Monday, July 01, 2019

Translation as Constituitive

Mark Graber

A little over a year ago, Sandy Levinson and I published a paper arguing that Donald Trump should not enjoy all the Article II powers of past presidents.  We pointed out that Article II was rooted in background assumptions that the president would be a person of above average intelligence, above average judgment and, most important, considerably above average character.  Donald Trump meets none of the background conditions for full Article II powers.  His intelligence is limited, his judgment is abysmal and he could not pass a character test to be lawyer, doctor or kindergarten aide, much less President of the United States.  Democrats have a worse view of Trump.  Therefore, we concluded, given that Trump did not satisfy the background conditions for full Article II powers, both federal judges and executive branch officials should not treat Trump as vested with full Article II powers.  Although no scholar or commentator has explicitly endorsed our common sense view, we note with some pleasure how, as described in the Muller Report and New York Times, executive branch officials occasionally sabotage Trump’s worst plans and how, as epitomized by the recent decision in the census case, courts are not affording Trump the same degree of deference as past presidents.

Larry Lessig has written a wonderful book defending our interpretive approach as the highest form of originalism.  Lessig powerfully argues that a translation process both describes and justifies judicial practice in the United States for more than two hundred years.  Originalism properly done requires a two step approach.  First, interpreters must identify the original meaning of the text, which can be understood only in light of various background conditions that informed the framer’s drafting decisions.  Second, interpreters must determine whether those background conditions have changed and, if those background conditions have changed, how the text should be properly translated to maintain under new conditions the meaning of the original text.  Some justices who recognize changed background conditions exhibit fidelity to meaning by determining the proper translation of the text.  Others, when any decision will smack more of politics than law, exhibit fidelity to role by permitting elected officials to determine the proper translation.  Levinson/Graber models interpretation as translation.  We began by identifying how Article II powers were rooted in a particular understanding of presidential character.  We then determine that Donald Trump lacks that character.  Finally, we translate Article II to account for a president who exhibits the worse vices of the American character rather than the best virtues.

Fidelity and Constraint: How the Supreme Court Has Read the American Constitution is more than a 450 page defense of Levinson/Graber.  Lessig provides a fabulous walking tour of American constitutionalism.  He demonstrates that both conservatives and liberals treat interpretation as translation.  Conservative decisions placing non-textual limits on federal commerce power faithfully translate the original framing aspiration for a constitution of limited powers at a time when anything and everything has some impact on the national economy.  Liberal decisions on gender equality faithfully translate the framer’s animus against class legislation in light of contemporary understandings that laws restricting women are discriminations rather than rules rooted in human nature.  All participants in separation of powers cases adjust presidential and legislative powers in light of contemporary practices to achieve the balance between the different branches of government the framers believed would best promote deliberation, efficiency and other governance virtues.

While grateful to Lessig for spending so much energy defending our work (and anticipating our Trump essay by more than twenty years), I worry that the principles championed by Fidelity and Constraint also describe those misguided souls who think the Constitution best interpreted as vesting Donald Trump with full Article II powers.  Everyone in the debate over the Constitution of Donald Trump is exhibiting fidelity to meaning.  We, following Charles Fried’s work on contract law, think fidelity to meaning entails translating Article II as not having an implicit “no matter what” clause.  Our misguided critics think fidelity to meaning entails translating “The President shall be Commander-in-Chief of the Army” as “The President shall be Commander-in-Chief of the Army no matter what.”  Everyone is exhibiting fidelity to role.  We think fidelity to role requires courts and members of the executive branch to rein in a non-Publican president.  Our misguided critics think fidelity to role requires courts and members of the executive branch to respect the electorate’s choice and treat Electoral College winners as vested with full Article II powers, no matter what their character and no matter how dubious their Electoral College victory.

These observations suggest that all constitutional interpreters, on and off the court, translate and engage in what Lessig calls two-step originalism.  No constitutional provision has an explicit “no matter what’ provision.  For this reason, all constitutional interpreters must determine whether to translate constitutional provisions as controlling in all possible worlds.  “Every state shall have two Senators no matter what” is just as much a translation as “Every state shall have two Senators provided the territory over which the State maintains jurisdiction remains habitable.”  All constitutional decision makers who interpret constitutional provisions as lacking “no matter what” clauses must determine whether the background conditions that support framing interpretations of that provision remain unchanged.  They must determine, for example, the conditions under which a State remains sufficiently habitable to warrant two Senators, at least one representation and three votes in the Electoral College.  Finally, all constitutional decision makers must determine whether they have the institutional authority to make the translation.  The Supreme Court may decide that whether a state remains habitable is a question for the elected branches of government. Elected officials, in turn, may think that decision best made elsewhere.  In short, what Lessig calls one step originalism is likely to be a decision that a provision should be translated as having a “no matter what” clause, a decision that the background conditions that justified past interpretations of that provision still exist or a decision that the person doing the constitutional interpretation lacks the appropriate institutional credentials to perform the proper translation.  One step-originalists, on this account, are translating as much as multi-step originalists.

The ubiquity of translation suggests that constitutions are better understood as constitutive mechanisms than constraining mechanisms.  Constitutions matter less because they force political actors to do what they otherwise would not do than because they influence what political actors want to do and think they can do.  One point of legal education is to socialize lawyers into certain modes of thinking so that some outcomes seem natural, others out of bounds and still others contestable.  A good law student answering an exam question or judge resolving a case no more thinks about whether parliamentary systems are better than presidential systems than good chess players think about the merits of bishops moving sideways.  The law no more constrains judges than a score constrains musicians.  Persons determining how to interpret the “cruel and unusual” punishment clause or play Beethoven’s Fifth Symphony think only about the options open to them given how legal and musical interpretation is done.  They do not say to themselves, “I would like to do this, but the law/score does not permit those outcomes.”  Rather interpretations inconsistent with the law/score do not occur to the faithful judge/musician.  The same is true for background conditions.  Reality constitutes rather than constrains.  Judges in the nineteenth century were not constrained by the notions that men and women occupied separate spheres that justified different legal treatment.  That was the world view that informed their choices among possible legal alternatives.  Legal thinkers at the twenty-first century are similarly constituted.  No one on the court thinks that women are inherently unsuited to be lawyers.  Their interpretation of the equal rights of women is structured rather than constrained by contemporary notions of gender.

Benjamin Cardozo famously observed, the “great tides and currents which engulf the rest of men do not turn aside in their course and pass judges by.”  Larry Lessig has elaborated on Carodozo’s insight with remarkable elbow grease and sophistication.  The quibble is this review is merely that the “great tides and currents which engulf the rest of men” do not pass any judges by.  Translation is what constitutional decision makers do.  They may choose between better and worse translations and better or worse conceptions of role, but neither judges nor anyone else chooses between translating the constitution and some other mode of interpretation.  Translation, to paraphrase another Balkinization contributor, is all there is.

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