Sunday, January 15, 2023

Theorizing Context

Guest Blogger

For the Balkinization 20th Anniversary Symposium

Lawrence Lessig

We still need a way to theorize about context: That’s my plea. Here’s an example to suggest what I mean. 

Consider two opinions by Justice Scalia. The first, familiar to all; the second, the most revealing of all. 

In the first, United States v. VMI (1996), Scalia dissented from the Court’s rendering more vigorous its protection against sex discrimination. The framers of the 14th Amendment, Scalia tells us, took for granted that the amendment would not change the sex-based inequality of its time. Their “fixed notions,” as the Court criticizes them and Scalia describes them, saw women in a particular place within society, and believed the law could regulate to keep women in that place. Scalia doesn’t deny that those “fixed notions” have changed. He simply denies that that change is relevant to how the case should be resolved. The Constitution, he instructs, is to prevent us from “backsliding.” It is not the role of the Court to use its more modern, enlightened views, to push us forward. 

But it is this passage in that opinion that is most revealing: 

Much of the Court’s opinion is devoted to deprecating the closed-mindedness of our forebears with regard to women’s education, and even with regard to the treatment of women in areas that have nothing to do with education. Closed-minded they were — as every age is, including our own, with regard to matters it cannot guess, because it simply does not consider them debatable. The virtue of a democratic system with a First Amendment is that it readily enables the people, over time, to be persuaded that what they took for granted is not so, and to change their laws accordingly. That system is destroyed if the smug assurances of each age are removed from the democratic process and written into the Constitution. So to counterbalance the Court’s criticism of our ancestors, let me say a word in their praise: They left us free to change.

We’re not bound, on this account, to embrace 19th-century views about women. But on this account, until amended, the Constitution is. We can, of course, pass laws that are sex neutral; but the Constitution, in Scalia’s view, can’t force sex neutrality into the law, because the framers of the 14th Amendment viewed sex inequality as not “debatable.” Sex inequality was part of the furniture of their moral universe. In Scalia’s view, that furniture is nailed to the floor. The only thing that can rearrange that furniture is an amendment to the Constitution. Until amended, the job of the Court is simply to read the text in light of the undebatables at the time the text was written. Both the text and those undebatables continue to bind until explicitly changed.

Now contrast this opinion with a less famous, but in my view, more interesting case (jurisprudentially, not substantively): Sosa v. Alvarez-Machain (2004). The issue in Sosa was the application of the Alien Tort Statute of 1789. That statute was drafted in a context filled with undebatables. Among those undebatables was a conception of the common law. The question the Court had to answer in Sosa was whether the common law it would apply was the common law of our framers, or the common law as it was understood by us today. Scalia’s answer is almost impatient in its certainty: 

Because today’s federal common law is not our Framers’ general common law, the question presented by the suggestion of discretionary authority to enforce the law of nations is not whether to extend old- school general-common-law adjudication. Rather, it is whether to create new federal common law. The Court masks the novelty of its approach when it suggests that the difference between us [members of the Court] is that we would “close the door to further independent judicial recognition of actionable international norms,” whereas the Court would permit the exercise of judicial power “on the understanding that the door is still ajar subject to vigilant door keeping.” The general common law was the old door. We do not close that door today, for the deed was done in Erie. Federal common law is a new door. The question is not whether that door will be left ajar, but whether this Court will open it.

We could spin volumes arguing about what the “Framers’ general common law” was, and how or whether it was different from “today’s federal common law.” The point to keep clear, however, is simply that Scalia saw them as different. He saw, that is, that they had a conception of general common law that was different from ours, or at least his, and that their conception (or so he assumed) would lead to one answer in Sosa, while ours would lead to another. 

But the question that VMI Scalia should press is why? Why should Sosa Scalia follow “today’s federal common law” rather than the “Framers’ general common law”? Was there an amendment somewhere that rendered their undebatables no longer binding? Is there a reason why views of the law can be updated, sans amendment, but views about equality cannot? 

I think the key to understanding the issue these two cases raise is to add a third idea to the mix. Yes, an idea can be undebatable. And yes, if it can be undebatable, then it can become debatable. But we should recognize that in addition to that binary, there is a third possibility: an idea can become undebatable again, but in an opposite way.

