Tuesday, August 13, 2019

Lessig replies

Guest Blogger

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

I am grateful to Jack Balkin and the Balkinization blog for the careful and powerful collection of review essays based on my book Fidelity & Constraint (2019). I have perhaps tried to do too much in a single volume. I am eager to engage with these thoughtful and charitable responses to what I have attempted to do.

As the reviews summarize fairly and clearly, my book describes the history of the Supreme Court’s interpretation of our Constitution as a dance between two kinds of fidelity — a fidelity to the meaning of the Constitution, and a fidelity to the role of the courts, the Supreme Court especially, but courts quite generally. These two fidelities often complement each other. They sometimes conflict. My argument is that we can understand the development of the Supreme Court’s doctrine, at least within the fields I’ve described, through the interaction of these two fidelities. These fidelities explain the course of these doctrines. And in the end, as I argue, a practice that respects these two fidelities is justifiable, at least for our constitution, within our tradition.

This framing helps introduce my response to the powerful contribution that Pamela Brandwein has offered. Her work was central to my understanding of the post-Civil War jurisprudence of the Court. More than any other single book, Rethinking the Judicial Settlement of Reconstruction unlocked for me a way of reading both the Court’s actual writing and the presuppositions that clearly guided its thinking. I was therefore grateful that she would participate in this symposium, and I have learned a great deal from her contribution here.

But it is clear I should have done more to set more clearly the frame of its ambition. A subtitle is not an argument, but my ambition in this book is very much expressed in its subtitle: How the Supreme Court has Read the American Constitution. My account is an account of a very particular institution. It is very much not an account of the history of our Constitution generally.

Nor do I believe that it could generalize to be such an account. There is a discipline to judicial reasoning that does not constrain or extend to other critical actors within our constitutional traditions. The Court, to nod to the inspiration of Ronald Dworkin, crafts a chain novel. That practice embeds constraints. No other constitutional actor is so constrained. Presidents are free to turn the nation in whatever direction they want and can; in that turning, there is no demand of consistency with either other Presidents or the constitutional past. (See, for example, the current President). The Constitution, for a President, is politics by other means. We — as both citizens and scholars — can criticize or praise that politics. We can remark how well it coheres with our past or makes possible a “more perfect” future. But fidelity of any sort is alien to its charge. Presidents get to redefine who we are and who we’ve been, sometimes for the better, sometimes not.

So too with political science — either the corner I criticize or the corner Brandwein embraces (American Political Development). What guides these fields of constitutional theory is a different set of disciplines and constraints. As with a presidential account, the salient moving parts are less focused on actor consistency. They are more attuned to power and cultural understanding.
To remark these differences is not to insist on a hierarchy. Indeed, to the contrary, it is to insist there is no hierarchy. I don’t think there’s an über theory of our constitutional tradition. Instead, there will, and should be, many different domains within which theory might serve a domain-specific goal. Each of those theories will be “incomplete,” as Brandwein describes my own, “at the level of theory (or model).” But that, I believe, is a necessity built into the enterprise. There must always be a perspective from which any particular theory is “incomplete.”

And so yes, my account is “Court-centric,” not because I believe that is the dominant or preferred or best way to understand what our Court has done. It is “Court-centric” because it is, again, an account of “How the Supreme Court has Read the American Constitution.” In that account, other institutions have a hugely significant role — whether formal (the presidency), or informal (southern white terrorism). So too do ideas — including forgotten ideas, which explains the mess that state action doctrine has become, and the path (if only the insights Brandwein offers were to become more general) back from that mess. But the enterprise that I’ve tried to engage is an understanding of what our Court has actually done, close to their own understanding of the world and what they’ve done, most charitably read. In that enterprise, “theory” is just a description of the conceptual tools necessary to pattern, or make understandable, the practices across time. If that theory proves useful for parallel enterprises — an APD model of constitutional change, or a Marxist model of constitutional change — that utility is accidental. There may be a deep reason why the moving parts that I’ve identified are useful elsewhere. But whether they are, or why they would be, is far beyond my own understanding.

