Tuesday, June 25, 2019

The Incompleteness of Fidelity Theory

Guest Blogger

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

Pamela Brandwein

In Fidelity and Constraint, Lawrence Lessig takes up the problem of constitutional change. His goal is to provide “a model that describes the moving parts of American constitutional interpretation” (p. 2) or, as he puts it a few pages later, specify “the dynamic of how doctrine evolves” (p. 4). His argument is that the practice and evolution of “constitutionalism” (p. 5) can be explained and normatively justified with reference to two kinds of judicial fidelity: fidelity to meaning and fidelity to role. Fidelity to meaning, or what he calls two-step originalism, is the process of “translating” an original meaning in a changed historical context. Fidelity to role is the preservation of institutional capacity and institutional position in the wider and changing political arena.

Lessig’s consideration of the Court as an institution and the analytic attention he brings to role fidelity are welcome features of his study of constitutional change. And as the study of institutional change has for generations posed steep challenges for scholars, Lessig takes up quite a formidable task in attempting to explain over two hundred years of constitutionalism and constitutional development.

In my contribution to this Symposium, I confine my remarks to his explanatory claims, and I approach those claims through the lens of political science scholarship on the Court and American Political Development (APD). This is not the political science that Lessig finds lacking – rational choice institutionalism (pp. 4, 5) – but another corner of the discipline.

More specifically, I identify two implicit and general features of Lessig’s theory: (1) his Court-centered account of constitutionalism and constitutional change; and (2) his treatment of the Court as a fixed institution, by which I mean his treatment of fidelity (meaning and role) as the sole and unchanging mechanisms of constitutional development. In that regard, I discuss his formulation of politicization (or perceptions of the Court as “political”) as the trigger for judicial shifts.

I call attention to these features in order to engage a matter Lessig invites, namely, the question of whether his theory is falsifiable. He asks, “Is there a way in which [his account] could be proven wrong?” (p. 3). He acknowledges that his account might be incomplete, but in a specific sense: “going forward, one might see decisions by the Supreme Court that are inconsistent with what the theory would predict…[a]nd that inconsistency, in turn, will demonstrate either that the theory is incomplete or that the Court is changing its practice” (p. 4). Incompleteness, in other words, is for Lessig something that might be revealed only in relation to future Court decisions, but not in relation to constitutional change as it has happened thus far. In addition, he requests from readers that they assume the very best of the justices and grant the “principle of charity” (p. 4).

I’m (mostly) happy to grant the principle of charity, and there is much to recommend in Lessig’s account when it is approached at the level of the case (or cluster of cases). Here, however, my goal will be to draw on studies in political science to show how, at the level of theory (or model), it is incomplete as an explanation of constitutional development thus far.

Importantly, the studies on which I draw illuminate dynamics of constitutionalism and constitutional change that do not seem to readily fit into his model. Saying the model is incomplete, however, is different from saying the model is by that means falsified, by which I mean his theory is unable to accommodate these dynamics. Falsification is made difficult because the boundaries around his two explanatory categories (two-step originalism and role fidelity) remain stylized and unclear. These boundaries, therefore, must be more clearly delimited before we can say if fidelity theory is falsifiable. Differently put, the identification of various ways in which fidelity theory appears incomplete is (necessarily) preliminary to any possible falsification. At the same time, any effort to show that two-step originalism and role fidelity can accommodate the dynamics I canvas here risks making those categories so broad that they lose their explanatory power.

Let me now elaborate a series of ways in which I see fidelity theory as incomplete. My discussion will shuttle back and forth between the level of the case (or cluster of cases) and the level of the model.

To begin, when I say Lessig’s account is Court-centered, I do not mean that he ignores what the other branches of government are doing. Plainly, he does not, and presidents like Jefferson, FDR, and Reagan play important roles in his account. Political contexts of other kinds are considered as well. But in his account of constitutional change, only the Court is a constitutional interpreter and the history of constitutionalism and constitutional change is the history of Supreme Court decisions (see his interchangeable use of these terms, pp. 2-6). This may seem a natural approach to some readers of this post. But studies in political science have identified significant instances in which constitutional development has occurred through inter-branch dynamics (e.g., President-Court; Congress-President; Congress-Court) and it is not clear how these constitutive dynamics might fit into Lessig’s model.

