WHO IS TO BE MASTER: ACCOUNTING FOR HOW THE SUPREME COURT READS THE AMERICAN CONSTITUTION.

• Date: 22 June 2020
• Author: Leduc, Andre

FIDELITY AND CONSTRAINT: HOW THE SUPREME COURT HAS READ THE AMERICAN CONSTITUTION. By Lawrence Lessig. (*) New York, N.Y.: Oxford University Press. 2019. Pp. xii, 581. $29.95 (hardcover).

"When I use a word," Humpty Dumpty said in rather a scornful tone, "it means just what I choose it to mean--neither more nor less." "The question is," said Alice, "whether you can make words mean so many different things." "The question is," said Humpty Dumpty, "which is to be master--that's all." Lewis Carroll, Through the Looking-Glass American students of the American Constitution can now view the end of Larry Lessig's presidential ambitions with bittersweet regret. (2) With his decision to end the campaign, Lessig has been freed to publish his magisterial account of how the Constitution has been applied by the Supreme Court. While Lessig entertained presidential ambitions, the publication of Fidelity and Constraint would perhaps have given his rivals political ammunition in its original claims, although those claims would have needed to be wrenched out of context to be of such use.

Fidelity and Constraint is big and bold in scope, ambition, richness, range, and depth. (3) The enthusiastic judgments on the dustcover aren't far off. The criticisms offered here reflect my judgment of the importance of the contribution that Lessig has made to our constitutional scholarship. Fidelity and Constraint is an enormous achievement.

Lessig undertakes four important missions. First, he redescribes much of the history of the development of our constitutional doctrine, on the one hand, and the role of the Supreme Court, on the other. He offers a creative reinterpretation of many of the cases in the constitutional canon, (pp. 290-301) Working through key decisions of our constitutional canon and history from Marbury v. Madison, (4) the Slaughterhouse Cases, (5) Plessy v. Ferguson, (6) Schechter Poultry v. United States, (7) and Wickard v. Filhurn, (8) among others, and through the more recent cases extending democratic and personal rights, like Brown v. Board of Education, (9) Lawrence v. Texas, (10) NFIB v. Sebelius, (11) and Obergefell v. Hodges. (12) Lessig offers a comprehensive reinterpretation of that history.

There's no simple way to summarize Lessig's historical account. It describes the interplay of fidelity to, and constraint by, meaning and role and demonstrates the two-step process that translates the historical meaning of the constitutional text into the context of contemporary constitutional cases. In one-step originalism, the judge or constitutional interpreter simply determines what the meaning of a constitutional text was when adopted; in Lessig's words, she asks those who adopted the provision how they would decide the case (p. 64). (13) In what Lessig styles two-step originalism, the linguistic understandings are also determined, but a second step is added, the determination of how those historic understandings should be brought forward and translated into the modern context of the contemporary constitutional case (pp. 66-67). (14) Lessig thus uses this account to show the power of his theoretical account of constitutional decision. Lessig tells his story to challenge the traditional account that opposes the textual constraint championed by the Right and the flexibility demonstrated in the Living Constitution, for example, by the Left (p. 5). (15) Lessig's account emphasizes the creative translations made by the Right and the constraints accepted by the Left (p. 5). Traditionally, of course, the Right has been associated with a conservative, constrained application of the Constitution, and the Left with a flexible, Living Constitution. Assessing the power of this narrative redescription is one of the important challenges for a reader (pp. 439-440). In general, I find Lessig's account persuasive.

Second, Lessig reconceptualizes our understanding of the nature of constitutional interpretation and decision. Lessig builds on his rich earlier work introducing his fundamental concepts of fidelity to meaning, social meaning, contested and uncontested beliefs, constraint, translation, and two-step originalism. (16) Most simply, fidelity to meaning is the goal (and requirement) that courts look to the meaning of the constitutional text as they apply the Constitution to decide constitutional controversies. Lessig also employs the critical concept of fidelity to role, introduced and refined later (pp. 17-18). (17) Again, most simply, fidelity to role is the goal and requirement that courts recognize and respect their judicial role and how that role is perceived in deciding constitutional controversies. While this work reprises his earlier published work, it is both enriched by the deeper historical analysis of Fidelity and Constraint and fundamentally changed by the introduction of the concept of fidelity to role. His conceptual account, unlike many descriptions of our constitutional practice, is infused with an awareness of the contingency of the constitutional decisional process and a recognition that it could have been different (p. 5). (18)

