Lawrence Solum


Introduction

Lawrence Lessig's Fidelity and Constraint is an important contribution to American constitutional theory.  Although Lessig packages his ideas as a form of "originalism," a close reading of his book suggests that his enterprise is better understood as a version of "living constitutionalism.  Originalism requires constitutional practice to be consistent with the original meaning of the constitutional text.  Lessig's theory sanctions departures from original meaning in two ways.  First, Lessig maintains that constitutional actors should be guided by two, potentially conflicting, duties of fidelity: fidelity to role and fidelity two text.  Second, Lessig's understanding of interpretation as translation results in a version of fidelity to text that permits departures from the actual communicative content of the text in order to achieve the purposes or functions that the text.  When these two features are combined, the result is a form of living constitutionalism undermines the rule of law and legitimacy values that provide the strongest justifications for constitutional originalism.


Originalism

Originalism is best understood as a family of constitutional theories that affirm two core ideas.  The Fixation Thesis claims that the communicative content of the constitutional text is fixed at the time each provision is framed and ratified.  The Constraint Principle is the conjunction of three limitations on constitutional actors: (1) constitutional practice, including the decision of constitutional cases and issues, must be consistent with the communicative content of the constitutional text; (2) all of the constitutional text (excluding provisions overridden by amendment) must be reflected in constitutional doctrine, and (3) constitutional doctrines must be fairly traceable to the constitutional text.  In other words, constraint requires that the Supreme Court cannot override the constitutional text in the guise of constitutional interpretation and that the Court cannot invent constitutional doctrines that are not grounded in the text.

Although originalists agree on the Fixation Thesis and the Constraint Principle, they disagree on other matters.  The dominant form of originalism is public meaning originalism: the best understanding of original meaning focuses on the content communicated by the text to the public at the time each constitutional provision was framed and ratified.  But there are other views on this issue, including original intentions originalism, original methods originalism, and original law originalism. 

Contemporary originalists also disagree about the interpretation-construction distinction.  Many of the so-called "New Originalists," including Randy Barnett, Keith Whittington, and myself, affirm a distinction between "Interpretation" (discovering the meaning of the text) and "construction" (determining the legal effect given to the text).  To the extent that the communicative content of the constitutional text is underdeterminate (e.g., vague or open textured), the text creates "construction zones" or sets of issues and cases with respect to which the text does not fully specify constitutional doctrine.  In these construction zones, courts will need to devise implementing rules or precisifications that fulfill the purpose of the constitutional provision within the limits provided by the text.  Importantly, there are cases where the constitutional text is determinate; in such cases, the communicative content of the constitutional text suffices to resolve the constitutional issue before the courts.

Is the constitutional theory advanced by Lessig in Fidelity and Constraint a member of the originalist family of theories?  Lessig claims that his theory is a version of what he call’s two-step originalism:

Lessig’s formulation of step two is imprecise.  What does it mean to carry meaning of the text in its original context into its present context?  There are at least two distinct understandings of step two.  Call the first version, “step two as construction.”  On this version of step two, carrying first step meaning into the present context involves fixed meaning (step one) that is then applied to the current context.  Step-two-as-construction would be a member of the originalist family if step two respects the Constraint Principle: this version of Step Two would allow for translation within the construction zone but would not allow for constructions that are inconsistent with the original public meaning of the constitutional text.  Lessig seems to endorse this understanding in the following passage:

If “admissible meanings of” “the Constitution’s words” are original meanings, then step two is consistent with the Constraint Principle, but it is not clear from this passage whether admissible meanings are limited to the original public meaning of the constitutional text.  If Step Two allows for translations that are inconsistent with the original public meaning of the constitutional text, then it sanctions violations of the Constraint Principle—and for this reason, Lessig’s theory would not be a form of originalism.

