The Michigan Supreme Court has refused, 5–2, to reconsider its earlier ruling allowing the Michigan Civil Rights Initiative (MCRI) to appear on the November ballot, thus rejecting yet another time the frivolous argument of By Any Means Necessary (BAMN) that it was fraudulent for MCRI petition gatherers to describe a measure that would outlaw preferences based on race as a civil rights measure.
The Michigan Supremes’ opinion is not yet available online, but Jennifer Gratz, Executive Director of MCRI and frequent commenter here, has generously sent me a copy. It’s quite interesting, more for the support it provides to textualism as a method of interpretation than for its unsurprising decision to allow MCRI on the ballot.
Textualism is a close first cousin of original intent, but the two concepts are certainly not identical. Not all devotees of original intent, for example, limit their search for it to the text of documents being interpreted, but that limitation is at the heart of textualism. Thus Justice Scalia, perhaps the most well known and outspoken advocate of textualism, rejects legislative history and even the concept of “legislative intent” as relevant to determining the meaning of statutes, or constitutions. As a good, recent summary of his argument states,
As a textualist, Justice Scalia totally rejects reliance on legislative history or legislative intent. He invariably criticizes his colleagues for turning to committee reports, or even floor debates, to ascertain what a law means….
Scalia argues that the Court is to interpret the text alone and nothing else.[34] The law should be understood to mean what it says, and say what it means….
Returning now to the MCRI petitions, the position of those who oppose MCRI is that the petitions with the text of the proposed amendment that citizens were asked to sign themselves become irrelevant. All that is relevant, they argue, is what the petition gatherers are said to have said about the meaning of the text. This issue, then, is a form of the debate over the centrality of text itself, with the people themselves acting as legislators or, in this case, as writers of their own constitution, as recognized in a concurring opinion by Justice Markman:
Assuming the accuracy of everything set forth in the CRC report, the signers of these petitions did not sign the oral representations made to them by circulators; rather, they signed written petitions that contained the actual language of the MCRI. This Court does not sit in review of the hundreds of thousands of individual conversations that may have occurred between petition circulators and signers. Rather, it sits in review of the petitions themselves.
….
In carrying out the responsibilities of self-government, “we the people” of Michigan are responsible for our own actions. In particular, when the citizen acts in what is essentially a legislative capacity by facilitating the enactment of a constitutional amendment, he cannot blame others when he signs a petition without knowing what it says. It is not to excuse misrepresentations, when they occur, to recognize nonetheless that it is the citizen’s duty to inform himself about the substance of a petition before signing it, precisely in order to combat potential misrepresentations.
A necessary assumption of the petition process must be that the signer has undertaken to read and understand the petition. Otherwise, this process would be subject to perpetual collateral attack, and the judiciary would be required to undertake determinations for which there are no practical legal standards and which essentially concern matters of political dispute.
Indeed, if text had always been taken as seriously as Justice Markman so commendably takes it here, MCRI and its 500,000 or so supporting petitions would have been unnecessary, since the texts of the executive orders by both President Kennedy and Johnson and the text of the Civil Rights Act of 1964 make it as clear as words can that racial preferences violate basic civil rights.
