Conversations with members of the Harvard and Radcliffe Class of 1992.
Hosted by Will Bachman.

Episode: 87

Richard Primus, Constitutional Law Professor

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Show notes

Richard Primus initially had no idea what he wanted to do professionally after graduation, but eventually realized that he wanted to be a professor with interests in both law and political theory. He took HW Perry’s constitutional interpretation class and decided to pursue graduate school and political theory before going to law school. Richard decided to study political theory at Oxford with the idea of becoming a law professor. He found his studies there focused on the abstract nature of political theory at the time, which required abstract questions about justice, liberty, and government. Richard wanted to ask questions about Hobbes’s ideas and how he saw the world he lived in and the system in which he was operating, but this didn’t align with what his teachers at Oxford taught. His time at Oxford made it clear that he belonged in America, and he was excited to return home and attend Yale Law School where he confirmed his decision to become a law professor. His experience in England and Yale helped him understand the importance of being an American and the need for a diverse perspective on the world. He also learned about the challenges faced by students in law schools and the importance of a good professor in teaching.

 

Working in The Supreme Court

He spent four years in New Haven clerking for a federal judge and spent two years in Washington, DC, clerking for Justice Ginsburg at the US Supreme Court. Richard discusses his frustration with the US Supreme Court and goes on to explain how a great law school teaches students. He also talks about his time as a clerk on the US Court of Appeals, and what he learned about processes and how cases are approached. He goes on to talk about his time at the US Supreme Court, which was more personality-driven and focused on technical cases. He found that these cases were satisfying because they weren’t just about clashing ideologies. He later worked as a lawyer in DC before deciding to finally become a law professor. He was offered a position at the University of Michigan where he has taught for 23 years. 

 

Behind the Scenes at The Supreme Court

Richard shares insights gained while working in The Supreme Court, which is often seen as the least lawful court in the federal system, which can distort our perception of courts and law. However, when functioning well, it has a different function: statesmanship rather than rule application, which is essential when dealing with difficult cases where ideologies play a role and there are no easy answers.  It calls for the exercise of a different kind of judgment than is applied in other parts of the system. Trial judges must exercise judgment about witnesses’ credibility, litigation progress, and governance, whereas Supreme Court Justices need to exercise judgment about governance and how it functions, and how it negotiates among the various aspects of the system that trade off against each other. A lot of this falls outside of the scope of rules that can be applied. Some justices may pretend this isn’t the case, but this is not a realistic understanding of what the court does or could do. Richard goes on to explain what he has been unhappy with in a lot of the recent work and direction of the court. He also talks about the right vs. left components of involvement, and how the steady shift right by judicial doctrine in most areas was largely masked from the general public.  

 

A View on Federal Judges

Richard talks about why people become federal judges. They are often smart, good attorneys who could make more money as private practice people. They take pay cuts, often from private practice.  People become federal judges partly because they like the idea of public service, partly because the work is interesting, and partly because they like prestige and power. One of the hazards of the job is spending their working life with people who defer to you, which can lead to losing perspective. Some of the best federal judges create structural ways to prevent themselves from losing perspective.

 

Constitutional Expectations

Richard discusses his favorite essay, “Constitutional Expectations,” which he wrote 15 years ago after a minor crisis in American constitutional history. The incident involved President Obama taking the inaugural oath, but he and Chief Justice John Roberts got their signals crossed, resulting in Obama saying all the words in the presidential oath out of order. The next day, they restaged the oath one on one with the Chief Justice. However, the second time through, they still didn’t recite the oath exactly as it appears in the Constitution. This highlights the deep and important aspect of constitutional law, as it teaches us that people do not believe they have a constitutional obligation to adhere to the printed words in the text of the Constitution. Instead, it’s society’s deeply developed expectations about how the system is supposed to work. The essay “Constitutional Expectations,” explores the difference between the big C constitution and the smaller C constitution. Richard offers a few examples of interpretations from the big C constitution to small c constitution and norms that have developed.

 

Richard’s Book on The Constitution

Richard moves on to talk about his book that explores a central idea in constitutional law, which is that, state legislatures are legislatures of general jurisdiction, meaning they can make any law without affirmative prohibition from the federal government. However, Congress has a specific list of authorizations written into the Constitution called the enumerated powers of Congress. This understanding has been an orthodox part of American constitutional law since its inception. Richard’s book aims to show that many of the things we say about enumerated powers are not true, and that the system of federalism doesn’t depend in any way on Congress. He believes that the text of the Constitution and the history of the Constitution do not fully explain the enumerated powers required by the Constitution. He goes on to explain the role of the Bill of Rights and the myths surrounding it, its function, and its place in history.

 

Influential Harvard Professors and Courses 

Richard shares his passion for teaching and the experiences he gained from his first year of college. He enjoyed taking various classes, including Greatest Hits, Sandell’s justice class, Stephen Jay Gould Science B16. He also enjoyed Seymour Slive’s Rembrandt class, and a European history class with Peter Baldwin. He mentions the Constitutional Interpretation class with W.H. Perry,  and one of the teachers he appreciated was Judith Shklar in the Gov. department. Richard also mentioned his dual track in law school, where he learned from professors and implemented best practices in his own teaching. He learned from Carol Rose, a property professor, who taught the class critically, asking questions, and building conversate conversations with students. Richard learned the importance of communication, high expectations, and pushing students’ success.

