Lawrence Solum
Introduction
Lawrence Lessig's Fidelity together with Constraint is an of import contribution to American constitutional theory. Although Lessig packages his ideas equally a flat of "originalism," a unopen reading of his mass suggests that his enterprise is ameliorate understood equally a version of "living constitutionalism. Originalism requires constitutional do to hold upward consistent with the master copy pregnant of the constitutional text. Lessig's theory sanctions departures from master copy pregnant inwards 2 ways. First, Lessig maintains that constitutional actors should hold upward guided past times two, potentially conflicting, duties of fidelity: fidelity to role together with fidelity 2 text. Second, Lessig's understanding of interpretation equally translation results inwards a version of fidelity to text that permits departures from the actual communicative content of the text inwards companionship to accomplish the purposes or functions that the text. When these 2 features are combined, the final result is a flat of living constitutionalism undermines the dominion of constabulary together with legitimacy values that supply the strongest justifications for constitutional originalism.
Originalism
Originalism is best understood equally a household unit of measurement of constitutional theories that affirm 2 centre ideas. The Fixation Thesis claims that the communicative content of the constitutional text is fixed at the fourth dimension each provision is framed together with ratified. The Constraint Principle is the conjunction of 3 limitations on constitutional actors: (1) constitutional practice, including the determination of constitutional cases together with issues, must hold upward consistent with the communicative content of the constitutional text; (2) all of the constitutional text (excluding provisions overridden past times amendment) must hold upward reflected inwards constitutional doctrine, together with (3) constitutional doctrines must hold upward fairly traceable to the constitutional text. In other words, constraint requires that the Supreme Court cannot override the constitutional text inwards the guise of constitutional interpretation together with that the Court cannot invent constitutional doctrines that are non grounded inwards the text.
Although originalists grip on the Fixation Thesis together with the Constraint Principle, they disagree on other matters. The dominant flat of originalism is populace pregnant originalism: the best understanding of master copy pregnant focuses on the content communicated past times the text to the populace at the fourth dimension each constitutional provision was framed together with ratified. But at that spot are other views on this issue, including master copy intentions originalism, master copy methods originalism, together with master copy constabulary originalism.
Contemporary originalists also disagree almost the interpretation-construction distinction. Many of the so-called "New Originalists," including Randy Barnett, Keith Whittington, together with myself, affirm a distinction betwixt "Interpretation" (discovering the pregnant of the text) together with "construction" (determining the legal trial given to the text). To the extent that the communicative content of the constitutional text is underdeterminate (e.g., vague or opened upward textured), the text creates "construction zones" or sets of issues together with cases with abide by to which the text does non fully specify constitutional doctrine. In these structure zones, courts volition demand to devise implementing rules or precisifications that fulfill the purpose of the constitutional provision inside the limits provided past times the text. Importantly, at that spot are cases where the constitutional text is determinate; inwards such cases, the communicative content of the constitutional text suffices to resolve the constitutional number earlier the courts.
Is the constitutional theory advanced past times Lessig inwards Fidelity together with Constraint a fellow member of the originalist household unit of measurement of theories? Lessig claims that his theory is a version of what he call’s two-step originalism:
In the foremost step, the translator understands the text inwards its master copy context. In the instant step, the translator hence carries that foremost mensuration pregnant into the introduce or target context. (p. 63-64)
Lessig’s formulation of mensuration 2 is imprecise. What does it hateful to send pregnant of the text inwards its master copy context into its introduce context? There are at to the lowest degree 2 distinct understandings of mensuration two. Call the foremost version, “step 2 equally construction.” On this version of mensuration two, carrying foremost mensuration pregnant into the introduce context involves fixed pregnant (step one) that is hence applied to the electrical flow context. Step-two-as-construction would hold upward a fellow member of the originalist household unit of measurement if mensuration 2 respects the Constraint Principle: this version of Step Two would allow for translation inside the structure zone but would non allow for constructions that are inconsistent with the master copy populace pregnant of the constitutional text. Lessig seems to endorse this understanding inwards the next passage:
Within the constraint of the Constitution’s words, the Court seeks to avoid that defeat past times a “search for admissible meanings of its words which, inwards the circumstances of their application, volition effectuate those purposes.” (p. 67)
If “admissible meanings of” “the Constitution’s words” are master copy meanings, hence mensuration 2 is consistent with the Constraint Principle, but it is non clear from this passage whether admissible meanings are express to the master copy populace pregnant of the constitutional text. If Step Two allows for translations that are inconsistent with the master copy populace pregnant of the constitutional text, hence it sanctions violations of the Constraint Principle—and for this reason, Lessig’s theory would non hold upward a flat of originalism.
There is a instant possible understanding of mensuration two: telephone yell upward this version “step-two-as-interpretation.” On this version, the pregnant of the constitutional text is non the master copy meaning: instead, judges would build a counterfactual meaning, imagining that the constitutional text had been written inwards the electrical flow context. This version of mensuration 2 is inconsistent with the Fixation Thesis, together with it is non a flat of “originalism”—as originalism is ordinarily understood. Step-two-as-interpretation substitutes a hypothetical counterfactual pregnant for the master copy pregnant of the constitutional text.
So, readers of Fidelity together with Constraint may wonder whether “two-step originalism” is consistent with the Fixation Thesis together with the Constraint Principle. The beginnings of an respond to this enquiry tin hold upward establish inwards Lessig’s concern human relationship of fidelity.