Thus, for example, I certainly agree that Keith Whittington’s powerful work about the development of judicial supremacy also explores the technique that I describe as “politicization.” And I certainly agree with Whittington and Brandwein that “the Court cannot ‘bootstrap’ its way to the status of the ultimate interpreter.” But my hope was to understand the crafting of that ultimate “status” through the opportunities both afforded to and created by judicial actors. The chessboard was set against Marshall at the moment he confronted Stuart v. Laird and Marbury v. Madison. Powerful political actors had done well placing the pieces on the board. My question focused upon on how the Court then responds, crafting the opportunity for the institution of the Court to grow, rather than, as with Zorkin in Russia, an irresistible invitation for the political branches to crush it.

Finally, and of course, powerful actors play a role that is not theory-pure. The Federalist Society, for example, intervenes to change what seems ordinary, with the consequence that the constraints of the ordinary change. But here too, my theory doesn’t purport to measure the justice of these external constraints. (Though with some — southern white terrorism — the view should be clear.) We have just the constraints.

Lawrence Solum’s critique comes from the opposite extreme. Solum is one of America’s leading theorists of originalism. Along with Randy Barnett, he has crafted perhaps the most sophisticated theory of originalism. He is therefore rightly focused upon the question of whether the theory I have advanced — which I openly call “originalist” (p3) — is, from his perspective, actually “originalist.” And from his perspective, he concludes, rightly, that it is not.

Sophisticated though it is, there are important questions about the elements to Solum’s originalism. As Saul Cornell has argued (and of course many others as well) to the extent that originalists ground their theory on what’s offered as philosophical truth or the truth of historical method, there is much in the actual philosophy and history to raise questions about the theory. The originalists respond to this critique by insisting their theory is a legal theory, grounded in a normative conception of constitutionalism. Much as I have offered my own account as internal to legal practice, not as a contribution to translation theory or history, they too beg forgiveness for gaps between originalism and philosophy.

Yet I fear the sophistication of the enterprise may be misguided. There is a healthy academic inquiry, no doubt, about whether the practice of originalism by judges can be usefully theorized by academics. But the idea that the theory of originalism as articulated by academics can, or even should, guide judges is, in my view, just wrong. There’s a concept in science of a “zeroth-order” approximation of a theory, which, as Geoffrey West describes in Scale (2017) is a theory “in which simplifying assumptions are … made in order to give rough approximations of the exact result.” The work of theorists in this context is to move up the order scale — to first-order, second-order, or n-th-order — theories, which as they progress, get closer and closer to the actual results. My view is that even if academics could move the theory of originalism to a first or second-order theory, we must recognize that judges will live, or operate, with a zeroth-order approximation. And rather than imagine that we’re going to craft a map that will change how judges do their work, the work of interpretive theory, in my view, is to understand the order at which the actual practice happens, and model the practice based on that.

Beyond theory skepticism, however, my response to Solum is more fundamental. From the perspective of fit, the burden of my book is to argue that originalism, at least as Solum describes it, does not describe the actual practice of the Court. Solum seems to concede as much but insists we can’t move from a descriptive account to normative theory. That’s true, in the sense that simply from a descriptive account, one can’t derive a normative theory. But in the Davidsonian/Dworkinian/Ackermanian sense of interpretive theory, fit plus justification is precisely what normative interpretive theory is about. The Supreme Court’s practice has not been originalism in Solum’s sense. I suggest it has been closer to originalism in the sense that I’ve offered. I have not respected the constraints of fixation that Solum argues the rule of law requires. But I’ve offered an account of fidelity to role that embraces a thicker, if more contingent, sense of the rule of law. The constraint of role is limiting in precisely rule of law ways. Not by insisting upon what has never been — fixed and immutable practices and rules — but by taking care, just as the practice of judging becomes politically or democratically most troubling. Within the contested space (as I’ll describe more below), courts retreat; within the uncontested space, courts embrace or accept the uncontested. This is an architecture of constraint, too, though more descriptively accurate than the rule of law conception entailed by Solum’s fixation theory. If it can be normatively justified, then we should consider whether it, as opposed to Solum’s conception of the rule of law, should be the model we embrace — just as I’d argue that the conception of originalism that I am advancing — less fixated on fixation — would be a better, more actual, model of originalism.