 

Timestamps:

05:11 Academic journey and approaches to political theory

09:30 Law school, clerkships, and judicial decision-making

15:01 The politicization of the Supreme Court and its unique workings

22:27 The role of judicial judgment in the Supreme Court

27:15 Why people become federal judges and research interests

31:19 Constitutional Expectations vs. Textual Interpretation

40:07 The origins of the US Constitution and Bill of Rights

46:36 Constitutional Interpretation and Historical Record

51:42 Teaching techniques and intellectual growth in law school

 

Links:

Website: https://michigan.law.umich.edu/faculty-and-scholarship/our-faculty/richard-primus

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Transcript

 

92- 87 Richard Primus

SPEAKERS

Richard Primus, Will Bachman

 

Will Bachman  00:02

Welcome to the 90 T report conversations with members of the Harvard and Radcliffe class of 1992. I’m your host will Bachman. And I’m excited to be here today with Richard Primus. Richard, welcome to the show.

 

Richard Primus  00:16

Well, I’m happy to be here.

 

Will Bachman  00:18

So my normal question, I’m going to pause this for a minute on my normal question. We are doing this via zoom. And we we now have our video turned off. So we can just focus on what we’re saying. But I did get a chance to see your home office before. And before we turn the videos off. And you were telling me a story about it has serious Law Office vibes, there was a very nice wood paneling. And I’d love to hear that story. Sure.

 

Richard Primus  00:43

So I’m sitting in my study on the second floor of my house in in arbor. And as you say, it’s a dark wood panel study with lots and lots of bookshelves. there that looks like an old time law office or library, something like that. And I love sitting here and I love working here. And the room exists as sort of the ending of a Gift of the Magi story, but a happier one. Um, in around 2010, my wife, Eva, and I decided that we were going to build a house, not with our own two hands, we’re not handy like that. But we were going to design a house because we lived in a little house that we lived in since since before we were married. And it was enough house for the two of us, when it was just the two of us it was enough house, when we had our first kid, it was even enough house when we had our second kid, but we were pushing the limits and we wanted more kids. So we started looking around in October for a bigger house. And we quickly realized that we were probably not going to buy something because the thing that usually causes people to buy a house isn’t that they find the perfect house is that they’re under pressure to move. Like they accepted the job and some other town and you have to get there before the school year starts or something like that. So you know, there are six houses that you see, and none of them is perfect, but you take the best one and you move on and you’re happy. We weren’t under pressure like that. We wanted to have more kids, but we didn’t have them yet. So we had a couple of years. And that meant that everything that we saw wasn’t quite right. But after we’d spent a bunch of months looking at houses, none of which was quite right. We had developed increasingly sophisticated ideas about what we wanted to the point where we could draw it on a napkin. And once we could draw it on a napkin, you know, the question is, well, maybe we should just build it. And it was 2010 it was right after the big financial collapse. The builders had no work, right building was cheap. mortgages were cheap. And so we decided we were going to build the house. Eve, my wife drew a circle on the map of Ann Arbor at the distance of reasonable bikeability from the law school where we both work, and said, gotta find a lot in here. And we discovered that the city of Ann Arbor in an effort to reduce sprawl creates regulatory premiums on tearing down bad housing, close in and building better housing on it. So we bought a lot that have something not so good on it, and knocked it down and built. And in the course of that building. I realized the biggest driver of my happiness with the house was going to be Eva’s happiness with the house driver of Eve’s happiness with the house was going to be the kitchen, she had lots of ideas about exactly how she wanted the kitchen. So my job was to make sure that in the building process, Eve did not compromise on the kitchen. II realized that the biggest driver of my happiness with the house was going to be my study. And so she made it her job to make sure that I did not compromise on the construction of my study as a result of which I have a study that is way cooler and more comfortable than anything I would have done. If I had been in charge of designing it. I reap the benefits every day I work here it’s kind of great.

 

Will Bachman  04:38

I got to say, you know, it looks like you’re in a judge’s chambers there right? It’s it’s pretty nice with that paneling and space and not many people with the home office balancing, you know, an awkward table have something as sweet so that’s a great story.

 

Richard Primus  04:54

Well, I do I do like the strip. I don’t. It doesn’t quite look like any judges chambers I’ve been in more than eight. But it definitely has the vibe of like old school law books. And I kind of like it. Yeah.

 

Will Bachman  05:13

Okay, so let’s kick off properly. With my standard question. Tell me about your journey since graduating from Harvard.

