Limits of Interpretivism
University of Michigan Law School
December 20, 2008
Harvard Journal of Law and Public Policy, Forthcoming
U of Michigan Public Law Working Paper No. 137
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: one who calls himself an "interpretivist" implies that what distinguishes him from others who see things differently is that he "interprets" the law while they do something else, and presumably something less legitimate. 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, a theorist or a judge sometimes claims to be doing all of these things - and thus "interpreting" the Constitution - while theorists or judges who see things differently do something other than (and presumably less legitimate than) "interpreting" the Constitution. In reality, all judges must frequently compromise some of these aims to better achieve the others, whether consciously or otherwise.
Number of Pages in PDF File: 20Accepted Paper Series
Date posted: December 21, 2008 ; Last revised: February 3, 2009
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