Friday, June 28, 2019

“It is emphatically the province and duty of the judicial department to say what the social meaning is.”


For the symposium on Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019).

Fidelity and Constraint is a dazzling book-- crammed full of interesting ideas and a wealth of remarkable reinterpretations of the Constitutional canon-- written in an engaging and accessible style.

There is so much packed into this book, in fact, that I will not be able to discuss all of its key ideas in a single blog post. Instead, I will focus in some depth on a few of the book's most interesting and provocative theoretical claims, which revolve around Lessig's master concept of social meaning.

The book argues that the Justices of the U.S. Supreme Court attempt to achieve fidelity to meaning in changed circumstances consistent with fidelity to their role as judges.  One way in which they do this is through translations--although it may turn out  later on that the translations themselves conflict with fidelity to role.  When that happens, judges must sacrifice fidelity to meaning (through translation) in order to maintain fidelity to role.

The concept of translation is connected to a still more basic idea in Lessig's thought-- the idea of social meaning. In particular, Lessig argues that judges are authorized to translate the Constitution (for example, the Fourteenth Amendment) when the social meaning of existing practices becomes contested and the conflict over social meanings becomes foregrounded. This is how Lessig explains the Supreme Court's decisions in Brown v. Board of Education, the modern sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig groups all of these decisions together as  examples of "translation from the Left." (There are other kinds of translations in the book, too many to discuss in this blog post.)

Here's the basic argument: Take an older practice: segregation, sex discrimination, suppression of homosexuality, criminalization of reproductive rights. For many years this practice is not contested. "Normal" people (Lessig's term, not mine) think it's obvious that there is no discrimination or abridgment of a fundamental right going on, and they also think that other "normal" people agree with them.

Now imagine that the social meaning of the practice becomes contested, so that "normal" people realize that other "normal" people disagree about whether the practice is discrimination or the abridgment of a fundamental right. (That is, a conflict about social meanings which may not have existed or may have existed only in the background now becomes foregrounded.) When the social meaning of an older practice becomes contested in this way, justifications for the practice also become contested. They can no longer be taken as presumptively acceptable. When this happens, Lessig argues, courts have a duty to exercise judicial review to protect liberty and equality.  They must translate past to present.

This is how Lessig justifies Brown v. Board of Education. Before World War II, most "normal" (there's that word again) people thought that segregation was not discrimination. (p. 357) After World War II, the social meaning of segregation changed. The social meaning of segregation had become contested and this change was foregrounded. Many people now believed that segregation was discrimination and other people understood that they felt this way.

Lessig continues: “If the segregation is discrimination, then it must go unless it can be justified. But if that justification is contested, then the segregation cannot be justified. The very act of affirming the contested justification would trigger fidelity to role.” (p. 358). That is, Lessig argues that refusing to exercise judicial review and protect equality would violate the Court’s institutional role. As Lessig explains: “Once a line is seen as violating equality, the Court must decide whether or not to accept the justification for that inequality. Yet if that justification itself is contested, then for the Court to accept it would be for the Court to take a side in that contest. Depending on the nature of that contest, to take a side could conflict fundamentally with the conception of the Court as a court. Justices on their own could have one view or another. But if the Court engages in that contest, it threatens its own institutional independence.” (pp. 358-59).

And here’s how the argument works in sexual autonomy cases like Griswold v. Connecticut or Roe v. Wade: When it becomes contested as a matter of social meaning whether a liberty is fundamental (such as contraception or abortion) the Court must step in to protect the liberty: “Once viewed as fundamental ... the burden shifts to the state to justify its infringement. But that means that the contestability of any justification renders the justification insufficient.” (p. 392)

This argument seems puzzling for three reasons.

First, when social meaning becomes contested, so that reasonable people disagree about what is going on, why isn't this precisely the moment when judges should defer to the political process?

Second, why is refusing to exercise judicial review "taking a side" in a dispute about whether a practice is justified? Why wouldn't judicial intervention involve the courts "taking a side?"

Third, social meaning is never completely univocal. Who is to say when social meaning has become sufficiently contested that judges should translate into new guarantees of liberty and equality?