 

Richard Primus  05:21

So we graduated in 92. And I went off to Oxford. For three years. I had a Rhodes, and I was gonna go study political theory. In the first instance, I went for two years, I stayed for three, my plan at graduation was that I had figured out in college that I wanted to be a professor. I didn’t know that when I started college. In fact, freshman year, if you had asked me, What do you want to do professionally, I don’t think Professor would have made the list right when we were starting. But pretty soon, right? While we were undergrads, I did figure out that that’s what I wanted to do. And what I didn’t know was whether I wanted to be a law professor with interest in political theory, or a political theory professor with interests in the law, I was a social studies guy, as an undergrad, and I really liked social studies. It was a theory head through and through. But I had also taken HW Perry’s constitutional interpretation class in the Gulf department. And that was a wonderful class that fired my interest. And I thought, these are overlapping interests, I bet I want to stick with one of them. The question is, which one and senior year I thought, here’s what I’m gonna do. I’m gonna do both kinds of graduate training, I’m going to do graduate school and political theory, and I’m gonna go to law school. And I’m going to see which thing I’m more pulled to. And then I got the roads. And that meant I was going to England and it didn’t make any sense to go to law school in England, because I wanted to be a lawyer or a law professor here. So I studied political theory at Oxford. And within my first term, at Oxford, I decided that the answer was, I’m going to be a law professor. And it wasn’t because I wasn’t interested in this stuff that I was reading, it was very interesting. I liked thinking about it. It was because I kept noticing the parts of what we were studying that I thought were the most important parts. Were not the parts that my teachers thought were the most important parts are the questions that I most wanted to ask were different from the questions that my teachers most wanted to ask, which meant, this is not quite the right place to learn. Okay,

 

Will Bachman  07:53

let me I gotta interrupt because I’m curious about this. This feels like a mini core core course for me right now. Tell me about the different modes of inquiry or the types of questions that you wanted to ask versus the types of questions that your political theory

 

Richard Primus  08:09

teaches, right. So partly, this was a function of the way political theory was done in Oxford at the time, not every political theory department is like this. But they wanted the questions to be abstract questions about justice and liberty and government questions sort of of the form was Hobbes Right? Or at least was Rawls right? And I wanted to ask questions, like, what do Hobbes’s ideas tell us about how he saw the world he lived in, and the system in which he was operating? That struck me as a more tractable question for scholarship. Not as exalted maybe, but one that I thought it was possible to learn more about, and then maybe actually to learn more from that was a lot of it. I wanted to situate the questions, write in their contexts, and see what the social systems were that were built around them. My teachers weren’t so much of that ilk. I was lucky I found a supervisor who was at least relatively to that direction for Oxford. And I was learning a lot so I stayed three years and finished the program. I didn’t love Oxford when I was there. I loved a lot of the people I met, and I learned a ton. And it was a very broadening experience for me to live there and see the world from a different perspective. But I was very excited to go home when when the time came. In fact, I think my time there really made clear to me just how much sense I make as an American that like this is my place. And partly it was because Yugoslavia was falling apart when I was there. And it’s really close. It’s not very far. And I felt like, people didn’t care very much. And I remember finding that strange, but it was a lot of things about England that are things that can be nostalgic about in retrospect. But I was happy to come home. And I came home. And I went to law school at Yale, starting in 95. went to law school with a lot of terrific people, including a bunch of people who had been Harvard undergraduates, and was confirmed very quickly, in my view, that law professor was the right thing for me. From the day I started law school until the day I finished it, it was very clear to me that yes, I want to be a law professor, I’m super interested in this stuff. I love thinking about it. It meant that I went through law school, in all my classes doing two things at the same time, partly trying to think about, well, what’s the material here that we’re learning, but also partly asking, what’s this professor doing? How is she teaching this class? What’s your technique? what’s working, what’s not working, because I figured it would need that bag of tricks later. I finished law school, I stayed in New Haven a fourth year to clerk for a federal judge, a man named Guido caliber AC who had been the dean of law school, el before the time that I was a student there. Really brilliant guy, a top scholar who’s still on the bench now very senior. And then I went to Washington, DC, and spent two years clerking for Justice Ginsburg, at the US Supreme Court, which was a great privilege, and highly educational, and deeply frustrating. All at the same time.

 

Will Bachman  12:23

Why was it frustrating?

 