Lessig argues that constitutional adjudication is determined by the two-step originalism that translates the meaning of the historical constitutional texts into the context of contemporary constitutional controversies. Lessig's account of the changing context is not simply a matter of changing technologies in our world; it is a story of changing social knowledge. Our world changes as what we understand or, as Lessig astutely acknowledges, what we think we understand, changes (pp. 153-157). The changing social knowledge and social meaning both creates the requirement for translation and provides the tools by which to make the translation. Translation is informed and constrained by meaning and the institutional role of the courts in our Republic.

Third, as a corollary to these two projects, Lessig juxtaposes his account with that of Bruce Ackerman. (19) Lessig fundamentally revises Ackerman's account and articulates an alternative that captures much of Ackerman's anti-formal insight without endorsing Ackerman's more radical theoretical claims about the history of constitutional amendments (pp. 431-440). On Lessig's theory, our normal processes of adjudication and the determination of the constitutional meanings, through translations, account for much of the constitutional change (pp. 63-67).

Fourth, and perhaps most importantly of all, Lessig defends a normative assessment of this history and process of constitutional adjudication and doctrinal development (pp. 458-459). Lessig's judgment is measured--as he puts it, there are no Herculeses in his story (pp. 422, 452, 458). (20) On balance, the history of our constitutional jurisprudence is a part of our history we can and should be proud of, on the basis that the Court has generally, but not uniformly, advanced equal rights and expanded democracy within the constraints of its role.

This Review defends three theses and sketches a fourth. First, Lessig's historical account is creative and brilliant. It's one that constitutional scholars will have to engage going forward. Second, his reconceptualization of constitutional adjudication and constitutional decision is brilliant and exciting. It is even more brilliant and exciting than Lessig himself understands. Lessig remains enmeshed in the conceptual web of our traditional thinking about some of these questions. The Review suggests how we might cut him free of some of these constraints. Third, the Review explains why Lessig is headed in the right direction in his critique and restatement of Ackerman's history and theory. There is more flux in our normal constitutional practice than Ackerman recognizes and more importance accorded the constitutional text. Fourth, with respect to Lessig's normative account, the Review simply describes an alternative stance that suggests that the normative project of justification is out of place in the kind of project Lessig has undertaken. It's like a judgment about the merits or value of an entire culture popping up in the middle of an ethnographic study.

Lessig's account has generated a great deal of enthusiasm; Jack Balkin's blog Balkinization featured Fidelity and Constraint in a symposium last summer. (21) This book was Lessig's first, but he continued to work on it for a score of years (p. 461). Much of the analysis tracks his earlier published argument, but there are some important refinements, developments, and retrenchment (p. 463 n.2). (22) My focus is generally on the argument and claims in Fidelity and Constraint. Lessig styles this historical account as a matter of how the Court has read the Constitution, but this metaphorical description of constitutional adjudication as reading is perhaps a little misleading. Of that, more later.

Still, there are some puzzles and questions raised by Lessig's work. Most immediate is the significance of the substantial gestation period for the work. It is apparently largely explained by Lessig's insistence that he work through the complex puzzles in our constitutional practice that he so brilliantly unravels. Fidelity and Constraint instantiates the earlier theory more fully within Lessig's historical narrative. With his methodical scholarship, he implicitly calls into question the current conventional pace of scholarly production within the legal academy. (23) Second, the organization of the work and its method, despite Lessig's express attention to methodological issues, raises important questions. Lessig characterizes his account as both a work of constitutional theory and of historical constitutional ethnography (pp. 2-4, 5,422). Lessig leads us through what it was like to face (and decide) the central constitutional cases of our history and to understand that history and evolution. Yet the flavor and aspirations of the work are nevertheless fundamentally normative (pp. 6,458-459). Lessig also...