Monday, June 24, 2019

Working with What We’ve Got

Guest Blogger

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

Ryan D. Doerfler

Early in Fidelity & Constraint, Larry Lessig recounts McCulloch v. Maryland, the case in which the Supreme Court declared famously that “necessary and proper” means neither necessary nor proper.[1]  As Lessig explains it, although the text of Article I suggests at least a moderately demanding standard for Congress to enact some law aiding in the execution of some enumerated power, as interpreted by Chief Justice Marshall, Congress more or less gets a “free pass” (p. 40).[2]  The reason, according to Lessig, was that to interpret the words “necessary and proper” more naturally would have resulted in a nightmare in terms of judicial administration.  Imagine, Lessig invites, what it would look like for courts to “evaluate which means are ‘really necessary’”:

How would a court make that evaluation? … Would it commission economic studies?  Would it review those studies and then conclude the law was unconstitutional?  What if different judges looked at different studies?  Could some judges conclude that, given their studies, the law was constitutional, even if in light of other studies it was not? (p. 41)

The resulting opinions, Lessig continues, “would inevitably be inconsistent even if all were written in good faith” (id.).  As such, it makes perfect sense that courts would decline to police necessity (let alone propriety) for to do so would only highlight their institutional incompetence and, as a result, cast doubt on courts’ institutional legitimacy.

This sort of interpretation-with-an-eye-to-legitimacy is something Lessig terms fidelity to role.  Lessig contrasts fidelity to role with the more familiar fidelity to meaning – very roughly, interpretive accuracy.  Over the course of Fidelity and Constraint, Lessig argues that one can make sense of most of what the Court has done throughout its history by appeal to these two types of fidelity.  As McCulloch illustrates, fidelity to role and fidelity to meaning can sometimes conflict.  Much of the book is, accordingly, devoted to the Court’s struggle to enforce the best reading of the Constitution while at the same time preserving its authority to do so.
If the tradeoff between legitimacy and accuracy is plainly complicated, interpretive accuracy itself might seem (at least comparatively) simple.  In terms of which reading of the Constitution is best, Lessig describes himself as an “originalist.”  And while originalism may raise difficult or even intractable historical problems, conceptually it is, today, relatively straightforward, requiring something like recovery of original public meaning of constitutional text.[3]  Very quickly, however, one realizes that Lessig’s gloss on originalism is importantly different from, say, Justice Scalia’s or Larry Solum’s.  Building on earlier work theorizing constitutional interpretation as, in some instances, an act of translation, Lessig contrasts what he calls “one-step” and “two-step” originalism.  For one-step originalists like Scalia or Solum, the task of constitutional interpretation consists exclusively of identifying the communicative content expressed by constitutional language.[4]  With “necessary and proper,” for instance, a one-step originalist might ask whether “necessary” meant in 1789 at least roughly what it means today (answer: yes).  Or consider another example: in United States v. Classic, the question before the Court was whether Article I, Section 4’s grant of authority to regulate congressional “Elections” covers the regulation of primaries.  For a one-step originalist, the immediate question is whether, as a matter of conventional usage, “election” referred to primaries at the time of enactment.  Because, however, primaries were unknown at the Founding, a one-step originalist must then ask whether the term as used would naturally extend to this electoral innovation.  As Lessig observes, such an extension would be at least somewhat awkward.  As he puts it, “[t]he consequence of an election is that someone is elected.  Yet the thing about a primary is that no one is elected to anything at all; instead, all a primary does is determine who gets to run …” (p. 65).  Add that Article I, Section 4 refers to “Elections for Senators and Representatives,” and the case for including the selection processes for party nominees looks more awkward still.

So, for a one-step originalist, federal regulation of congressional primaries is at best constitutionally perplexing.  For a two-step originalist, by contrast, the case for the exercise of such authority is easy.  The reason is that, although the two-step originalist begins her inquiry, like the one-step originalist, by identifying the original public meaning of the language at issue (step one), she then proceeds to ask whether, owed to changes in circumstance, deviation from constitutional text—that is, deviation from specific communicative content—would better effectuate that text’s underlying purpose or purposes (step two).  Thus, in Classic, Justice Stone reasoned that insofar as “state law has made the primary an integral part of the procedure of choice,” the “constitutional protection of the integrity of ‘elections’ extends to primary elections” since otherwise Congress would be “left powerless to effect the constitutional purpose” underlying that clause.  In other words, because electoral practice had changed such that “the right to choose a representative” was now effectively “controlled by the primary,” it was more faithful to the spirit or aim of Article I, Section 4 to construe its language more expansively than one would as a matter of ordinary language.