For example, Keith Whittington’s study, Political Foundations of Judicial Supremacy, combines Edward Corwin’s departmentalism (wherein each branch of government has the authority and responsibility to interpret the Constitution in the performance of duty) with Stephen Skowronek’s typology of presidents (in The Politics Presidents Make), which distinguishes among “reconstructive,” “affiliated,” and “pre-emptive” presidents. Melding Corwin and Skowronek to show how reconstructive presidents like Lincoln and FDR remade the inherited political-constitutional order and established their own constitutional vision by, in part, politicizing particular Court decisions, Whittington offers an analysis that bears on Lessig’s Court-centeredness and his treatment of politicization (as a constraint on justices, only).

Discussing the Court-Packing Plan, Lessig emphasizes FDR’s efforts to politicize the Court (p. 164). Lessig likewise treats politicization (or the perception of the Court as “political”) as something that justices avoid in the service of fidelity, as that perception would “undermine the character of the Court as a judicial body” (p. 455). Whittington illuminates reconstructive presidents as first-order constitutional interpreters who are positioned to remake constitutionalism and do so through a variety of means. FDR succeeded in that respect (even if Barry Cushman’s no-switch analysis of Justice Roberts is correct). Lincoln too succeeded with his politicization of Dred Scott, a decision Lessig does not treat except to say it was an “important blunder” (p. 100). Lincoln, after all, politicized Dred Scott not to move Taney Court justices but to help authorize “a new birth of freedom.”

Whittington’s Lincoln-FDR comparison makes clear that politicization is a technique used by reconstructive presidents to reorganize the political-constitutional order—a technique that works not simply by constraining justices. Even assuming that FDR’s tactics moved justices, Lessig’s account of politicization is incomplete, as politicization can be shown to work in more than one way (enabling, as well as constraining) in shaping constitutional development. Moreover, since politicization as a technique for remaking the constitutional order is not in the toolkit of every president – the office of the presidency doesn’t provide that technique to all presidents – the form of President-Court interaction emerges out of specific historical circumstances. The dynamic, in other words, is not a constant in the constitutional field.

Likewise, “affiliated” presidents have specific influences on constitutionalism. Whittington makes clear that there must be political reasons for political actors to accept the Court as the ultimate interpreter of the Constitution. And as he shows, presidents affiliated with a dominant regime have buttressed the Court as the ultimate interpreter, even if the Court didn’t always rule the way they might have preferred. While Lessig treats Marshall’s opinion in Marbury v. Madison as a deft move to establish judicial review amidst potential challenges by Jeffersonians, Whittington would remind us that the Court cannot “bootstrap” its way to the status as the ultimate interpreter. The necessity of political support for the Court as the ultimate interpreter must be captured by fidelity theory, and it is unclear how that might be accomplished given the Court-centeredness of the model.

Thus when it comes to “reconstructive” presidents establishing their own constitutional vision and “affiliated” presidents providing political bedrock for the Court as the ultimate interpreter, there is an essential historicity to the influence of presidents on constitutional development. Here we arrive at my two-fold point about the model: because fidelity theory is Court-centered and because the Presidency-Court relationship has different impacts over time, it is uncertain how Lessig’s theory might account (to adapt Skowronek’s title) for the constitutional politics presidents make.

At the level of the case, Lessig without question offers persuasive and valuable discussion. For example, he draws on the work of Barry Cushman to make a convincing argument that role fidelity was in play with regard to Justice Jackson in Wickard v. Filburn. Faced with an integrated national economy and with distinctions in commerce clause doctrine that in his (Jackson’s) view could no longer be applied in a principled manner, Jackson gave up on a decades-long judicial enterprise and handed the job of economic regulation to the political branches and the electoral process. Jackson’s memos provide direct evidence that he valued principled decision-making as a requirement of his role, and Frankfurter’s 1946 retreat in New York v. United States (p.176) provides additional evidence on that score.

Indeed, there are many other cases in constitutional history where role fidelity might be said to be operative, though direct evidence of “internal” role fidelity is hard to come by. Evidence of “external” role fidelity (the felt pressure of political context) is more common. Joel Grossman offered an interpretation of Korematsu v. United States in which he argued that the justices either wanted to reach the result (there is evidence in the 1950s of anti-Japanese sentiment by Justice Black, which suggests the principle of charity is not always warranted) or felt they had to distort the facts about national security (given across-the-board political support for internment) to preserve their own institutional position.

