Fidelity and Construction.

• Author: Thapar, Amul R.

BOOK REVIEW CONTENTS INTRODUCTION 776 I. FIDELITY, CONSTRAINT, AND NEW ORIGINALISM 779 A. Lessig's Fidelity to Meaning 779 B. Fidelity to Meaning and Originalism 783 C. The Contribution of Lessig's Fidelity to Meaning 788 D. The Contribution of Lessig's Fidelity to Role 788 II. ROLE AND CONSTRUCTION 791 A. Two Presumptions: Liberty and Democracy 793 B. Debates Between the Federalists and Anti-Federalists 797 C. Debates at the Constitutional Convention 802 III. CURRENT CONCLUSIONS 807 INTRODUCTION

Judges must know their role to fulfill it. Lawrence Lessig helps judges do just that in Fidelity & Constraint: How the Supreme Court Has Read the American Constitution. (1) But his book is not just for judges; it is for anyone who cares about how the judiciary fits into our constitutional structure. Pages turn easily as Lessig describes the judicial role, explaining how our Constitution and nation have been shaped by the ways some of our great judges have done their jobs. Fidelity & Constraint offers example after example of how Justices from John Marshall to Antonin Scalia have balanced the necessity of fidelity to meaning with the constraints of the judicial role.

That much is clear from the book jacket. But we think Fidelity & Constraint also makes a contribution that is not as clear. Specifically, the book contributes what we think could be an important perspective to "New Originalism" (2) and, more specifically, to the debate over what judges should do when they find themselves in the so-called construction zone--the place where courts determine how to operationalize underdeterminate (3) text in specific "cases" or "controversies."

In Part I, we explain why the book is relevant to that debate. Lessig advocates a theory of constitutional adjudication called "translation," or "two-step originalism," in which a judge first determines the original meaning of a constitutional phrase and then "translates" that phrase to suit a modern situation. (4) A New Originalist might call these processes "interpretation," the discovery of semantic content based on original public meaning, and "construction," the creation of doctrine within the parameters of original public meaning. (5) Lessig and New Originalists would seem to agree that these processes are distinct and ever present. But from that shared premise, many disagreements follow. To state things a little simply for now, originalists debate what to do when the original meaning is underdeterminate. Some originalists believe that when the meaning is underdeterminate, judges should apply a presumption of liberty (against the government action), whereas other originalists believe that judges should apply a presumption of democracy (in favor of the government action). Of course, judges must still decide cases even if the Constitution's guidance is less than determinate. The presumption they apply, if they must apply one, might determine whether a challenged law stands or falls. (6) Fidelity & Constraint suggests that this question is not simply one of political theory. Rather, Lessig believes that judges have an important duty to adhere to their role when interpreting the Constitution. Thus, judicial construction should be guided and limited by judicial role.

Lessig defines the judicial role through case studies of what judges have done historically. In other words, he takes a largely descriptive approach, walking through Supreme Court cases and then reaching a definition of "role." What judges do, according to Lessig, is balance two dueling fidelities: fidelity to meaning and fidelity to role. (7) He argues that the battle between these fidelities, which "compete for the attention of a court," explains why the Supreme Court has decided many important cases the way it has. (8) But his theory is not just descriptive. For Lessig, the descriptive becomes the normative: what judges have done out of fidelity to role is what judges should do. (9)

Regardless of what judges have done, we think the better approach is to determine the original understanding of a judge's role. (10) And rather than seeing the two fidelities Lessig identifies as competing, we think they are complementary. Fidelity to role should never override fidelity to meaning. Rather, fidelity to role informs fidelity to meaning when the text is underdeterminate. When a judge finds himself in the construction zone, he should look to the original understanding of judicial role to inform his inquiry. Lessig's important work motivated us to examine this history and to investigate the original understanding of the judicial role. We think our findings can offer insight, if not clear instructions, to judges in the construction zone.