At various points, Lessig appeals to the idea of two-step originalism to make sense of some of the Court’s most controversial or even “reviled” decisions. In discussing the Court’s Lochner-era, for example, Lessig argues that that period’s laissez-faire jurisprudence is best understood as a good-faith effort at translating the Reconstruction Amendments (and Antebellum ideals) to a post-war setting.  As Lessig explains it, those amendments, in addition to abolishing slavery, established a commitment to more abstract values, including neutrality and, less obvious today, the Jeffersonian and later Lincoln Republican ideal of “free labor.”  At a high level of abstraction, to value free labor is to be committed to worker autonomy and self-realization.  More concretely, free labor as understood required ownership of the means of production or, more modestly, the prospect of ascending the social and economic ranks.

As Lessig describes it, postwar economic developments rendered the ideal of free labor untenable as it had been understood.  The vision of a “world of small proprietors and small farmers” had given way to the reality of a “world of age laborers and workers in large factories,” and even the less demanding ideal of class mobility had failed to manifest (p. 112).  Given these changes, legal and political thinkers were left to translate that ideal into new circumstances, with some, as Lessig puts it, focusing on the “free” and others upon the “labor” (p. 115).  The former were, of course, the libertarian thinkers one associates with the Lochner era, emphasizing the worker’s (negative) freedom to contract.[5]  As Lessig insists, it was “certainly a fair reading” of Reconstruction Amendment values “to understand them as blocking the state from interfering with an employee’s choice to work however he wants” (p. 130).  Hence, one needn’t posit judicial bad faith to explain the Court’s invalidation of maximum-hour laws and the like.

Lessig’s effort to rationalize Lochner displays maybe Fidelity and Constraint’s greatest virtue: its commitment to the principle of charity.  As Lessig rightly observes, “condemnation” of anti-canonical cases like Lochner “comes too quickly and too cheaply” in our constitutional discourse (p. 96).  Even if one thinks that such cases are obviously wrong, intellectual integrity demands a thorough understanding both of why they were wrong and, perhaps more importantly, of how a majority of justices could think they were right.  The how Lessig provides might seem naïve at first pass.  As a purely psychological matter, though, motivated reasoning comes easier than willfulness, and the reasoning that Lessig articulates would very likely resonate with turn-of-the-century lawyers assuming the right policy priors (the more cynical reading of Lochner may thus be the naïve one, psychologically speaking).  Given this psychological reality, a commitment to charity also has practical relevance, especially in epistemically polarized times.  As tempting as are accusation of bad faith in legal argument, such accusations are decidedly unlikely to resonate with their targets.  Hence, for liberals looking to engage the Roberts Court or, conversely for conservatives hoping to reach liberal legal thinkers, Fidelity and Constraint is essential reading, both for content and sentiment.[6]

As Lessig acknowledges, two-step originalism is subject to standard objections.  Most familiar, the level of generality at which legislative spirit ought to be identified is hopelessly under-determined – how do we know whether, for example, the Reconstruction Amendments are committed to Jeffersonian free labor or fairness more generally?  Relatedly, formalists – including me – have argued that the necessity of legislative comprise, and, in turn, settling upon means as well as ends calls into doubt the very existence of legislative “spirit” to the extent that it conflicts with “letter.”[7]

Beyond those standard objections, though, the Court’s apparent willingness to engage in translation raises a puzzle for Lessig specifically.  As his discussion of Lochner highlights, the act of translation is, partly for the reasons just mentioned, subject to significant variation.  Setting aside obvious difficulties in identifying which abstract value or values some constitutional provision embodies, if even an agreed upon value such as Jeffersonian free labor can lend itself to a libertarian or collectivist reading, it seems “inevitable” that judicial translations of constitutional text would “be inconsistent even if all were written in good faith.”  But if that were so, why engage in translation at all, given the Court’s alleged commitment to fidelity to role?  Why engage in an interpretive practice that so predictably casts doubt on the existence of law or, at the very least, the Court’s willingness or capacity to identify law?

The answer, according to Lessig, is that translation is the best we can do.  Again quoting Justice Stone in Classic, Lessig explains that “we read [the Constitution’s] words, not as we read legislative codes which are subject to continuous revision,” but instead “as the revelation of the great purposes, which were intended to be achieved” (p. 66).  In other words, because a (our?) constitution cannot be kept up to date through formal amendment, the specific legislative compromises that it embodies inevitably become unsuited to contemporary times.  This leaves interpreters of a constitution a choice: enforce those specific compromises even if no one would agree to them knowing what we know today, or, instead, act as fiduciaries, crafting new compromises in an effort to better achieve the document’s apparent aims.  Even if interpreters are not very good at the latter, one has sympathy with the impulse to try.  If, in some situation, one-step originalism spits out something one knows to be bad, why not go on to step two in the hopes of developing something better? 