And so at the case level, attributions of fidelity may be quite convincing. But at the model level, again, there are numerous features of constitutional development that do not easily fit into the model.

That dual assessment pertains to Lessig’s extended application of fidelity theory to my own study, Rethinking the Judicial Settlement of Reconstruction. In that book, I argue that standard wisdom about the Court’s abandonment of blacks (with “state action” doctrine as the fatal blow) is wrong. I recover a lost jurisprudence in which rights-protective elements pertaining to physical security and voting (but not public accommodations) were elaborated by Court justices in 1874 and revived by them in the 1880s, even as massive Southern violence, a steep and prolonged economic depression, inadequate funding and bureaucracy, and a Republican Party in transition combined to leave that jurisprudence insufficiently institutionalized and vulnerable.

Lessig finds evidence of role fidelity in my interpretation of the 1876 Cruikshank opinion, wherein I argue that the Court in 1876 spoke in “shorthand” – indicating to Republicans (should they win the upcoming election, which looked doubtful in the context of the steep depression) that prosecutions under the Enforcement Act could continue if indictments were correctly drawn. That “shorthand,” I propose, also protected the Court’s institutional position should Democrats win (which looked likely, as Democrats had captured the House in 1874). Observing that my interpretation is testable, Lessig concludes that “the data support [my] account” (p. 316), for as I show, a Republican electoral resurgence in 1880 (after the depression lifted) was accompanied by revived voting rights enforcement using the voting rights theory that traces back to Cruikshank. Thus fastening on the 1876 decision and 1880s upturn in voting rights enforcement, which should not have been possible if the standard wisdom were correct, Lessig presents my work on the 1876 opinion and its aftermath as evidence of Republican political weakness setting limits on the Court (role fidelity).

At the same time, the tandem process by which the Court and the Justice Department worked to authorize voting rights theory remains difficult for fidelity theory to explain. That tandem effort produced the unanimous Yarbrough decision of 1884, which sent Klansmen to jail under, in part, the Fifteenth Amendment, and it is uncertain how (Court-centered) fidelity theory can accommodate that joint process.

Likewise, my legal-historical interpretation of state action doctrine, which ties Yarbrough to the “shorthand” in Cruikshank, rests on my analysis in Rethinking of a crucial distinction, between natural rights and created rights, which I identify and trace in Justice Bradley’s 1874 circuit court opinion in Cruikshank. As I show, Bradley used that distinction to lay out the rights/remedies “logic” for natural and created rights and thereby build a coordinated theory of the Reconstruction Amendments, which included the all-important understanding of the Fifteenth Amendment (used in Yarbrough) as “creating” a right.

Lessig tracks my analysis of the significance and logic of the natural/created rights distinction for Reconstruction era justices. Following my tracing of Bradley’s 1874 opinion, especially with regard to the Fifteenth Amendment, Lessig relies on it for a detailed example of two-step originalism, perhaps the most evidentiary-based example of two-step originalism in his book.

Had Lessig taken it further, his reliance on my argument about the significance and logic of the natural/created rights distinction would have brought him to another feature of constitutional development that appears difficult to capture with fidelity theory, namely, the process by which the natural/created rights distinction and its associated voting rights theory was “lost” to modern observers. As Lessig finds persuasive my voting rights theory of Cruikshank, the task of explaining the institutional establishment of a distorted account of Cruikshank (and the Civil Rights Cases) presents itself. Accounting for the ways in which distorted legal-historical knowledge about state action doctrine has shaped constitutional development, a point I elaborate in Rethinking, is a necessary challenge for fidelity theory.

Likewise appearing as a puzzle for fidelity theory are the changing mechanisms of judicial entrenchment—changes which suggest that the Court is not a fixed institution. Relevant in that regard is a study by Steven Teles on the rise of legal conservatism. Offering a critique of Robert Dahl, who in 1957 famously posited presidential elections/judicial appointments as the (unchanging) mechanism of judicial “clearing,” Teles traces the establishment of new mechanisms of judicial entrenchment.