Specifically, with sex equality: it could well have been undebatable in the 19th century and before that women had their place, and it was society’s job to keep them there. Then sometime early in the 20th century, triggered both by the Suffragette Movement and by women’s extraordinary role during World War II, that idea became debatable. A libertarian outrage welled up within women within society, asking, “who the hell are you to tell me who I must be?” For decades, there were plenty who felt entitled to answer that question, firmly. But eventually, I take it most would agree, the question became unanswerable. Eventually, it became undebatable that women did not have “their place” in society, and whatever place they wanted to occupy was not one to be enforced by the state. The Framers of the 14th Amendment had an undebatable; that undebatable had become undebatable in the opposite way. Ginsburg crafted VMI taking for granted this new undebatable. Scalia denied that she was permitted to do so. 

Yet in Sosa, we could map a parallel dynamic: The “Framers’ general common law” was their undebatable; the jurisprudence at the turn of the 20th century rendered it debatable; by Erie, it had become undebatable in the opposite way. Erie then launched generations of thinking, reordering the furniture of jurisprudence for American lawyers generally — including, prominently, the realist Scalia, educated at a hotbed of realism, the Harvard Law School. Scalia couldn’t see the law any differently from how Brandeis had rendered it; he was impatient with the idea that maybe he should. 

I point to this — what I’ll call — inconsistency to suggest something more general: What Scalia did in Sosa is unavoidable. Not from the perspective of fidelity to meaning, but rather, from the perspective of fidelity to role. No functioning institution of government can spit in the wind of “what everyone knows is true.” Rather, any functioning institution of government must accept the taken for granteds of the time, and govern, subject to those taken for granteds. 

That’s not to say that every truth is a taken for granted truth. We all have beliefs that we embrace, even though we know not everyone embraces those beliefs. You might have a view about abortion different from mine. That might anger me, or make it less likely we’ll be friends. But there’s nothing abnormal about that difference. Views about abortion are contested beliefs. And contested beliefs define what makes us different from people in other political parties, or people in different cultures. 

But as well as contested beliefs, there are uncontested beliefs. The most important of these live far in the background, never even noticed as we go about our work. These are the beliefs that define who we are as “normal” or “well-socialized” sorts. These are the things Holmes described as our “can’t helps” — the beliefs that we can’t help but hold, because of who we have evolved to be. You might have a different view about abortion and still be welcome within our society; but if you have a different view about quid pro quo sexual harassment or pedophilia, that doesn’t just make you different. It makes you alien. Deviating from uncontested beliefs makes you deviant; deviating from contested beliefs makes you different. 

The story here is more complex than I’m suggesting. I’ve felled many trees trying to unpack that complexity — see Fidelity & Constraint (2019). But I don’t think either I or anyone whose work in this area I’ve seen has yet done a great job in helping us think about how these views, background but taken for granted, should matter to constitutional interpretation in general, and theories of fidelity in particular. 

And specifically, how changes in these background views should count for purposes of fidelity. Because my sense is that most theories of interpretive fidelity try to ignore this dynamic. Most proceed as if we could have a practice of fidelity without making these changes explicit. Versions of originalism have moved further and further from the text in the pursuit of original meaning. The most recent turn includes canon of interpretation of the text, not explicit in the text but understood. Yet that is just the beginning of understanding context adequately. And though I’ve been writing in this field for 30 years now, still, it feels, we are not far from that beginning. 

If we did have an adequate theory of context, I think two surprising conclusions would follow from it. First, that the sort of change that Sosa Scalia thought he obviously had to accept is indeed a change of fidelity. It is, in other words, exactly the sort of change the law should allow and embrace, as an expression of fidelity. But second, that fidelity is particular to the judicial role. The reason it is right to accept these new undebatables, and to incorporate them into the law, is not a point about epistemology (though for some epistemologies, it would be); it is a fact about institutions. World views change without anyone voting on it. They change without most even recognizing that the change has happened. And as they change, they leave many things uncertain and contested; indeed, they create many new things that are uncertain and contested. But no theory of interpretive fidelity can ignore how changes in the undebatables should be reckoned. 

Were we to have a better theory of context, the theory I am pleading we need, that point would be too obvious to remark. As things are, it feels like little more than an annoyance. The shape of context can be ignored; that is our undebatable. 

Yet I plead as an alien: if we’re to understand our law across time, which is, across context, it cannot be ignored.

Lawrence Lessig is Roy L. Furman Professor of Law and Leadership, Harvard Law School. You can reach him by e-mail at 

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