The inevitable infidelities of constitutional translation: the case of the New Deal.

• Author: McGinnis, John O.
• Position: Fidelity, Economic Liberty, and 1937

INTRODUCTION

Professor Lawrence Lessig's theory of fidelity in translation(1) has been perhaps the most celebrated idea in constitutional interpretation since the democracy-reinforcing theory of Professor John Hart Ely in Democracy and Distrust.(2) The theory has acquired many disciples.(3) Good reasons exist for its popularity. Professor Lessig is a learned, persuasive, and elegant writer. While complicated in execution, the theory at its core is stated simply: The social facts of the world change and these changes transform the context of legal texts. To be faithful to their original meaning, we must translate the text in light of this new context. The theory draws power by appearing to offer a synthesis of interpretative and noninterpretative methods. It purports to preserve the original understanding of the Constitution, but consults materials unavailable to the Framers to achieve that goal in a world they could hot have fully imagined.

The theory of constitutional translation has the potential to influence courts as well as academics. It is a refined formulation of a widely held intuition: times change and the Constitution must change with them. In Planned Parenthood v. Casey,(4) the plurality opinion justified overruling Lochner v. New York(5) by suggesting that economic changes in the country made substantive due process in the defense of economic freedom no longer tenable.(6) More recently, Justice Kennedy in his concurrence in United States v. Lopez(7) suggested that the federalism of 1789 had to be transformed in light of the substantially greater economic integration that had occurred subsequently.(8) As we will see, Justice Kennedy's observations about federalism parallel those of Professor Lessig, albeit in a much less sophisticated form. Professor Lessig thus may already have realized the fondest dream of all law professors--to be an unacknowledged justice of the Supreme Court.

This Essay offers a few challenges to translation as both a descriptive and normative theory by focusing on the claims of translation that Professor Lessig makes in relation to the New Deal and Progressive Eras. First, many of the facts Professor Lessig claims as changed facts justifying translations do not represent clear changes from the time the Constitution was framed. This undermines the theory as an explanation of novel constitutional constructions. Also, it undercuts the normative value of the theory because it raises doubts about whether judges, and law professors for that matter, are well-positioned to assess the wide-ranging social facts that are necessary inputs for the theory's operation.

Second, the process of translating the Constitution on the basis of changed social facts is an inherently more complex and open-ended task than Professor Lessig acknowledges--so complex and open-ended that it is unsuitable for judges. Considered at their most general level, most important constitutional structures try to achieve a balance between two objectives--encouraging public interest action by the government and discouraging action that is taken to benefit some private interest.(9) Social changes may affect the likelihood of both kinds of action. For instance, reduced information and transportation costs--to take factual changes that perhaps preceded the New Deal--may create a greater need for public interest legislation to address greater integration; however, they may simultaneously create a greater danger of private interest legislation.

That the Constitution characteristically constrains as well as empowers government raises profound problems for the translation theory. The complex consequences of such social changes for the balance between restraint and empowerment suggest that judges would necessarily act more like legislators or indeed constitutional framers themselves if they were to undertake the open-ended inquiries necessary to reequilibrate that balance. The judiciary, however, cannot strike a new balance by simply deferring to Congress when, by hypothesis, one of the principal objectives of the Constitution was to restrain governmental power. The process of translation is therefore incompatible with the judicial function envisioned by the Framers.(10)

Third, Professor Lessig's theory takes peculiarly little account of the importance of changing political ideas in constitutional transformation. The Framers of the Constitution proceeded on a vision of human nature that posited that men were self-interested but capable of acts of reciprocity. The United States Constitution thus sharply limited the power of the state and surrounded it with so many checks and balances that zealous men would stalemate each other rather than aggrandize themselves at the expense of other citizens. They created a commercial republic to make self-interest and reciprocity engines a dynamo of invention and innovation.(11)

In contrast with the underlying theory of the original Constitution, social theories with a view of human nature more compatible with empowering government have been the intellectual fashion for much of this century.(12) The contests between the political theory underlying the Constitution and these other theories have been the source of political conflict for much of this century.(13) The assault against the intellectual underpinnings of the Constitution gathered strength in the Progressive and New Deal Eras, as social theorists under the influence of European ideas began to believe that a more collectivist state was necessary to make more rational plans for society and to realize human autonomy.(14) As many intellectuals of the time recognized, these ideas did hot represent translations of the Constitution, but instead, bold denials of its core political ideals.(15)

Consequently, I do not believe that Professor Lessig has shown that his translation theory is superior to the view that the New Dears, and indeed the Warren Court's, changing constitutional interpretations simply represent the working out of new social democratic ideas antithetical to the original constitutional design. These theories were given concrete legal form when such constitutional transformations served the purposes of the many interest groups that became stronger since the time of the Framing. Unlike the translation theory, this explanation accounts for the modern Court's willingness to exercise intrusive judicial review on state legislation touching morality, including criminal law, while reducing judicial review on matters of constitutional structure and economic rights.

In contrast, the translation theory has a dilemma: in order to explain the Court's willingness to defer to Congress on federalism, this theory must posit that judges discovered the truth of realism--that judges could discover no neutral principles to police the boundaries of power between the states and federal government.(16) The Court, however, seems to forget that legal discovery when it engages in intrusive review to police the boundaries between governmental power and individual rights.(17) Trying to defend this dual approach as a translation and hot simply as an exercise of unconstrained will, Professor Lessig suggests that both the abnegation of federalism and the intrusive review of individual rights are consistent with the legal culture.(18) This may well be so, but the legal culture is hot an autonomous social fact like the decline in information costs; instead, it is an important constituent of an era's political ideas. Professor Lessig's use of the concept to fill a gap in his theory supports the ideological view of constitutional change.

The systematic failure of Professor Lessig's views as a descriptive theory suggests its dangers as a normative theory of fidelity as well. It underscores how easily judges, and law professors alike, can justify their constructions by referring to changed facts when in reality they are caught up in an intellectual tradition reflecting disagreement with the substantive values that underlie the original Constitution.

1. THE CONTEXTUAL FLAWS OF LITERARY TRANSLATION AS A METAPHOR FOR CONSTITUTIONAL INTERPRETATION

   Before cataloguing some of the particular infidelities of Professor Lessig's version of the New Deal, I raise some general questions about the usefulness of the entire metaphor of linguistic translation as a descriptive and normative theory of the judicial process. To borrow from Professor Lessig's own terminology, one must fully understand context to determine whether the "translation" theory is itself a proper translation of techniques of linguistic interpretation into the political context.(19) Professor Lessig's metaphor suffers from its own problems of context. Separated from its linguistic and literary moorings and placed on the sea of politics, fidelity in translation systematically translates as infidelity.

   First, linguistic translation differs fundamentally from legal translation in the continuity of the confronted contexts. Linguistic translation is a necessity because when faced with two languages, we encounter two dichotomous worlds--for instance, French and English. The social world we inhabit, however, was inherited from that of the Framers. Of course, social innovations occasionally generate hard questions under the Constitution, but the very continuity of our world with that of the Framers helps us address these questions through the incremental and interstitial means of the judicial interpretation recognized by the Framers, focusing on text, analogy, and precedent. This continuity does hot require us to make wholesale translations between worlds as linguistic translation demands.

   Second, and more fundamentally, translation in its ordinary linguistic sense differs from constitutional interpretation because linguistic translation is an enterprise in which the translator, the person whose words are translated, and the audience are engaged in an essentially cooperative enterprise. For example...