More specifically, Teles demonstrates that elections and appointments did not, by themselves, achieve the constitutional entrenchment sought by conservative and libertarian intellectual and network entrepreneurs in the 1980s. The Horowitz Report and conservative network entrepreneurs like Dan Burt argued that getting Reagan justices on the Court was not enough. Liberal institutions controlled the education and pipeline of jurists, and conservative and libertarian actors who thought that was a problem turned to institution-building of their own. The Federalist Society was a product, in part, of that effort. As Lessig theorizes two-step originalism and role fidelity as “judicial,” it would helpful to know how fidelity theory might take account of the new institutional foundations of two-step originalism on the Rehnquist and Roberts Courts. Again, the Court-centered and fixed character of fidelity theory appears unduly narrow.

In this regard, Lessig explains affirmative action decisions as a function of judicial confrontation with “a fundamental ambiguity in the trigger for heightened scrutiny” (p. 375). There is ambiguity about the meaning of “racial inclusion,” he argues, and the affirmative action decisions make room for that ambiguity. Lessig is clearly right that there is disagreement about the meaning of racial inclusion. However, there is a history to contestation over the meaning of racial inclusion and the new institutional mechanisms of judicial entrenchment traced by Teles have played a significant role in elaborating “racial balancing” and “colorblindness” as constitutional constructs. As these constructs now find expression in constitutionalism, it is important to know how fidelity theory might take account of these influences.

Relatedly, Charles Epp has identified a key assumption in scholarship on legal change, namely, that the resources necessary to support litigation are readily generated when social meanings shift. This assumption is built into Lessig’s discussion of constitutional change on the “left” and “right.” Indeed, the assumption identified by Epp is built into Lessig’s theorization of two-step originalism. But that assumption does not hold up, and so it’s unclear how resource mobilization can be figured into fidelity theory.

On the “right,” as shown by Teles, the resources necessary to support conservative and libertarian litigation from Reagan forward were not easily generated. It took time, money, and false starts for public interest law firms like the Center for Individual Rights and the Institute for Justice to coalesce. The Center for Individual Rights, for example, brought key challenges to affirmative action.

Even during the Civil Rights era, there was a struggle to generate resources for equality-based litigation, as demonstrated by Sean Farhang in The Litigation State. Farhang traces the creation and impact of Congress’s private statutory enforcement regime, i.e., the fee-shifting provisions of the Civil Rights Act of 1964. As Farhang shows, Northern Democratic congressmen wanted an EEOC modeled on the NLRB, but Republicans balked. The Republicans, willing to compromise, extracted as their price for supporting the Civil Rights Act (and breaking the Southern Democratic filibuster) a private civil rights enforcement regime, which appeared at the time to be a weak enforcement mechanism. Agreeing to fee-shifting provisions and to shifting rule articulation to the federal courts, Republicans signed onto a private civil rights enforcement regime that produced, among other decisions, McDonnell Douglas v. Green (1973), a landmark employment discrimination case under Title VII. For 1964 congressional Republicans, the major impacts of the private civil rights enforcement regime were an unintended consequence.

Lessig discusses neither McDonnell Douglas nor early Title VII decisions such as Griggs v. Duke Power (1971) and United Steelworkers v. Weber (1979), where the Court exercised its rule articulation function. But one wonders how two-step originalism might explain the inter-branch dynamics that generated the resources necessary to support early Title VII doctrine. Farhang’s study reveals the mechanisms of equality jurisprudence as variable and historically contingent, and studies of Congress-Court interaction by Mark Graber (“The Nonmajoritarian Difficulty”) and George Lovell (Legislative Deferrals) further illuminate how Congress-Court interaction has shaped constitutional change. We are back, in other words, to the multiple and changing mechanisms of constitutional development, which seem to go beyond two-step originalism and role fidelity.

In sum, a substantial body of political science scholarship strikes out in many different directions in explaining constitutionalism and constitutional change, and we are left with many questions about how Lessig’s theory might take account of that work. These studies likewise suggest ways in which fidelity theory might be proven too narrow, but the boundaries of Lessig’s explanatory categories must first be more clearly demarcated.

Pamela Brandwein is Professor of Political Science at the University of Michigan. You can reach her by e-mail at pbrand at

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