Richard Primus  12:25

Well, here’s why it was frustrating. I didn’t think that justices listened to each other very much, or very well. And I thought that was bad for the decision making. I had been very impressed by the judges on the lower court the previous year, I guess it kind of goes like this. There’s something that happens to a lot of students in elite American legal education, where you go through law school, getting the feeling that there really isn’t any law, there aren’t settled rules that judges do, more or less whatever they think makes sense, in a particular case. And the reason that law school makes a lot of us think that I think isn’t that it’s true. Although I understand why law students think it’s because at a really strong law school, you don’t spend a lot of time learning how to decide easy cases, they figure you can figure out the rules for the easy cases pretty fast. What makes a great law school a great law school is that it’s a place where students learn to think their way through really hard cases that might not have obvious or even unique, right answers. So the curriculum spends most of its time dealing with cases where there might not be clear right answers. And that means that like, it might go this way. And it might go that way. And if you read cases over and over and over again, and it might go this way. And it might go that way. You could have the view that like, it’s not really law, it’s just judges deciding what they think is best. And I came out of law school with a little bit of that attitude. And then I clerked for a year on the US Court of Appeals. And I learned, hey, that’s just not true. 95% of the cases that come in have right answers. 95% of the cases that come in, will be decided unanimously by the three judge panels that decide them, regardless of who the judges are, regardless of who appointed them. Because they’re easy cases, or at least if even if they’re not easy. They’re the kind they’re technical. You can work through them and figure out the answer. And, and if you reverse the court below, it’s not because you have an ideological disagreement with them. It’s just because the district judge made a mistake. Your district judges that they’re super busy, they’re overloaded, they’re making 100 decisions, like real time every week. Like everybody’s gonna blow with you. So that’s what you’re doing. You’re correcting mistakes most of the time. And I was very impressed with the judges who I saw on the Court of Appeals, who were, I thought, for the most part, not quite without exception, but really, for the most part, intelligent, and hardworking, and trying to do the right thing, and listening to each other and figuring it out. And the work was really enjoyable and really rewarding. And most of the cases came out unanimously. And so after a year, I thought, huh, it turns out it’s not a function of the judges opinions or ideologies or worldviews or so forth, right? There really is law in the more simple sense. And then I went to the US Supreme Court. And if the US Supreme Court, it was much more like the looser personality and ideology driven thing that I had suspected when I was in law school. And partly, that’s because they see a different docket, right? cases, the cases that get to the Supreme Court are disproportionately cases that don’t have clear right answers, right? That’s part of it. Some of the Supreme Court’s docket is technical stuff. And a lot of that does come out unanimously. And I actually found that those were among the most satisfying cases to work on because it wasn’t just about clashing ideologies. But in the cases that were about contentious social issues, or cases with ideological or political valence, I thought the justices mostly don’t listen to each other very well. And that was disappointing, and frustrating, I’m still a privilege to work there. Still a huge privilege or like to take your turn, stand your post, you know, for a year make your contribution. And so I did, and I’m very grateful for the opportunity to have done that, in fact, retrospectively, of course, one of the things that I must mention is that I clerked that year with our classmate, Petacci, brown Jackson, right, who has since returned to the court. It’s, it’s something that I got to do, you know, for that year at the same time, that she did. And then I stayed in DC a little bit and worked as a lawyer, knowing that I wanted to go be a law professor. But also having figured out that if I couldn’t be a law professor, I would have a very happy life as a practicing lawyer and like the guts of the law. And also figuring that if I was going to teach it, I should have done it myself a little first. So I did. And then I went looking for teaching jobs. And I got offered a position at the University of Michigan. And Michigan felt very comfortable. For me very quickly. I grew up not far from here, I grew up in South Bend, Indiana, which is 135 miles from Ann Arbor as the crow flies. And the towns are in Arbor in South Bend are sort of like twins through the looking glass. Southbend is a post industrial, small to medium Midwestern city with a small university on its outskirts, that makes a disproportionate amount of noise, because of the Catholic Church and the NCAA. And I had very strong ties and loyalties to Notre Dame growing up there. And I always imagined from the perspective of the kid in South Bend that an arbor must be a metropolis. Because I understood that the University of Michigan was way bigger than Notre Dame and I imagined, you know, just like you do the proportion of scale, right, if that’s what the school is like, and what was the town be like, and what I didn’t get with it, it’s totally reversed. And Arbor is a large muscular world class research university. And the civilization that it sustains, right? So the total size of the place is about the same in South Bend. It’s just that how much is University and how much is town is reversed. But it felt culturally very similar in a bunch of ways. And so I came here and felt comfortable very fast. loved my colleagues really liked my students like the town and except for a couple of years when I’ve done visiting, teaching at other law schools I’ve been here ever since. And, and it’s now going on 23 years.

 

Will Bachman  20:12

That’s quite a story in you, I want to get onto your research and multiple other topics. But before we get past the Supreme Court, I’d love to hear a bit more about the frustration and getting into that. And maybe tell us a little bit about you, certainly from the outside, just as a reader of the newspaper, you hear about how the Supreme Court is kind of politicized, you read some articles about how the John Roberts has sort of this multi year kind of strategy that we’re just guessing at that, you know, so they kind of pick their cases very strategically in order to get an objective, right, as opposed to just like deciding individual cases, but they sort of have this, you know, tell us a bit about just more about that the politicization of that, does it feel more like interacting with politicians than it did at the appeals level of interacting with, with with judges? Just I know, you can’t talk about individual cases that you that you worked on, but but just give us a little bit more insight of what it feels like being inside of that institution?

 

