Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Corey Brettschneider corey_brettschneider at brown.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Jonathan Hafetz jonathan.hafetz at shu.edu
Jeremy Kessler jkessler at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at yu.edu
Rick Pildes rick.pildes at nyu.edu
David Pozen dpozen at law.columbia.edu
Richard Primus raprimus at umich.edu
K. Sabeel Rahmansabeel.rahman at brooklaw.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
David Super david.super at law.georgetown.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Nelson Tebbe nelson.tebbe at brooklaw.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
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.)
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.
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.
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.
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).
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.
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?
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?"
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?
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?)
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
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).
wait. Here's another way to look at it.
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
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
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
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.
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.
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.
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.
for “Normal” People
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.
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
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)
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.
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.
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.)
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.
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.
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)
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.
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.
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.
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.
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?”
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
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?
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.
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
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.
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!)
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.
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.
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.
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.)
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.
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.
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.
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).
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.