These questions lead to Lessig's second claim. He argues that when social meaning becomes contested, we cannot rely on the political process to recognize and protect new rights because the political process is not well-designed to make principled judgments about these issues. As he explains:
[R]egardless of whether one believes ordinary people in a properly constituted process could come to a similar result, it’s fairly clear that an ordinary democratic process through elections would not. Again, that view does not depend upon believing that people are incapable of answering these questions. It depends instead upon a judgment about what such a process produces. Whatever it produces, it is not the reasoned judgment that the defense of civil rights depends upon. It is not the balance and reasoning that the consistent defense of fundamental ideals relies upon. (p. 449) 
Instead, Lessig argues that judges are better equipped than ordinary citizens--or elected their representatives--to recognize that social meaning has become contested and to act on these changes in social meaning in a principled way. (pp. 449-51).  Compared to the democratic political process, Lessig argues, "courts [are] the better institution to track the evolution of social meanings." (p. 452)

But the argument still seems puzzling. Who in the world thinks that Anthony Kennedy is an expert on social meaning? Wouldn't an anthropologist, or an advertising executive, be more competent? Why Anthony Kennedy and not Clifford Gertz or Don Draper?

And why does judicial activism become justified as soon as social meaning becomes contested? Why does the point at which a Justice thinks that reasonable people now disagree about whether denial of same-sex marriage is discrimination or an abridgment of liberty become the point at which the Court should mandate same-sex marriage throughout the nation?  (Why shouldn't the Court have to wait until it's clear that almost all "normal" people agree on the social meaning?)

Lessig's argument seems to be missing a crucial step. It can't be enough that a judge understands that reasonable people disagree about the social meaning of excluding same-sex couples from marriage. The judge must also think that the practice actually violates liberty or equality. For if the judge doesn't think that denying same sex couples the right to marry is unjustified discrimination, then the fact that people disagree is an excellent reason to leave the question to politics. Failing to intervene shouldn't--at least in that judge's eyes--threaten the Court's institutional role. I am not sure whether Lessig would accept this friendly amendment, but if he doesn't believe this, his argument does not seem very persuasive.

But even if we tweak the argument in the way I have suggested, it still looks a bit strange. Why should judges, of all people, decide when social meaning is sufficiently contested and what the correct understanding of a social practice is? (p. 447-452). To paraphrase John Marshall, Lessig seems to be saying that “It is emphatically the province and duty of the judicial department to say what the social meaning is.”

And indeed, that is what he says: "My positive claim has been that in fact, our tradition has allowed the Supreme Court a jurisdiction to say what the social meaning is." (p. 447).


But wait. Here's another way to look at it.

Suppose that we translate (I use the word advisedly) all of Lessig's arguments about social meaning into a much older language of American legal thought: the language of American Legal Process. Then the argument would look something like this:

Judges should not protect new rights and liberties where reasonable people agree that there is no problem of discrimination or abridgment of a fundamental right. But when judges become convinced that fundamental rights and liberties are at stake-- even if not everyone agrees with them--they have a duty to protect these rights and liberties in a principled fashion. That is because the political process is often unable to recognize violations of liberty and equality and to protect them in an appropriate way according to principles of constitutional law that will apply not only in this case, but in other cases as well. Only the courts, because of their particular institutional configuration, have the ability to articulate principled justifications and doctrines to protect liberty and equality.

Sound familiar? This is essentially the view of mid-century Legal Process scholars like Alexander Bickel, Henry Hart, Albert Sacks, and Herbert Wechsler. It is also the view of Ronald Dworkin, who agreed with Legal Process scholars that the courts, in contrast to legislatures, are the "forum of principle." In addition, Legal Process theorists argued that judges had the ability to observe the widely shared principles and ethical commitments of the society in which they lived and restate these commitments and values in terms of legal principles that apply generally, and not merely to the benefit of a particular group in society. (This is the famous idea of "neutral principles" of constitutional law).

Lessig is giving us the arguments of the Legal Process school dressed up in the language of social meaning. Indeed, when he comes to his discussion of fidelity to judicial role, he essentially restates familiar Legal Process ideas about administrability and avoiding the appearance of political judging.

This connection to the Legal Process tradition is not, in and of itself, a criticism of Lessig. Rather, it is a way of understanding what this book is really about. Strip away the fancy talk about social meanings and what you have is a contribution to a familiar tradition of constitutional theory, one which is largely internalist in its ambitions.