Richard Primus  21:16

Yeah. There’s a way in which the Supreme Court is the least, court like, and it’s law is the least law, like, of any court in the federal system. It’s probably true of courts of last resort, generally. And, and so, you know, part of what’s weird about it, of course, is that since it’s also the court that gets the most attention, it distorts our sense of what courts and law are generally like, right, because it gets in some important ways, unlike all those other things. The rest of the court system is mostly in the business of applying rules, mostly in the business of managing within the system. And doing, you know, things that I think of as ordinary legal analysis, that’s oversimplifying. But it’s not really raw. The Supreme Court as an institution, when it’s working well, has a different function. It’s a function that I think is more about statesmanship, than it is about rule application. It’s about keeping the system and the ship of state afloat by making decisions that need to be made in order to give a little guidance and keep going. It calls for the exercise of a different kind of judgment, from the kinds of judgment that are called for in other parts of the system. trial judges have to exercise judgment all the time. They have to exercise judgment about the credibility of witnesses. And, and, and they have to exercise judgment about the progress of litigation and 1000 ways like being someone with just good savvy interpersonal judgment is key for being an excellent trial judge. Supreme Court justices to do their jobs will need to exercise judgment, about governance, about how this system of governance functions and how it risks and how it realistically can function. And about how to negotiate among the multiple different kinds of things that at relatively high levels, the system has to trade off against each other. And a lot of that is outside the scope of rules that can be just defined and apply. There are some justices who pretend this isn’t so who would like to say, I’m just following the rules here. And that’s all I’m supposed to do. I don’t think that’s a realistic sense of what that court does, or even could do. I do think that it’s possible also to do that job badly. I don’t think that having an idea of where you want to take the court necessarily means that you’re doing it badly. I think that I think that it’s important to think about the future of the institution, and what its role is within the system. I do think that I am unhappy with a lot of things It’s about the work in the direction of the Court recently. I was unhappy with it already in 2001. There’s a narrative, I think that prevails now that says that the court is now a conservative court for the first time in a long time, and that produces a lot of change. And it’s true that the court now is more conservative than it has been in a very long time. I mean, maybe ever it’s hard to apply the left right, measurement uniformly across time. But the court has been the center of the court has been people whose jurisprudential and other worldviews have been significantly to my right, for much, much longer than that. There hasn’t been a majority of Democratic Party appointees on the court in more than 50 years. And I thought already, in 2000, when I left the court, there were lots of things that were not making sense, or that would make sense from an ideology. That was certainly not my ideology. Because the court continued to maintain its precedents on abortion, and on affirmative action. The fact that judicial doctrine in most areas was moving steadily, steadily, steadily to the right, was largely masked for a lot of the American public, both liberals and conservatives. Now, of course, those things have been overturned, and it’s much more clear to everybody. But it’s actually been that way, I think, for a long time. And now there’s just more people notice it.

 

Will Bachman  27:15

Okay, before we get to research, I have one other question. You have known a bunch of federal judges. I’ve wondered this for awhile. Someone who becomes a federal judge, they’re probably a pretty smart, pretty good attorney, who could probably make more money as a private practice person, you know, they’re probably taking a significant pay cut. And it doesn’t sound like it’s an easy job you always hear about they’re overworked and stuff. Why do people become federal judges? Especially at the appellate level? I

 

Richard Primus  27:45

think that’s a great question. I think there’s more than one answer. It’s true that a lot of people take pay cuts, if they’re coming from private practice, right, they’re almost sure to take pay cuts to do it. There are a lot of federal judges who don’t come from private practice. Traditionally, a lot of them have come from jobs as prosecutors in the Biden administration, they’re now also appointing a bunch of people who come from roles as public defenders, which I think is an important development because a bench that has a lot of experienced prosecutors and very few experienced Defenders is going to have skewed perspectives about the criminal cases, they’re judging, it’s important to have people with experience in both roles. But I think that people do it, partly because they like the idea of public service. And partly because the work is super interesting. And partly because people like prestige, and power. And the job of federal judge comes with a lot of prestige, and a lot of power. I actually think one of the hazards of the job is that you become a federal judge, and then you spend your working life with people who defer to you all the time. And it’s a good way to lose perspective. I think some of the best federal judges I’ve known are people who create structural ways to try to prevent themselves from losing perspective and to prevent all that difference from going to their heads. I think that’s the set of reasons why people become federal judges and like with most things, it’s a mix of honorable and more venal sorts of motives.

 

Will Bachman  29:40

Thank you. That helps. Let’s talk a little bit about your research. So what are some of the diggers in any direction you want? You can tell me about some of your articles that your or your favorites that you’ve written or that have gone viral or something or just that you’re most interested in a tell me about the things that you write about and research about.

 

Richard Primus  30:05

Okay. Well, I’ll tell you about a couple of sort of like my little favorite things, and then I’ll tell you about the project I’m working on now. Excellent. So I teach constitutional law. I teach constitutional law, constitutional history, constitutional theory, constitutional interpretation, that bundle of stuff. One of my favorite things that I have ever written was a little essay called constitutional expectations that I wrote about 15 years ago, prompted by what I thought of as one of the smallest crises in American constitutional history, which was the flubbing of the inaugural oath. On the day that Barack Obama became president. You might recall that when Barack Obama took the oath of office, he and Chief Justice John Roberts got their signals crossed a little bit. And the result was that President Obama said all the words in the presidential oath, but he said them out of order. And this caused a lot of people to get a little bit flummoxed. And so the next day they restaged

 

Will Bachman  31:22

the oath, like in the office or something, right, they just did it one on one with the

 

Richard Primus  31:26

correct the Chief Justice came to the White House. Yeah. And instead of okay, we’re going to do this again. Right, and we’re gonna get it exactly right. We’re gonna do this very slowly. Right. It seemed like they had a proper sense of humor about it.

 

Will Bachman  31:41

Like the magic words, you got to say, exactly. And

 

Richard Primus  31:44

that’s, that’s, that’s the thing that provokes me to write this essay, because you would think that in that circumstance, the second time through, they would recite the oath, exactly the way that it appears in the Constitution. Right, that was the whole point. That they hadn’t gotten the words quite in the right order the first time. Right. So the second time, they’re gonna make sure that they get the words. Exactly, right. Right. Like, like, what what else could the point be? Right?

