87. Richard Primus, Constitutional Law Professor

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