Lessig and the legal process scholars who preceded him had two things in common. First, they had absorbed the lessons of legal realism and they recognized that it was difficult to get consensus on questions of value. Second, although they respected social science, they understood that they themselves were not scientists. They wanted to offer an internalist account of what judges should do in the face of disputes about questions of value. For the Legal Process scholars, the idea was to look for modes of reasoning that judges could reasonably employ, that leveraged judges' capacities as legal professionals, and that would allow judges to sidestep difficult and contested questions of value--or turn them into other kinds of questions that judges could answer in ways that the country would find legitimate and appropriate to the judicial role. Hence these scholars' focus on neutral principles, institutional settlement, and the reasoned elaboration of the law.

Lessig's resort to social meaning is his way of dealing with these age-old problems of judicial review. Instead of deciding whose values are really good or bad, really right or wrong, judges should look to social phenomena--in this case, social meanings--which are inter-subjectively shared by many people in society. And because they are inter-subjectively shared, judges are in just as good a position as ordinary people to understand them. Better, in fact, because judges are isolated from everyday political contest and so they can act in a principled fashion and won't be hampered by the need for political compromise and tempted by the desire to score political points.

Needless to say, if you weren't convinced by how Legal Process scholars like Hart, Bickel and Wechsler solved these problems, you won't be convinced by Lessig's solution either. And conversely, if you are attracted to Legal Process solutions to these questions, you will find a lot to like in Lessig's approach, although you will wonder what the use of the term "social meaning" adds to the analysis. After all, you might think, if we are going to be internalist, let's be internalist and not confuse the issue by invoking social science. Of course, one might respond that Lessig's notion of "social meaning" isn't really meant as a claim about social science at all. It is a judge's view of social meaning, which need not correspond to what social scientists would or could measure.

This brings me to a second point about Lessig's use of social meaning. His concept of contested and uncontested social meanings (as well as his concept of foregrounded and backgrounded social meanings) is also not really meant as a social scientific account. Rather, it is the way that social meaning appears to judges and their elite audiences. The tell-tale sign is Lessig's use of the word "normal," to which I now turn.

A Constitution for “Normal” People

Lessig's arguments about translation seem to turn on a distinction between contested and uncontested social meanings (as well as backgrounded and foregrounded meanings). But that distinction creates a number of puzzles.

First, cultures are not monoliths; they are diverse. That means that social meaning is always contested. And that includes social meanings about whether there is discrimination and whether fundamental liberties have been abridged. If so, Lessig’s argument about when translation is justified/required may prove too much.

Lessig is well aware of this fact. He solves the problem in two ways. The first is by distinguishing between what is foregrounded and what is backgrounded. But the second, and more important way of dealing with the problem is by maintaining that social meaning is contested only when “normal” people think it is contested:  “By ‘contested’ I mean issues that normal people think normal people can disagree about....I’m not saying that something is contested merely because people, on average or even frequently, contest it. I’m saying it’s contested because within a particular social context, people understand that normal people can disagree about it. The statement isn’t a prediction of how people would vote; it is instead a prediction about how deviation would be understood.” (p. 145-46)

This solution leads to still further difficulties.  For one thing, it leads Lessig to very uncomfortable positions about who is “normal” for purposes of the theory.

Take Plessy v. Ferguson. Lessig argues that it was defensible if not correctly decided because in 1896 it was taken for granted that blacks were inferior and that segregation was not discrimination. (pp. 346-47).  But it was quite obvious then--and Lessig himself points this out--that black people did not agree with this view.  And blacks constituted a very significant proportion of the American population.  (In fact, they constituted half of the population of the state of Louisiana in the 1890 Census.)  And not just blacks: some whites also thought that segregation was discrimination.

We can put the point more starkly. After the abolition of slavery, the social meaning of segregation was never uncontested in the United States, if you think that black people are “normal.” But Lessig argues that the social meaning of segregation was not contested in the late nineteenth century--and indeed, not until after World War II. It follows that his view must be that that black people were not considered “normal” at that point in history.  (One gets to the same result through the distinction between foregrounded and backgrounded contestation of social meaning. Black people may have contested the meaning of segregation--a lot--but "normal" people did not notice that they were doing so.)

This raises a more basic question: Not considered normal by whom? Under Lessig’s theory of social meaning, who gets to say whether black people are normal or not? The answer appears to be that the elites from whom judges and Justices are selected get to say who is normal.

As Lessig puts it, “The inferiority of the African race was a truth for the elite of the time, not opinion.” (p. 346) The Court assumed that all reasonable people understood this. What?  Did the Justices not notice John Marshall Harlan waving his hand vigorously? Yes they did, Lessig responds, but “most people” thought his view was “crazy.” (p. 346) In this passage, Lessig is equating the views of "most people" with most elites.  This is not the only time he does this in the book.