That suggestion frames well the question that Sandy Levinson presses in his wide-ranging essay. As he puts it, “why wouldn’t one prefer legal fidelity if there were no side costs?” I share his sense; it this sense precisely that motivates me to embrace the politically complicated label of “originalist.” But in doing so, we should acknowledge the normatively difficult position that often creates. There are people who should be able to run for President who can’t — without any contemporarily justifiable reason (whether that’s AOC or Arnold Schwarzenegger). There is radical inequality in the representation of people in the Senate. There is a persistent failure of the Electoral College to assure a representative President. These are all normative failings of the existing Constitution — which we originalists must acknowledge, and given the unamendability of the Constitution, accept.

But some “failings” (at least relative to how the Constitution would originally have been read) we do not need to accept. Some, that is, we can correct through “translation.” Sandy wonders whether the term is adding understanding to the ordinary concept of “interpretation.” I certainly accept that one schooled in the practice of “interpreting” the Talmud would find little difference between that practice (at least from the Hartman Institute) and anything the United States Supreme Court has done. Yet my experience is that few have as rich a sense of interpretation as students of the Talmud do. And it is my experience as well that the easier way to bring someone to recognize the transformative potential of “translation” committed to “fidelity” is to remind them of the radical transformations that can hide under the cover of “translation,” despite its commitment to fidelity to meaning. As Emily Wilson writes in the Translator’s Note to her extraordinary translation of Homer’s The Odyssey (2018):
I believe we need to rethink the terms in which we talk about translation. My translation is, like all translations, an entirely different text from the original poem. Translation always, necessarily, involves interpretation; there is no such thing as a translation that provides anything like a transparent window through which a reader can see the original. … [Yet] I have taken very seriously the task of understanding the language of the original text as deeply as I can, and working through what Homer may have meant in archaic and classical Greece. I have also taken seriously the task of creating a new and coherent English text, which conveys something of that understanding but operates within an entirely different cultural context.
Here is the recognition of an obligation of fidelity, even while recognizing the necessity of change (“an entirely different text”).

The question of fixation — or better put, stable, and predictable results given relatively clear textual inputs — is brilliantly pressed by Ryan Doerfler. Doerfler is a formalist. He seeks a method of reading that “hew[s] closely to legislative texts.” Yet rather than insisting that that is in fact the practice that we have, Doerfler is refreshingly open to recognizing just how messy and motivated most interpretation is. His essay powerfully restates — in a way that I find more compelling than my own original account — the reason that bending against even clear text is inevitable. A theory must account — or at least, understand — that inevitability, as Doerfler nicely frames it, because a psychological account of that bending is both more edifying and understandable than one that posits simple wilfulness. It’s possible, of course, that interpretation will not need humans someday. And if so, then formalism could then possibly reign. But so long as the enterprise of judging is guided by humans, the thrust of Doerfler’s essay is that we must understand the constraints of human-centered interpretation. That indeed is one ultimate conclusion of my book: not only, as Doerfler puts it, of “judges making the best of a bad situation,” but also that changes that don’t that embed themselves in text remain vulnerable to changes in context.

Indeed, this point was the most important consequence of working through the contrast between my account and Bruce Ackerman’s — especially in his latest volume of We the People, Volume 3: The Civil Rights Revolution (2014). As I write (p142–43), I don’t believe there is a better account of the extraordinary development of legal understanding and culture beyond the constitutional understanding of the New Deal than Ackerman’s. Ackerman is completely convincing that the architects of the post-New Deal legal culture crafted a rich and critically different understanding of law relative to the constitution before that period. But though that understanding trumped constitutional text, at least in important cases, it remained vulnerable to the extent that it itself was not constitutionalized in the text. As the legal culture (at least) spun more politically conservative, the absence of new text gave the activists room to breathe. As liberalism or nationalism (in the liberal sense) became less taken for granted, the constraints or enablements of the post-New Deal constitutional order became less real. A conservative court could evade them much more easily than they could have been evaded if they had been embedded in text. Thus the lesson is not just Doerfler’s — that if textualists want a legal order that actually respects the text, they need to become much stronger defenders of the mechanisms to reform text — but also what we might name the Ackermanian lament — that if reformers really want their reform entrenched, they can’t rely upon culture or background understanding; instead, reform must be codified, if reform is to survive.

