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.
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 doerfler@uchicago.edu.
[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.