 

Will Bachman  32:24

I mean, it’s right there in the Constitution. Right? Exactly. Just open it up and read it.

 

Richard Primus  32:31

Exactly. I have mine in front of me right now. But here’s the thing, the second time through, they also didn’t recite the oath, exactly the way it’s in the Constitution. And nobody noticed. Nobody minded. And when I heard him do it, I thought, Okay, I’m writing an essay about this, because it tells us something very deep and important and interesting about constitutional law. Here’s what happened. The President raised his hand and repeating after the Chief Justice, he said, I, Barack Obama, do saw our humanity, Barack Hussein Obama, do solemnly swear That I will faithfully execute the office of President of the United States, and so forth. Here’s the thing, well, Article Two of the Constitution of the United States does not contain the words Barack Hussein Obama. Right? It doesn’t. The Constitution doesn’t say, I insert your name here, do solemnly swear. Okay. The Constitution says very clearly, before he entered on the execution of his office, he shall take the following oath or affirmation, I do solemnly swear that now, it makes no difference. It doesn’t change the meaning of the oath in any way. That presidents as Obama wasn’t the first president to do this, right. Presidents for several generations have done this. It doesn’t change the meaning of the oath in any way that you stick your name in. Right? Like it would be bizarre to worry that you had somehow not taken the oath, right? Because you put your name in. But it was just as bizarre to think that there was something wrong with the way they had actually done it on January 20. The way they did on January 20, flipped a couple of words, and change, no meaning whatsoever. Right. But that one freaked people out. That you would think that if that’s that if it freaks people out to flip the words without changing the meanings of the second time, they would do the words exactly as they’re written in the Constitution. And they didn’t, and nobody even noticed. And here’s why. Right and here’s like, the point of why this was worth writing about. teaches us the reason Don’t think that people think we have a constitutional obligation to adhere to, isn’t the printed words in the text of the Constitution? It’s our society’s deeply developed thickly constituted expectation about how the system is supposed to work, right? All of us who have grown up in America and seen or heard recordings or live presidential inaugurations, we know how this works. And part of how it works is they say their names, right? They do like I, George W. Bush, do solemnly swear IG IG, Jimmy Carter, do solemnly swear. Like that’s how they do it. And because that’s how they do it. That is the constitutional system that we expect. And that is the constitutional system, deviations from which strike us as problems, it’s not about exactly the words in the text. If there’s a thick practice, that has grown up around the text, that becomes the normative constitution. So I decided this is a perfect illustration of this phenomenon. In constitutional theory, we sometimes talk about the difference between the Constitution with a capital C, right, proper noun, and the Constitution with a lowercase c, which is the older generic sense of constitution, right? The system, the way the thing operates. This was a wonderful illustration, this thing that happened in public view of the difference between the big C constitution and the little c constitution. And I used it to write a short essay called constitutional expectations about the difference between those things, and the ways in which we are sometimes really abiding by enforcing the small c constitution, thinking that what we’re doing is the big C Constitution, that was a very fun, useful paper to write that

 

Will Bachman  37:06

is very cool. Tell me another example of one of these things where the think practice is somehow different than the actual text.

 

Richard Primus  37:17

So the Constitution says that the scribe of all crimes, shall be by jury. During the time that you and I have been having this conversation, in a whole bunch of federal courtrooms across the country, defendants have waived jury trial, and chosen to be tried just by the judge. Instead, we permit that we permitted as a matter of routine and have for a very long time. It’s because we think of jury trial as a right of the defendant, rather than thinking of it as a structural requirement of a functioning court. You could think about it either way. Right? I’m not saying that one is right and one is wrong. But the way we do it isn’t the way it says in the text. Here’s another one. Do you think the President of the United States as the authority to issue an order to the armed services, requiring that on the eve of battle, all combat forces need to take, let’s say Episcopal communion? I don’t think the President has that authority. And basically, nobody thinks the President has that authority. Everybody thinks it would violate the First Amendment as either a violation of as either an unconstitutional establishment of religion, or as course religious practice in violation of the First Amendment right of free exercise. The thing is, the First Amendment doesn’t say anything at all about the president. It says Congress shall make no law respecting an establishment of religion. And there are a lot of things in the Constitution that are reasonably susceptible of more than one interpretation. But I don’t think you can read Congress to mean president and see that what you’re doing is what it says in the text of the Constitution. It’s a small c constitutional norm that we have. That’s separate from the words of the Constitution and you can win a case on it in federal court anywhere in America in 10 minutes flat. So most of the time, we don’t notice that these things aren’t in the text. But they’re not.

 

Will Bachman  39:56

A lot of what we depend on is these norms that develop

 

Richard Primus  40:01

Correct. Correct? Absolutely correct.

 

Will Bachman  40:06

I love that story. Tell me Tell me another one something else that’s been fun for you to work on?