John Mikhail is not convinced — by either Ackerman or me — that constitutional change was necessary at the New Deal, at least to authorize the jurisprudence of the post-New Deal court. His argument is perfectly executed, and yet reveals the motivation for, and technique of, translation. The New Deal cases, Darby, in particular, had reversed jurisprudence that had held that Congress could not regulate within domains traditionally reserved to the state, because the Constitution, as Hammer put it, had not “expressly” so authorized. But Hammer, Mikhail convincingly argues, was mistaken, as an original matter, originally, because the framers pretty clearly rejected the idea that federal power was only legitimate if granted “expressly.” As Mikhail puts it,
Darby is more faithful to the original Constitution than Hammer. To be sure, Hammer is more faithful to a persistent mythology about the Constitution, which Darby upended. But fidelity to mythology and fidelity to history are, of course, two different things. The former should not enter into the kind of reflective equilibrium (or, in Lessig’s preferred terms, the blend of fit and justification) we should be seeking in constitutional theory.
Mikhail rightly identifies a “hedge” in my account. It is a weakness of the book that it’s not clearer precisely why I offer this hedge. My objective throughout the book is to take seriously the good faith of translators. But good faith is not the same thing as truth. I am offering a way to understand the modern federalists that views their motivations as grounded in a good faith view of the framing. But I am not arguing that their view of the framing is, in fact, correct. That’s their burden, not mine. Mine is only ever a conditional argument — if you accept the motivation, then here’s how it can be seen as a practice of fidelity.

If one does accept the legitimacy of the motivation, then Mikhail’s argument again shows precisely why a modern federalist needs translation. It is certainly correct that the framing design gave the federal government all the power in the world — at least so long as the technical or economic conditions provided the constitutional predicate. But the point of translation is at the very least to remark the latent ambiguity in the framing design. Those who embrace the idea that the framing design of federal power was meant to be limited, latent ambiguity notwithstanding, should be motivated to translate that intent through techniques that limit federal power. All of these techniques will, in an important sense, be made up limits on federal power. They all will be subject to Mikhail’s charge of “mythology.” For the question from the perspective of fidelity to role is simply which of these made up limits is the most effective and least, institutionally, costly.

I’m not sure I agree with Mark Graber that one-step originalism is the interpretation of every clause as if it had a “no matter what” clause attached to it. That’s certainly right with cases like the federalism cases. The two-step translator rejects that one-step conclusion that commerce that affects more than one state can be regulated “no matter what.” But with other cases, particularly rights cases, the one-step originalist is not being rigid. She’s being oblivious. Does equality reach sexual orientation? The mistake of the one-step originalist is not that she answers “no matter what.” The mistake is the refusal to see as “unequal” what would not have been seen at all originally.
But I do think Graber does have a beautiful way to conceive of the constraints on the interpreter. I agree that the constraint is more constitutive than constraint; that “[t]he law no more constrains judges than a score constrains musicians.” This is the essential focus on practice and socialization. It is the recognition that culture helps construct who the judges are, and that that construction then creates the predicate for some of the greatest shifts in the law.