The Court did not see the issue of discrimination as contested because the issue was not contested among educated white elites. (Hey, says Harlan, waving vigorously, I’m right here!) It follows from this point that the only people who are “normal” for purposes of the theory are those deemed to be normal (and reasonable) by elites.  (pp. 346-47) Not surprisingly, in these passages, as elsewhere in the book, Lessig moves seamlessly from talking about “most people” to talking about “elites.”  For example, he says that "[n]ormal people saw the appropriateness of race-based segregation....Justice Brown did not need to defend that claim. It was shared by everyone in 1896—including Homer Plessy! Or practically everyone, at least, and certainly almost everyone who mattered to the world of power." (p. 346)

This is one of the most important sleights of hand in the entire book.  Whenever Lessig talks about the Court responding to what “most people” think, he is really talking about the Justices responding to what elites think.

This sleight of hand, however, makes considerable sense sociologically if we are trying to describe why the Justices behave in the way they do, which, after all is a significant part of Lessig's project. (The other part is the claim that these practices are actually legitimate). Neal Devins and Lawrence Baum’s recent book, The Company They Keep, argues that Supreme Court Justices perform before audiences of fellow elites. They care mostly about elite opinion, not the opinion of the general public. When Justices think about “normal” people, or "reasonable" people, therefore, they think about the people whom they interact with on a daily basis and whose opinion they care most about. Those people are well-educated elites and their families, who are also often well-educated elites.

If Devins and Baum are correct, it would follow that--in the Court’s eyes--what “normal” people think about what other “normal” people think turns out to be what elites think about what other “normal” people (i.e., elites) think.

As a descriptive matter, this would explain the results in Brown, Griswold, Roe, the sex equality cases, and the gay rights cases. The Court responded to changes in social meaning (among elites) in just the way that Lessig describes.

It is worth emphasizing, however, that although this explains the results in these cases as a descriptive matter, it does not justify them. Here Justice Scalia might object: “This proves my point: The Court is deciding these cases according to elite opinion. Why should elites be permitted to overturn the views of ordinary Americans?” 

Lessig does not really provide an answer to that question in this book.  That is because he conflates “most people” with “normal people” and “normal people” with the audience for Justices--that is, elites. He does so because the Court itself does so. But again, that explains, rather than justifies, a program of constitutional interpretation.

Lessig attempts to deflect the question by returning to the argument from judicial role--which is also the argument from legal process. It does not matter whether judges are elites--they surely are. What matters is that they are better situated to decide questions of  social meaning than the democratic process. This is essentially Hart and Sacks' principle of institutional settlement. As Lessig puts it, "The epistemological choice thus resolves not just upon whether one believes judges are from an elite or are politically biased. They certainly are both, and that fact is an important concern that must be addressed through proper diversity and humility. The choice resolves as well upon whether one believes that the alternative—the ordinary democratic process, at least as it is now—is capable of fairly evaluating the values at stake at all." (p. 451).

But the social meaning that judges are especially well situated to understand and act upon is elite social meaning. Why should that social meaning be the driver of constitutional interpretation and constitutional change? 

Translation in Polarized Times

Suppose that we accept Lessig’s theory of “contested” social meanings, and suppose that we also accept that courts can and should respond to changes in elite social meaning to protect liberty and equality.  Even so, the argument faces yet another problem, one which Lessig himself is quite aware of, and which he addresses in the final pages of the book.

Lessig’s theory works only if elites usually think alike on a wide range of issues (for example, as they did about race in 1890). His theory presupposes elite consensus as the normal or standard case, so that it becomes possible for elites to recognize that social meaning has become contested. If there was no general consensus among elites, it would make no sense to say that social meanings on a particular question had become contested and that this difference is now foregrounded.

Thus, Lessig’s account relies—as have so many other 20th century theories of constitutional law—on elite consensus.

But today elite opinion is polarized on more and more subjects. While in the past well-educated elites tended to agree more with each other than was true of the rest of the public, the reverse is now the case: Liberal and conservative elites disagree more than non elites do.

Even worse,  the country’s politics is increasingly divided on issues of status and identity--issues that are primarily about questions of social meaning.  Both sides complain loudly that the other side is discriminating against them and violating their fundamental rights: racial equality, sex equality, sexual orientation equality, trans equality, speech rights, religious rights, gun rights, property rights, economic rights. If so, then Lessig’s justification for judicial review will apply to too many things.