 

Richard Primus  40:13

Well, I’ll tell you what I’m working on right now. Oh, good. Um, I’m writing a book about a pretty central idea in constitutional law. The idea this is a common law, one on one kind of idea. State legislatures are legislatures of general jurisdiction, which means that the state legislature, from the federal government’s point of view can make any law that isn’t affirmatively prohibited, right state can make any law at once, unless that law is affirmatively prohibited either by the Constitution or by federal law. With Congress, the default is flipped. Congress is only supposed to be able to legislate on the basis of a specific list of authorizations written into the Constitution, right, what we call the enumerated powers of Congress. Right. So the first question you asked about the constitutionality of a federal lock is, is there some enumerated power that affirmatively authorizes Congress to do this, otherwise Congress can’t act. And this understanding of the different defaults between the state guard between state legislatures, and Congress has been an orthodox part of American constitutional law from the beginning. And, like, every law student learns it. It’s it’s, it’s fully orthodox. And over the course of a bunch of years teaching constitutional law, I became increasingly uncomfortable about it. Which is to say, I became increasingly uncomfortable with the things that constitutional lawyers say, to explain why this is the rule, who explain why this system works this way. There are things that we say about the text of the Constitution, to explain why it works this way. And there are things that we say about decisions that were made at the founding of the Republic. And there are things that we say about how federalism works, that are all supposed to support the idea that this is the system. And I came to notice that as I push on each of those individual explanations, they fall apart. They all came to seem to me like rationalizations, rather than really real reasons. I’ll tell you one, that’s relatively widely known as a reason. And I’ll tell you why. I think it’s rationalization. There’s a thing that a lot of us learned, I learned it the first time in high school, most of us did, I think. And then I learned again, in college, and I learned to get in law school, about the Constitution and the Bill of Rights. It goes like this. When the framers wrote the Constitution, they did not include a Bill of Rights. Right. That’s why the Bill of Rights these amendments came a couple of years later. And when the Constitution was presented to the Republic to the public for ratification, lots of people criticized the constitution for not having a bill of rights here was one of the major objections that the people opposed to ratification pressed. In several of the Constitution is defenders, most famously Alexander Hamilton, in the Federalist said, no, no, you don’t understand. It’s on purpose that we don’t have a Bill of Rights. Why don’t we have a bill of rights. We don’t have a Bill of Rights, because the way this system works is that Congress doesn’t need to be limited by a Bill of Rights. Congress is limited by the enumeration of its powers. And because Congress can only act on the powers the Constitution enumerates, it isn’t going to have the ability to behave in abusive ways that would violate your rights in the first place. And if we start articulating rights affirmatively and think Congress can’t do this, Congress can’t do that. People will say, Wait a minute. The expression of prohibitory rules implies that unless there’s a prohibitory rule, Congress can do stuff. And that means that if we specify affirmative prohibitions, the real result will be that it’ll make Congress much more powerful than we intended. So it’s good to there’s no bill of rights. There’s no bill of rights because the enumeration of powers is the thing that’s going to limit Congress. That’s the Orthodox story. That’s the story that most of us learned, you know, even multiple times the Supreme Court of the night states tell us that story sometimes in its opinions when it explains things about enumerated powers in the Bill of Rights. Here’s the problem. The story is a fable. It didn’t happen that way. What actually happened, I have come to think, is it the framers had other reasons for not including a Bill of Rights. This was not yet. When they went to the public with the Constitution without a Bill of Rights, they had to gin up some excuses for why there was no bill of rights. One of the biggest reasons they didn’t have a Bill of Rights was that if they had tried to write a Bill of Rights, they would have broken up the Constitution, they would have broken up the convention, because of conflict on the slavery issue. There were state bills of rights at the time in about eight of the states. And most of the northern states had bills of rights, the talks about the natural rights of all people are things like it, and most of the southern states had bills of rights that very carefully talked instead about the rights of free men. And there were reasons to think that there would be conflict about this choice of language because of what it might imply for slavery if the Convention had to agree on it. And they knew they could not agree on it. So they didn’t write the Bill of Rights. But they didn’t want to go to the country and give them that explanation. So they had to come up with something else. And one of the explanations that some of the pro constitution people came up with was the things as well, we don’t need a Bill of Rights, because the enumerated powers will do the job. And here’s the thing, almost nobody believed them. Hmm, the historical record of the time seems to indicate that nobody bought that. I mean, you know, 100,000 people having the arguments, I can’t say zero people, but but for the most part, people did not buy it, they recognized a weak rationalization for what it was, and rejected it. Here’s a fun fact, about the famous argument that Hamilton makes in the Federalist about the Bill of Rights. It’s in the 84th Federalist Paper. There are 85 federalist papers. He ducked that argument until ratification was basically already accomplished. He probably understood it wasn’t his best argument. But later, the story survived. That is to say, Hamilton and the others who made that argument didn’t succeed in fooling the contemporary public, they largely succeeded in fooling posterity. And I’m writing a book that tries to show that many of the things that we say about enumerated powers are like that, that the text of the Constitution that people think requires enumerated powers doesn’t quite say that, that the various things that we say about the history of the Constitution that people say require enumerated powers didn’t quite happen that way. The system of federalism doesn’t actually depend in any way on the Congress has been limited to enumerated powers. federalism is enormous ly important. But the enumeration of Congress’s powers turns out to be a wheel that plays no part in that mechanism. It’s not what does the work. So I’m writing a book about how the enumerated powers idea that we have is a story that we tell, but not really one that hangs together once you start pushing on it, on its merits.