Suppose for the moment Lessig is right, and that one-step originalism is hopeless because our constitution’s specifics are hopelessly out of date.  On that assumption, it may be true that two-step originalism is the best that judges can do, at least, that is, if judges are role-bound to act as interpreters of constitutional text.[8]  The question this raises for citizens, though, is whether this is really the best that we can do.  The story that Lessig tells is one of judges making the best of a bad situation.  Again, Lessig tells that story with commendable charity.  But maybe the real takeaway from Fidelity and Constraint is that judges are making the best of a bad situation, which is to say one that citizens ought not to accept.  Fidelity and Constraint is a return for Lessig to his earlier work of making sense of our constitution as written.  More recently, however, Lessig, alongside others like Sandy Levinson, has argued forcefully that our constitution is desperately in need of formal revision.   Placing that more recent work alongside Fidelity and Constraint provides helpful context.  Indeed, Lessig begins Fidelity and Constraint talking about an ambitious reading of Article V.[9]  Whatever one makes of that example, the point is that even if Fidelity and Constraint tells a charitable story, one needn’t understand it as a happy one.

In this respect, Lessig’s work again provides a critical check, this time for formalists.  As Lessig says from the outset, his goal in Fidelity and Constraint is to provide a charitable account of our supreme court’s actual practice.  That actual practice, Lessig insists, involves an inability to stick to constitutional text.  The explanation Lessig provides is, again, charitable and psychologically plausible: it just seems crazy (to judges) to adhere to specifics of a text drafted without attention to our specific historical situation.  There is surely some truth to that explanation.  The question for formalists is what to make of it.  One response, offered by my friend and co-author Will Baude, is to say that, to the extent the Court is deviating from constitutional text, it is engaging in lawless behavior.[10]  But even if that’s right, the fact that the Court seems systematically disposed to lawless behavior should, at a minimum, seem worrisome.

Perhaps the lesson for formalists, then, is to join with Lessig and Levinson in getting our constitution up to date.  Unlike, for example, David Strauss, Lessig understands the judicial role fundamentally as one of law identification as opposed to lawmaking.  It is just that, for Lessig, careful adherence to text is infeasible unless that text is subject to frequent revision.  One can, of course, accept that conditional without going in for two-step originalism.  If Lessig’s psychological explanation is correct, though, it means that no amount of haranguing will give us one-step originalism in practice.  Instead, one-step originalists must work to restore the preconditions for formalism, namely a functioning democracy.[11]

Ryan D. Doerfler is a Professor of Law at the University of Chicago.  You can reach him by email at

[1] At least as construed by the courts.  For reasons that will become apparent, Lessig leaves open that Congress may interpret “necessary and proper” straightforwardly.
[2] Lessig’s words, not Marshall’s.  As Lessig puts it elsewhere, it is enough, under Marshall’s theory, that Congress deem some law “convenient” (p. 40).
[3] As contrasted with, for example, actual founder intention or original expected application.
[4] Constitutional adjudication may require more if apparent communicative content fails to resolve the case at issue.
[5] The latter, the founders of the labor movement.
[6] Lessig’s commitment to charity is all the more valuable given his substantive views.  A more radical reformer than most, Lessig’s continued attempts to engage across partisan lines show that aspiring to an ideologically inclusive discourse is not the same as adopting (or justifying) a middle-ground politics. 
[7] Though, at the same time, “letter” must be read in light of “spirit.”
[8] E.g., David Strauss cites the same shortcomings of attention to the specifics of constitutional language as providing the normative justification for common law constitutionalism.  As Lessig observes, his conception of judging is less ambitious than Strauss’s and, hence, easier to defend.
[9] According to Lessig, Article V would have been understood at the time of enactment as communicating a non-exhaustive list of means by which our constitution may be amended.  Because that reading seems so radical today, Lessig deems it unavailable (for now) given the Court’s commitment to fidelity to role.
[10] The contrasting position is to say that systematic divergence from constitutional text shows that one-step originalism is not “our law,” to use Baude’s phrasing.  In my view, the debate between Baude and Strauss et al. reduces to the difficult jurisprudential question of what the law is when statements by legal officials conflict with non-communicative behavior.  See, e.g., Mikolaj Barczentewicz, The Illuminati Problem and Rules of Recognition.
[11] Increasing congressional gridlock poses an analogous challenge for textualists about statutory interpretation like me.  Insofar as “legislative codes” cease to be “subject to frequent revision,” it is all too predictable that judges will cease hewing closely to legislative texts.

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