In Part II, we put ourselves in the position of the Justices in many of the cases Lessig surveys--that is, in the construction zone. And we explore whether Founding-era sources give any guidance as to how a judge should understand his role in that zone. One book review is not space enough to test our hypothesis fully, and we would not presume to tell other judges how to do their jobs no matter how much space we had. Our goal is merely to help judges show fidelity to both meaning and role by supplementing Lessig's rich historical account. In doing so, we hope to show that the two fidelities Lessig identifies go hand in hand. And most of all, we hope to show how other scholars and judges might continue to study the original understanding of the judicial role.

Evidence from the Founding that we have reviewed--particularly Anti-Federalist critiques of the Constitution, Federalist responses, and the Constitution's drafting history--suggests that judges need not in fact make a binary choice in the construction zone between liberty and democracy. Instead, different presumptions might apply in different situations. Our research lends support to the idea that judges should apply a presumption of liberty in cases about federal power but a presumption of democracy in cases about state power. More research might well make this framework more nuanced. We have not had space here to investigate the relevant history of the Reconstruction Amendments, for example, which expanded the role of the federal government in some areas and, along with it, the role of the federal judge. Maybe an intrepid scholar with the space of a book will do a comprehensive study, or maybe other judges with the benefit of historical briefing will discover evidence for different presumptions case by case. Our modest goal is to show that this type of inquiry is not only possible but also useful.

This Review is premised upon the core assumption of originalism, namely that the Constitution's original meaning should govern whenever the Constitution applies. Throughout this Review, we will discuss how the core tenets of originalism might operate in several scenarios. But we offer no opinion about how any particular case could or should come out. One of us is a judge, who understands his role as limited to offering an opinion only after a full adversarial process. It would be especially inappropriate to overstep that limit in reviewing a book about fidelity to judicial role.

1. FIDELITY, CONSTRAINT, AND NEW ORIGINALISM

   Fidelity & Constraint can be read as a contribution to New Originalism in two ways. First, Lessig implicitly adopts the distinction between interpretation and construction that underlies New Originalism. Thus, many of his case studies show that distinction at work. Second, his book suggests that judges might be bound by their very role as judges--as opposed to political philosophy, original methods of legal reasoning, or inferences from the Constitution--to construe underdeterminate provisions in certain ways. At least, that is our interpretation. To get there, we must first discuss what the book sets out to do and how it does or does not square with originalism.

   1. Lessig's Fidelity to Meaning

      Fidelity to meaning is easy enough to define, given our written Constitution. "The whole premise of a written constitution," says Lessig, "is that the words have meaning and that meaning both enables and constrains." (11) Yet "[t]hat constraint means nothing without an effort to remain faithful to the meaning so written." (12) To day, scholars and judges of all stripes acknowledge the importance of original meaning. Fidelity to meaning requires finding and applying that meaning.

      Although Lessig believes the original meaning of the Constitution constrains judges, he criticizes originalists. He argues that originalist judges have practiced what he calls one-step originalism, where the only question is WWFD: What Would the Founders Do? If the Founders would not have contemplated and thus could not have sanctioned a particular practice by private parties or the government, then, in Lessig's telling, the one-step originalist would conclude that the Constitution does not protect or allow it. (13) By his lights, this is a pretty easy job--and one that limits constitutional solutions to modern problems.

      Lessig argues that judges should instead preserve meaning through translation, or what he calls two-step originalism. He says, correctly, that "[t]he aim of a court interpreting a constitution, at least according to the ideals of interpretive fidelity, should be to preserve that constitution's meaning across time." (14) Translation is his metaphor for "produc[ing] a reading of the original text in the current context that has the same meaning as an original reading of that text in its original context." (15) Picture a judge with headphones, listening to the public discourse of 1787 and transcribing the common usage of the Constitution's words and phrases. (If only.) Two-step originalism is Lessig's conception of how translation works in judicial practice. "In the first step, the translator understands the text in its original context. In the second step, the translator then carries that first step meaning into the present or target...