 

Will Bachman  48:47

What a story, this sounds like a great book. I am looking forward to this one. Richard, I’d love to hear a little bit about any courses or professors or activities that you were involved in at Harvard that continue to resonate with you. You already mentioned. One, that what else got you thinking that you wanted to be a professor you entered? Not quite convinced of that. And what else resonates with you could also be some non professional things that you, you know, other interests that you discovered while while at Harvard?

 

Richard Primus  49:22

Yeah. So I think the thing that told me that I wanted to be a professor was that my first year, I just I loved all of my classes. I didn’t take I didn’t choose my classes all that creatively. I took mostly Greatest Hits stuff as a freshman I took Cinderella’s justice class and I took Stephen Jay Gould science be 16 And I took me 10. In the spring semester, I took see more slides Rembrandt class, and I took a European history class with a really great teaching in Peter Baldwin. And I just loved it all. I, I loved the class I loved you know, going in like hiding in some Carroll deep and Weidner and doing the reading and thinking about it for as long as I could. I thought this is a great project, like I get to think and read about interesting things, and then do it again. And then I discovered that there were all kinds of smart people around me, you know, with whom to talk about it that that that seems great, too. I think the, the teacher at Harvard, so there were there was a constitutional interpretation class with HW Perry, that was just a fantastic class, partly because of the material and partly because he was an extra classroom teacher, and partly because of the wonderful group of people who were in the room with me taking the class. Several of them are very well known names now from our class, and also from the class before ours. At Noah Feldman, Sheryl Sandberg, Juliet Cayambe, a bunch of other really terrific people. And the other teacher, who really stood out for me, as an undergraduate, was Judith Sklar in the Gulf department. I took a class with her from the fall of our junior year, called political theory in the age of World War, it was a small class. It was a seminar. And I mean, that woman knew everything. I mean, it was like, really incredibly impressive. And part of what I appreciated about her as a teacher, that this educational technique wouldn’t work with everybody, but it worked well with me. We’d be in the seminar, we’d be talking and when it was appropriate, she would look across the table at me and say, Richard, on this, you have no idea what you’re talking about. And it made me raise my game. She I didn’t think she was being insulting or dismissive, but to say, I thought that she understood that, like, I was, like, doing my best in a relatively good level for an undergraduate and like I, but she was saying, you can do a lot better than that. And, and she wasn’t cushioning it. And he made me raise my game. And I wound up writing a paper at the end of that class. That was about the way that a particular legal theorists, views about natural law changed. After his experience of being a war crimes prosecutor, at the end of the Second World War. It was maybe my first experience really digging into the kinds of questions that you asked me about the very beginning, like, how do people’s ideas about big, abstract important ideas about justice and law and government fit in with the way they see the world around them and the systems of which they are a part? It was a demanding, and totally worthwhile intellectual experience that pushed me very, very hard. And I’m very grateful to have been a student of hers.

 

Will Bachman  54:14

You mentioned that you when you were in law school, you were had sort of a dual track, you were taking the course and learning the material, but you were also working to observe professors, and it notes for your future career of sort of best practices. I’m curious if you recall any sort of things that you picked up or techniques or ideas that you have implemented in your own teaching. A couple

 

Richard Primus  54:52

my property professor in law school was a woman named Carol Rose who I came to understand over the course of the semester, had a very thought out way of deciding, she taught the class to critically where you call on people and ask questions, which is mostly how I teach. Also, I’m sure she did not call on people at random. But she was able to, at least not completely. But she was able to call on people in a way that didn’t make it seem like it wasn’t random. She had a knack for calling on the right person at the right time without being heavy handed. That was really an impressive thing to watch, and to learn from him to think about, like how I could implement. There were teachers who built conversate small conversations with students in the room based on how the students had talked, what they had said early in the semester. And the teachers would sometimes essentially de facto make that student in charge of that part of the material for the semester going forward. Not that other people weren’t also expected to understand it. But if you needed your memory jogged about that part of the conversation, the teacher might go back to that person, right. And it like lights up the part of everybody’s brain and room this is Oh, right, that idea. I remember that. Right. Also a good technique. And I think I learned from some combination of teachers, the importance of always being able to communicate at the same time, that you have very high expectations for your students. And that you are there to ensure that your students can meet those expectations, right, that you’re not laying traps for them, and hoping that they will fall right that you are behind them, that you are there to, like push their success and that their success is your success. And they can do it. I have always tried to teach that way. And, and I think that there were and I think it was a learning experience watching my teachers to see what worked well and what didn’t. That was part of what helped me decide to teach that way.

 

Will Bachman  57:50

From just this conversation, I think it would be so inspiring and fun to sit in your class. I love the stories that you’ve shared. On this episode, Richard, where if listeners want to find out more about your articles, your research, where would you point them online.

 

Richard Primus  58:10

So I would point them to my faculty website on the University of Michigan Law School site, it’s law dot u m IC h.edu. And look for me under faculty. And you’ll find links to things I’ve written and other things about my professional life. It’s all laid out pretty easily.

 

Will Bachman  58:33

Amazing. We will include that link in the show note. Richard, thank you so much for joining today. This was a lot of fun.

 

Richard Primus  58:39

Well, thanks so much for asking. It’s been nice talking to you.