Because the two major political parties are facing off over identity and status, elites in both parties recognize that social meaning has become contested on almost all of the issues that they care about.  According to Lessig’s theory, that would seem to offer the Court the opportunity, if not the obligation, to exercise judicial review on all of these subjects. (Indeed, in cases where both sides can make liberty and/or equality arguments, the Court might have an obligation to exercise judicial review in both directions at once!)

This is not the first time this problem has arisen. Here are two examples from periods of high polarization in the nation’s history, one old and one new.

The old example is Dred Scott v. Sandford.  The Jacksonian era is one of increasing elite polarization over slavery.  In 1820 the Missouri Compromise appears to be just that, a compromise between various regional and property interests. By 1857, the compromise seems unbearable to the South, because it shuts Southern settlers out of large parts of valuable federal territory. What once was a reasonable compromise now seems like discrimination to southern elites.  Fortunately for them, Jacksonian Democrats have a majority on the Supreme Court. Justice Catron, in a concurrence, explains that the Missouri Compromise violates “EQUALITY” (he uses all caps), which is one of the first uses of the term in the United States Reports. The Justices of the Supreme Court, attuned to the change in social meanings, strike down the Missouri Compromise under the Due Process Clause.

Lessig calls Dred Scott a “blunder” (p. 100). But why is it a blunder according to his theory? Social meaning had become deeply contested on this issue. It would have violated the Court’s fidelity to role to look the other way and defer to majority will (that is, the majority will of 1820). It would have been “taking sides” between North and South for the Court not to exercise judicial review.

Well, wouldn’t this have been contrary to fidelity to judicial role?  Wouldn’t the Court look too political if it decided the constitutionality of the Missouri Compromise?  Not at all. Mark Graber points out that political elites wanted the Court to resolve this issue and take it out of the hands of politicians. President Buchanan said as much. Yes, Republicans disagreed with the result, but they were hardly the majority party in 1857. To be sure, today we are quite sure that Dred Scott was a terrible failure of the judicial role, but in 1857 it was what political elites wanted from courts. Deciding these kinds of cases was the point of giving courts the power of judicial review. (The example of Dred Scott, by the way, shows the limits of “fidelity to role” arguments, if they are based on judges’ assessments of their role at the time they decide, as opposed to many years later on.)

The contemporary example of the problem is Masterpiece Cakeshop. Jack Phillips argues that requiring him to serve same-sex couples violates his religious liberty.  The state of Colorado argues that it is applying a neutral law. There is no discrimination. In fact, the social meaning of that law is that it is protecting equality for all.

Phillips responds that what the law means to him, and to other conservative Christians, is discrimination against Christians. It demeans them and treats them as uncouth bigots. For many years, the liberal meaning of public accommodations laws was uncontested. Public accommodations laws protected equality. Then the underlying facts changed. The gay rights movement persuaded many jurisdictions to add sexual orientation to the list of forbidden discriminations.  Religious conservatives felt disempowered and discriminated against. They suddenly realized that they were no longer a moral majority. They felt themselves to be a disparaged minority.

Conservative elites understood this. They agreed with the critique. And with that, the social meaning of antidiscrimination laws had become contested, not only among the general public, but more importantly, among elites.  The Supreme Court decided for Phillips on the narrow grounds that the decisionmakers may have been prejudiced against him. But the larger question is whether the Free Exercise Clause should trump public accommodations laws that protect LGBTQ rights. If Lessig’s theory is correct, the Court is certainly entitled to decide the question that way, even if Lessig himself would disagree.

Lessig is not blind to the problem. He sees that polarization threatens to make his theory irrelevant, because he understands that his theory is a “nonpartisan” way of looking at the practice of judicial review: “so deeply have we allowed partisan norms to infect the institution of the judiciary that we don’t even recognize the essentially nonpartisan character of its past. Not that values have been irrelevant or that partisan values have not mattered. But the practice of constitutionalism stood above them, or beyond them, and the effort to keep alive commitments thought fundamental could therefore flourish. That practice will not survive a Court perceived by us all to be political.” (p. 458). 

Lessig is right. His theory is a rational reconstruction of the work of the Supreme Court in a depolarized politics. He is in good company: This is true of most constitutional theories of the 20th century.  If he had finished the book in the late 1990s, the problems that polarization presents for his theory would have been less apparent. But in 2019, it is hard not to notice them.

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