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 umich.edu