That construction still leaves the judge to decide whether to do what’s easy or, if a one-step originalist, do what the framers would have done. It may be that “[n]o one on the court thinks that women are inherently unsuited to be lawyers,” but a justice (like Scalia) presented with an Equal Protection claim based on sex still needs to decide whether to follow his theory or his the understanding that he, no less than Justice Ginsburg, is constituted by. My aim has been to give such a judge a way to understand how following how judges are now constituted is consistent with a practice of fidelity. That to borrow, but change, the phrase of Justice Holmes, a way to understand how fidelity could incorporate what everyone can’t help but think — because of fidelity to role.
Gerard N. Magliocca is certainly right that “fidelity to role” is harder to track than “fidelity to meaning.” That’s partly because, ordinarily, to announce itself would be self-defeating (“we’re ignoring the plain meaning here because to follow it would be to threaten our institutional capacity to …”); it’s partly because it inherently involves judgments of consequence that are outside the ken of the law. Except in rare cases — like the Joint Opinion in Planned Parenthood v. Casey (1992) or the internal memos in Wickard v. Filburn (1942) — the bending to role is invisible, and only to be inferred indirectly. Yet the method of my argument has been to look to the weird cases, and then ask whether there is a fidelity to role explanation there, and perhaps then elsewhere too. “How could they get this so completely wrong? Oh wait, I see…”

Magliocca is right that the distortions caused by slavery are many, and merit their own book (or at least a chapter). But the distortions after slavery ended were even more profound and evinced the dynamic even more clearly. Yes, Dred Scott was a blunder both as to meaning and as to role. But following Brandwein, it may be that the bigger blunder was in later cases not fully embracing and making real the distinction between discovered and created rights at the core of Prigg, a distinction that should have rendered the federal government even more empowered to remedy inequality than the Court eventually allowed. Indeed, as Jack Balkin has written elsewhere, had the Court recognized the point Harlan made in dissent in The Civil Rights Cases — namely, that there was a new equality right created by the citizenship clause — then the teaching of Prigg should have rendered a more significantly empowered transformative government than, in the end or at least so far, it was.

Jack Balkin’s contribution gives me a chance to clarify a point that was obviously not clear, and defend a point that I didn’t think needed defense.

I’m grateful for his careful exposition of the role of contestedness in determining the force or application of rights — especially equality and due process. But it is important in this dynamic that for the primary right to be recognized, its application must be seen as relatively uncontested; it is the contestedness of the justification that drives the result.

So, for example, that segregation by race spoke inequality could not be recognized as contested, at least after World War II. And yet the contestedness of the justification meant that the Court was compelled to defend the right. Think of a summary judgment motion: The prima facie case rests on a certain uncontestedness — we “normal” sorts (and there’s that word again) can’t help, at least now, but see something as inequality; but given the justification for that inequality is disputed, judgment remains with the prima facie case. That’s the same with gay rights. It’s the same with the abortion right (though here, the uncontestedness is about the character of the liberty interest, at least when framed in a certain way).

Jack asks why judges get to adjudicate this. The answer is in part because — with apologies to Scalia — it is inevitable, given the nature of certain rights. The Constitution embeds an equality right. How could an equality right be anything other than a measure of social meanings? Maybe, given squeamishness about judges, the Constitution shouldn’t have embedded an equality right. But given that it did, the task was set for the judges. No doubt, I would also defend the choice to vest this jurisdiction in the judges from a legal-processes-ish perspective, in the sense that both I and that venerable school would place the decision with judges because of the character of the respective institutions. Judges dominate politicians; and while the people could dominate judges, that would require an institutional sophistication (deliberative polls, etc.) that is now lacking.

But I do defend strongly the idea that we should be talking about this as a question of social meaning and not, following Dworkin or the legal process school, as a matter of “principle” (and I’m frankly a bit surprised that the author of Cultural Software wouldn’t defend the point the same way too). We need to force into the foreground the idea that these judgments are constructed — precisely so that we can more directly address whether we can justify how that construction happens and especially by whom? This would be a kind of Erie-effect driven by a recognition of the nature of social meaning, forcing a rethinking of the practice and possibly its reform.

