individual judges, the latter by the commands of the written law established by constitutional processes. There are as many "principles of justice" as there are judges and it is the great judicial temptation to confuse these principles with the law that a judge takes an oath to uphold.

(29.) Id.

(30.) Id.

(31.) The Performance of the Reagan Administration in Nominating Women and Minorities to the Federal Bench: Hearing Before the S. Comm. on the Judiciary, 100th Cong. 53 (1988) (statement of Stephen J. Markman, Ass't Att'y Gen. of the United States).

(32.) Cf. STEPHEN BREYER, ACTIVE LIBERTY: INTERPRETING OUR DEMOCRATIC CONSTITUTION (2005) (advocating interpreting text with an eye toward practical consequences and choosing interpretations that will maximize "active liberty," the people's ability to govern themselves and participate in the functioning of their political culture). But Justice Breyer's approach arguably disregards the past will of the people in a presumed effort to enhance its future exercise.

(33.) Stephen J. Markman, Remarks at the Twenty-Seventh Annual National Federalist Society Student Symposium: An Originalist Judge and the Media (Mar. 8, 2008) (transcript on file with the Harvard Journal of Law & Public Policy).

(34.) See Markman, supra note 2, at 153-55.

(35.) See Primus, supra note 3, at 162-63.

(36.) Id. at 161.

(37.) Id. at 163; see also id. at 160.

(38.) See Stephen J. Markman, Clarifying "Extremism," NAT'L REV. ONLINE, Sept. 19, 2005, http://www.nationalreview.com/comment/markman200509190840.asp.

(39.) United Steelworkers of Am. v. Weber, 443 U.S. 193 (1979).

(40.) Furman v. Georgia, 408 U.S. 238 (1972).

(41.) During one judicial nomination hearing before the Senate Judiciary Committee, the nominee (subsequently confirmed and still sitting on the bench today) was asked by a Senator, "If a decision in a particular case was required by law or statute and yet that offended your conscience, what would you do in that situation?" The nominee answered, "Senator, I have to be honest with you. If I was faced with a situation like that and it ran against my conscience, I would follow my conscience." The nominee went on to explain the standards with which he would replace the law of the land by his conscience:

   I was born and raised in this country, and I believe that I am
   steeped in its traditions, its mores, its beliefs, and its
   philosophies: and if I felt strongly in a situation like that, I
   feel that it would be the product of my very being and upbringing.
   I would follow my conscience.

Selection and Confirmation of Federal Judges, Part 4: Confirmation Hearing on Harry Pregerson and Arthur L. Alacorn Before the S. Comm. on the Judiciary, 96th Cong. 450 (1979) (statements of Sen. Alan Simpson, Member, S. Comm. on the Judiciary, and Harry Pregerson, U.S. Dist. J.). To my mind, for a judge to render decisions according to his or her conscience rather than the law is itself unconscionable.

(42.) See Primus, supra note 3, at 160.

(43.) See Rowland v. Washtenaw County Rd. Comm'n, 731 N.W.2d 41 (Mich. 2007), for a partial listing of cases decided by the Michigan Supreme Court over the past decade in which the clear direction of the text of the law was not followed by the dissenting justices.

(44.) See Primus, supra note 3, at 177.

(45.) 737 N.W.2d 447 (Mich. 2007).

(46.) See Primus, supra note 3, at 164-72.

(47.) U.S. CONST. art. III, [section] 2, d. 1.

(48.) See Mich. Citizens, 737 N.W.2d at 449.

(49.) 684 N.W.2d 800 (Mich. 2004).

(50.) Mich. Citizens, 737 N.W.2d at 453-54.

(51.) See id. at 453; Nat'l Wildlife Fed'n, 684 N.W.2d at 806-14.

(52.) MICH. CONST. art. III, [section] 2.

(53.) Mich. Citizens, 737 N.W.2d at 453; Nat'l Wildlife Fed'n, 684 N.W.2d at 807-10, 814.

(54.) See Nat'l Wildlife Fed'n, 684 N.W.2d at 806-09, 813.

(55.) See Mich. Citizens, 737 N.W.2d at 453-63; Nat'l Wildlife Fed'n, 684 N.W.2d at 805-15.

(56.) See Mich. Citizens, 737 N.W.2d at 453-63; Nat'l Wildlife Fed'n, 684 N.W.2d at 805-15.

(57.) Mich. Citizens, 737 N.W.2d at 453; Nat'l Wildlife Fed'n, 684 N.W.2d at 816-17.

(58.) See, e.g., Mich. Citizens, 737 N.W.2d at 467 (Weaver, J., dissenting).

(59.) Primus, supra note 3, at 177.

(60.) Id. at 176.

(61.) U.S. CONST. art. 1, [section] 2, cl. 2.

(62.) U.S. CONST. art. 1, [section] 7, cl. 2.

(63.) See Primus, supra note 3, at 160.

(64.) See Markman, supra note 2, at 149.

(65.) See Primus, supra note 3, at 177.

(66.) See, e.g., Markman, supra note 2, at 149.

(67.) Id. at 158.

STEPHEN J. MARKMAN, Justice, Michigan Supreme Court; Judge, Michigan Court of Appeals, 1995-99; U.S. Attorney, Eastern District of Michigan, 1989-93; Assistant Attorney General of the United States, 1985-89.