There is a second possible understanding of step two: call this version “step-two-as-interpretation.”  On this version, the meaning of the constitutional text is not the original meaning: instead, judges would construct a counterfactual meaning, imagining that the constitutional text had been written in the current context.  This version of step two is inconsistent with the Fixation Thesis, and it is not a form of “originalism”—as originalism is usually understood.  Step-two-as-interpretation substitutes a hypothetical counterfactual meaning for the original meaning of the constitutional text.

So, readers of Fidelity and Constraint may wonder whether “two-step originalism” is consistent with the Fixation Thesis and the Constraint Principle.  The beginnings of an answer to this question can be found in Lessig’s account of fidelity.

Conflicting Fidelities

The conventional originalist understanding of the concept of fidelity is that constitutional legitimacy requires judges to adhere to the Constraint Principle.  Judges violate their duty of fidelity to the Constitution, if they engage in constitutional construction that violates the Constraint Principle.  Lessig has a different understanding; he distinguished between “fidelity to meaning and fidelity to role.”  Lessig explains:

Lessig’s argument is ingenious and appealing.  Living constitutionalist judges frequently act in ways that may be explained by the idea of fidelity to judicial role that permits judges to violate the Constraint Principle and update the Constitution to reflect changing values and circumstances.

Despite the appeal of Lessig’s idea of fidelity to role, originalists can and should resist this move.  First and foremost, originalists argue that Lessig has a mistaken understanding of the legitimate role of judges in constitutional cases.  Judges swear an oath to “this Constitution,” the written Constitution of the United States.  Their legitimate role in constitutional cases is bounded by the Constraint Principle: when they override the constitutional text, they step outside the legitimate role of judges.

Second, the Lessig’s argument for his conception of judicial role is primarily based on a description of constitutional practice: Lessig argues that, as a matter of fact, judges acted in conformity with a nonoriginalist conception of judicial rule.  This is a positive claim, but it does not provide a normative justification.  Originalists argue for the Constraint Principle on normative grounds: our conception of legitimate judicial role should not allow for judicial overrides of the original meaning of the constitutional text.

To the extent that Lessig’s conception of fidelity to judicial role allows for violations of the Constraint Principle, his theory is a version of living constitutionalism and not a version of originalism.

There is another difficulty with Lessig’s understanding of fidelity as involving two conflicting duties—one to role and the other to text.  This approach understands fidelity as involing two potentially conflicting duties.  Sometimes these two duties coincide, but on other occasions they will conflict.  This raises the obvious question: what should judges do when their duty of fidelity to the constitutional text conflicts with their duty of fidelity to their institutional role as judges?  It is not completely clear how Lessig would answer this question, but his theory seems to assume that in conflict cases, the duty of fidelity to role overrides the duty of fidelity to text.  But if that is the case, then Lessig’s picture is misleading.  In fact, there is only one duty of fidelity, and that is fidelity to role.  Fidelity to text is merely a subordinate aspect of fidelity to judicial role.

From an originalist perspective, the notion that fidelity to role is the paramount judicial duty turns things upside down.  Judges swear an oath to “this Constitution,” not “the role of judge.”  The Constitution creates the Supreme Court, not vice versa.  The legitmate power of courts and judges is that power conferred by the Constitution, not vice versa.

Two Kinds of Translation

There is another aspect of Lessig’s theory that bears on the question whether “two-step originalism” is really a form of “originalism” as that term is conventionally understood.  Lessig’s uses the idea of translation as a metaphor for interpretation:

This passage is complex.  Much depends on what Lessig means when he uses the word “meaning.”  Originalists understand “meaning” as communicative content—the meaning that was conveyed by the constitutional text in the original context of constitutional interpretation.  But the word “meaning” is ambiguous.  Sometimes we use “meaning” as a synonym for “purpose.”  Other times, we use “meaning” to refer to “effect.”  If Lessig is using “meaning” in its communicative sense, then his view would be a form of originalism, but it is unclear (to me) what sense of “meaning” he intends to employ.