Think of the extraordinary account given by H.L. Gates in his recent book, Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow (2019). What is striking in Gates’ account of the construction of Jim Crow is not the elevation of a bunch of “principles” about inequality or injustice; what’s striking is the extraordinary effort by so many to socially construct the reality of inequality. From the images by Thomas Nast to the film by D.W. Griffith: The late 19th century is a constant effort by inegalitarians to make inequality true or natural — not by arguments from Kant, but by images and narratives of racial difference. It is striking to recall, as Gates puts it, that W.E.B. du Bois believed the biggest role the NAACP could have was “through a blend of activism and the production of, as du Bois would recall, culture and the arts.” Missing in this account is the role most associated with the NAACP: litigation towards the end of equality.
By calling this all social meaning, we make tangible the sense in which it is, and is always, constructed. And that, in turn, should trigger more humility about that practice or reality of that construction. Yes, the judgments that matter here are always the judgments of “normal” people. But by calling it that, we demand justification about who gets to count as normal. It didn’t take my book to make clear that for literally the whole of American history, the dominant deciders for normalcy are humans we would not today deem so entitled. That truth forces the ongoing reality of translation — to reread and retranslate, now that we have a better (or at least different) sense of who should matter, and why.

Which brings me back to a question that both Sandy and Jack strongly press: Is any of this possible anymore?

As I acknowledge in my book, I’m not sure that the practice I have described will survive. I agree with Sandy and Jack that the stuff I insist is essential is precisely the stuff that our time seems to destroy. I mean that uncertainty quite precisely: No doubt, there will be plenty that points to a politicized Court, and hence plenty of reasons to wonder whether the constraint of role lives anymore.
But I am not convinced that the constraint is gone. What it requires is not so much “non-partisan[ship],” as Sandy puts it, but instead disinterestedness. The great insight from John Hibbing and Elizabeth Theiss-Morse’s Stealth Democracy (2002) is that the public respects the courts not because they believe they get everything right, but that they believe they get what they get wrong for no self-serving reason. And even this term, I suggest that we can see surprising bending that fidelity to role helps make clear. Sandy writes:
Nor do the recent decisions by five-justice conservative Republicans majorities in the partisan-gerrymandering and census cases offer the slightest reason to embrace a “non-partisan” description of the law simply working itself pure, as suggested by the Legal Process tradition.
I’m not so sure. As I’ve written elsewhere, while I certainly agree with Justice Kagan in Rucho v. Common Cause about the substantive meaning of equality, and therefore believe that partisan gerrymandering is inconsistent with that meaning, the refusal of the Court to adjudicate such cases could well be understood as avoiding the appearance of interestedness — not in this case alone, but in the run of cases together.

Likewise with the Department of Commerce v. New York: There is no way to understand the bizarre invocation of pretext by the Chief Justice except as revealing the institutional need not to “exhibit a naiveté from which ordinary citizens are free,” as he writes, quoting Judge Friendly.

But I certainly do agree — and indeed, argue at the end of the book: we won’t sustain the institution I describe if we don’t find a way to walk back from the rhetorical extremes that we all, the Court especially, have allowed ourselves to practice. I’ve seen many examples of the Chief Justice steering a course best understood through fidelity to role. But I agree with Sandy that his dissent in Obergefell v. Hodges is just not helpful. The activism that strikes down restrictions on gay marriage is the same activism that would (but for the taxing power) strike down Obamacare as beyond the power of Congress — which is to say that both are examples of an activism justified (if justifiable at all) from a particular tradition of translation. Roberts rejects the one, just as Ginsburg would reject the other. But at the very least, both should come to see how the other is practicing what they each would practice if motivated by the same values. Each believes the value they defend is embedded within our tradition. At the very minimum, charity should lead each to dissent with that recognition, which would mean that both should find a way to disagree without naming the other treasonous.

So yes, I did in part race to finish this book (if 25 years in the making can be described as a race) in part to avoid it being immediately irrelevant. But in the balance, I raced to finish this book because the normative conclusion that I draw here is the same as the conclusion I draw in my work about democracy generally: That we all, especially us, have a role in rebuilding the institutions of this Republic, and in delivering them from the corrosive effect of the cynicism that increasingly defines our culture — both legal and political.

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