TRANSLATING THE CONSTITUTION.

• Author: Balkin, Jack M.

FIDELITY AND CONSTRAINT: HOW THE SUPREME COURT HAS READ THE AMERICAN CONSTITUTION. By Lawrence Lessig. Oxford and New York: Oxford University Press. 2019. Pp. 459. $29.95.

INTRODUCTION

Fidelity and Constraint: How the Supreme Court Has Read the American Constitution is a dazzling book--crammed full of interesting ideas and a wealth of remarkable reinterpretations of the constitutional canon, and written in an engaging and accessible style. As its subtitle implies, the book is a rational reconstruction of the U.S. Supreme Court's practices of interpretation from the Founding to the present. In this process of rational reconstruction of the Court's work, Lawrence Lessig (1) treats doctrinal developments with charity--some would say excessive charity. Lessig tries to explain, for example, why the post-Reconstruction Court thought that it had to read the Reconstruction Amendments narrowly at the expense of African Americans, why the Lochner-era Court felt it had to protect freedom of contract, and why the same Court felt compelled to strike down Franklin Roosevelt's New Deal programs (pp. 92-94, 130-31, 301, 324-25, 332-34). Lessig explains that the justices did so because they wanted to be faithful to the Constitution's meaning, to their professional role as judges, or to both.

The book makes a descriptive claim that eventually becomes a normative claim. The descriptive claim is that the U.S. Supreme Court has responded to changing circumstances by translating original meaning into new doctrines that may have no basis in the Constitution's text. The justices try to preserve the meaning of the Constitution's text in its original context by producing equivalent meanings in a changed social context. This process of translation is fidelity to meaning (pp. 5, 49-64).

A recurring problem with these translations, Lessig argues, is that they may turn out to conflict with the Court's fidelity to its role as a court of law. Then the justices must sacrifice fidelity to meaning through translation in order to maintain fidelity to role. As a result, the Supreme Court's practice has been shaped by the sometimes competing and sometimes complementary duties of fidelity to meaning and fidelity to role (pp. 18, 43).

Lessig then moves from is to ought. He argues that, in our constitutional tradition, this is an acceptable and appropriate way for the Supreme Court to behave, even if we might quibble about some particular decisions (p. 18).

To elaborate this thesis, Lessig goes from the Founding to the present, offering polished, interesting, and often controversial readings of canonical cases in the Supreme Court's history. His general approach is largely non-accusatory: to understand all is to pardon all. The Court's work may look blameworthy from our present-day perspective, but if you understand the Court's twin duties of fidelity to meaning and fidelity to role, you will understand that in most cases, the justices did the best they could under the circumstances. Often, the best they could do was very unjust by our present-day lights.

The theory of Fidelity and Constraint arose in the context of debates over originalism in the 1990s, but it is not, strictly speaking, a book about originalist theory. Lessig nowhere defends originalism or explains why originalism is the proper or best method of interpretation. He simply starts from the assumption that the justices of the Supreme Court have wanted to be faithful to original meaning and have translated past to present in order to be faithful. In this sense, his argument echoes that of Will Baude and Stephen Sachs, who argue that originalism simply is the law of the American Constitution, (2) although Lessig does not adopt their theory of original-law originalism.

Lessig developed most of the key ideas for Fidelity and Constraint in a series of pathbreaking articles over twenty years ago. (3) Although the historical studies in the book are quite interesting and provocative, little of the central theory in the book has changed from his initial formulations. His concepts of one-step and two-step originalism were worked out in the mid-1990s. As a result, Lessig has relatively little to say about the copious literature on originalist theory that began at the turn of the twenty-first century, a few years after his important articles on fidelity in translation were written.

This Review focuses on three major questions raised by Fidelity and Constraint. Part I asks how Lessig's theory of translation, which asserts fidelity to original meaning, meshes with contemporary versions of originalism. Part II examines Lessig's use of the concept of social meaning to explain and justify many of the Supreme Court's most famous liberal decisions, including Brown v. Board of Education, (4) the sex equality cases, the reproductive rights cases, and the gay rights cases. It shows how Lessig follows in the footsteps of the American Legal Process tradition. Part III asks whether a purely internalist theory of constitutional change like Lessig's is adequate to explain the growth and development of the American Constitution. It argues that Lessig's account could be made stronger by integrating it with a broader focus on history and institutions: in particular, by focusing both on the role of political parties, social movements, and state-building in constitutional change and on the long-term construction of judicial review by the political branches.

1. TRANSLATION AND ORIGINALIST THEORY

   1. What Is Translation?

      A central idea in the book is translation. By translation, Lessig means achieving a rough equivalence of meaning-in-context between two different time periods: "Translation itself is a two-step process. 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 context. This is two-step originalism" (pp. 63-64).

      This formulation does not require that we preserve the original semantic meaning or the original communicative content of the text. Rather, it demands that we preserve the underlying purpose, function, or design behind the text in the new context. Lessig's theory of translation is best understood as the attempt to preserve the Framers' original purposes, or "the Framers' design," described at a fairly abstract level, over time (pp. 66-67, 80, 92).

      Lessig's account of original meaning is orthogonal to most of the current versions of original meaning. It does not attempt to be faithful to what contemporary originalists call the original public meaning (or the original communicative content) of the text, the original methods used to interpret the Constitution, or the original legal meaning of the text. (5) Some translations will deliberately depart from the text and add new features that are not part of the written text in order to preserve the text's original purpose, function, or design. This is how Lessig understands the Old Court's readings during the struggle over the New Deal and the Rehnquist Court's federalism revolution. (6)

      At the same time, Lessig rejects what contemporary originalists call "original understanding" and "original intention" versions of originalism: "Fidelity to meaning asks the Court to read the Constitution in light of the current interpretive context so as to preserve its original meaning. That is different from saying the Court should read the Constitution as the Framers would have. That's the question of the one-step originalist" (p. 212). Instead, "[t]he aim of the two-step originalist is to take what the Framers would have done in their context and to find an equivalent in this context, so as to preserve meaning across contexts" (p. 212). And when preservation is not possible, the goal is "to realize as much of that equivalence as possible" (p. 212). This means, for example, that courts might decide to create new limitations on federal power that are not mentioned in the text in order to preserve spheres of state regulatory authority.

      Translation is also necessary in cases of "Erie-effects." These are situations in which the Framers' purpose or design rests on a conceptual foundation or deep assumption (not merely a change in technology) that is undermined later on (pp. 231-32). When this happens, courts have to decide how best to compensate for the change in ways that will simultaneously further the original purposes of the Constitution while remaining faithful to their role as courts (pp. 251-52). In both of these situations, neither the original public meaning of the text nor the original understanding of the text is sacrosanct. Both may be displaced in order to achieve the best equivalent meaning in the new context.

   2. What Kind of Originalism?

      This discussion shows that there is an important difference between Lessig's conception of translation and those versions of the New Originalism, like my own theory of living originalism, that have a "thin" theory of original meaning. (7) The theory of living originalism argues that where the text uses a standard or principle, we may--and should--take changes in social context into account in applying the standard or principle. (8) This does not change or disregard the text; it applies the text. The theory of living originalism asserts that this practice is required by fidelity to the text itself, because the text uses standards and principles rather than rules, and this reflects a choice by the constitutional designers. (9)

      Along similar lines, Randy Barnett and Evan Bernick argue that when we engage in constitutional construction, we may not depart from the original communicative meaning of the text. (10) We should create constructions that are consistent with the original communicative meaning and that further the spirit, purpose, and function of the constitutional text. (11)

      By contrast, Lessig does not assert that interpreters must apply the same text in new contexts. Sometimes that...