Consider the following additional passage:

In this passage, Lessig seems to recognize the possibility that two-step originalism involves a departure from the communicative content of the constitutional text but argues that such departures nonetheless restore the “Constitution’s meaning to the Framers’ design.” (p. 80)

But what is “the Framers’ design?  At one point, Lessig seems equate “design” with “fundamental principle.” (p. 84), but none of the eleven passages in which the phrase occurs provides a clear explanation.  The word “design” is teleological: the clear implication is that the Framers’ design is a function, goal, or purpose.  If this reading of Lessig is correct, then his theory allows the Supreme Court to override the original meaning of the constitutional text in order to achieve the purpose, goal, or functioning of a constitutional provision.

Familiar Difficulties with Purposivism

As should now be clear, it is not easy to identify the precise content of the theory proposed in Fidelity and Constraint.  If that theory is a version of constitutional purposivism, then it faces some familiar difficulties.  It is far from clear that the Framers or Ratifiers agreed on the purpose, goal, or function associated with at least some provisions of the Constitution.  For example, high Federalists may have believed that the Necessary and Proper Clause and the Preamble should function so as to create plenary and virtually unlimited national legislative power.  Moderate Federalists and others may have understood the goal of enumeration to be confined national power and the preservation of a substantial zone of state power that could not be preempted by the national government.  Moreover, purposes, goals, and functions can be stated in a variety of ways and at different levels of generality.  But in particular cases, different statements of the purpose, goal, or function may have different implications for the outcome of the case.

These familiar difficulties led most originalists to abandon the doctrine of original intent and to focus instead on original public meaning.  The constitutional text itself is stated at a level of generality: some provisions are very concrete and particular; others are abstract and general.  The Framers and Ratifiers agreed on the constitutional text, which has a public meaning.  Although there may have been disagreement about the purposes for which the text was adopted, there was agreement on the words and phrases that made up the constitutional text.

The Normative Implications of Conflicting Fidelities and Purposivist Translation

So far, we have focused on the question whether two-step originalism is properly called “originalism.”  We have seen that a case can be made that Lessig’s theory is a version of nonoriginalist living constitutionalism, but on another understanding his theory is actually a version of the so-called “old originalism,” which we might call “original purposes originalism.”   Either way, more is at stake than the label “originalism.”  Lessig’s moves to fidelity to value, loose translation, and two-step originalism have important normative implications.

The normative implications of two-step originalism can be approached by comparing Lessig’s theory to purposivism as an approach to statutory interpretation.  Like purposivism, two-step originalism must deal with the fact that different judges will have different beliefs about the purpose, goal, or function of various constitutional provisions.  Such beliefs are likely to be influenced by the judges own moral, political, and ideological beliefs.  Progressives and liberals are likely to have an expansive view of the original purpose of Article I, Section 8; conservatives and libertarians may well have a narrower view.  Public meaning originalism cannot eliminate these disagreements, but it can confine them to the construction zone—within the limits imposed by the constitutional text.

The fact of ideologically driven disagreements about purposes, goals, and functioning has implications for the constitutional system.  That system is dynamic, and it involves political actors, especially the President and the Senate.  Once political actors realize that the ideology of judicial nominees will affect the process of two-step originalism, they will have powerful incentives to select Supreme Court Justices whose ideology they favor.  On the Court itself, ideological disagreement among the Justices may result in further politicization.  These dynamic processes can result in a downward spiral of politicization.  Two-step originalism encourages the downward spiral by freeing the Justices from the binding effect of the constitutional text.

Conclusion

Lawrence Lessig's Fidelity and Constraint is an important statement.  It aims for a middle path between an unbounded living constitutionalism and a highly constrained originalism.  The idea of a middle path is attractive, but it may be illusory.  In the actual world, fidelity to role and two-step originalism may loosen the bounds of constraint and thereby undermine the rule of law.

Lawrence Solum is Carmack Waterhouse Professor of Law at Georgetown University Law Center. You can reach him by e-mail at lsolum@gmail.com