Conflicting Fidelities
The conventional originalist understanding of the concept of fidelity is that constitutional legitimacy requires judges to adhere to the Constraint Principle. Judges violate their duty of fidelity to the Constitution, if they engage inwards constitutional structure that violates the Constraint Principle. Lessig has a dissimilar understanding; he distinguished betwixt “fidelity to pregnant together with fidelity to role.” Lessig explains:
These 2 fidelities sometimes complement each other. An interpretation of the Constitution that says Alaska gets 2 senators is both consistent with the pregnant of the Constitution together with consistent with the judicial role. At other times those 2 fidelities conflict with each other, equally inwards the hypothetical that began this chapter. And the hard alternative for a courtroom is how best to accommodate these 2 kinds of fidelity when they conflict. Judges must inquire themselves: “What does it hateful to hold upward faithful to the Constitution’s meaning? How do I cash inwards one's chips on organized faith with the judicial role?” (p. 18)
Lessig’s declaration is ingenious together with appealing. Living constitutionalist judges oftentimes human activity inwards ways that may hold upward explained past times the thought of fidelity to judicial role that permits judges to violate the Constraint Principle together with update the Constitution to reverberate changing values together with circumstances.
Despite the appeal of Lessig’s thought of fidelity to role, originalists tin together with should resist this move. First together with foremost, originalists debate that Lessig has a false understanding of the legitimate role of judges inwards constitutional cases. Judges swear an oath to “this Constitution,” the written Constitution of the United States. Their legitimate role inwards constitutional cases is bounded past times the Constraint Principle: when they override the constitutional text, they mensuration exterior the legitimate role of judges.
Second, the Lessig’s declaration for his invention of judicial role is primarily based on a description of constitutional practice: Lessig argues that, equally a affair of fact, judges acted inwards conformity with a nonoriginalist invention of judicial rule. This is a positive claim, but it does non supply a normative justification. Originalists debate for the Constraint Principle on normative grounds: our invention of legitimate judicial role should non allow for judicial overrides of the master copy pregnant of the constitutional text.
To the extent that Lessig’s invention of fidelity to judicial role allows for violations of the Constraint Principle, his theory is a version of living constitutionalism together with non a version of originalism.
There is unopen to other difficulty with Lessig’s understanding of fidelity equally involving 2 conflicting duties—one to role together with the other to text. This approach understands fidelity equally involing 2 potentially conflicting duties. Sometimes these 2 duties coincide, but on other occasions they volition conflict. This raises the obvious question: what should judges do when their duty of fidelity to the constitutional text conflicts with their duty of fidelity to their institutional role equally judges? It is non completely clear how Lessig would respond this question, but his theory seems to assume that inwards conflict cases, the duty of fidelity to role overrides the duty of fidelity to text. But if that is the case, hence Lessig’s pic is misleading. In fact, at that spot is exclusively ane duty of fidelity, together with that is fidelity to role. Fidelity to text is only a subordinate seem of fidelity to judicial role.
From an originalist perspective, the notion that fidelity to role is the paramount judicial duty turns things upside down. Judges swear an oath to “this Constitution,” non “the role of judge.” The Constitution creates the Supreme Court, non vice versa. The legitmate ability of courts together with judges is that ability conferred past times the Constitution, non vice versa.
Two Kinds of Translation
There is unopen to other seem of Lessig’s theory that bears on the enquiry whether “two-step originalism” is genuinely a flat of “originalism” equally that term is conventionally understood. Lessig’s uses the thought of translation equally a metaphor for interpretation:
The aim of a courtroom interpreting a constitution, at to the lowest degree according to the ideals of interpretive fidelity, should hold upward to save that constitution’s pregnant across time. Translation is a metaphor for understanding how such preservation powerfulness work. Influenza A virus subtype H5N1 courtroom preserves pregnant past times translating a text into the electrical flow context. Its aim is to hit a reading of the master copy text inwards the electrical flow context that has the same pregnant equally an master copy reading of that text inwards its master copy context. (p. 71)
This passage is complex. Much depends on what Lessig agency when he uses the discussion “meaning.” Originalists empathise “meaning” equally communicative content—the pregnant that was conveyed past times the constitutional text inwards the master copy context of constitutional interpretation. But the discussion “meaning” is ambiguous. Sometimes nosotros utilisation “meaning” equally a synonym for “purpose.” Other times, nosotros utilisation “meaning” to refer to “effect.” If Lessig is using “meaning” inwards its communicative sense, hence his persuasion would hold upward a flat of originalism, but it is unclear (to me) what feel of “meaning” he intends to employ.
Consider the next additional passage:
The instant alternative is two-step originalism: fidelity through translation. Courts recognize the originalist noise together with respond past times crafting an alternative interpretive strategy. That alternative changes the way the Constitution is read. But that alter is non infidelity (or at to the lowest degree is non meant equally infidelity). That alter restores (or at to the lowest degree is said to restore) the Constitution’s pregnant to the Framers’ design. (p. 80)
In this passage, Lessig seems to recognize the possibility that two-step originalism involves a divergence from the communicative content of the constitutional text but argues that such departures withal restore the “Constitution’s pregnant to the Framers’ design.” (p. 80)
But what is “the Framers’ design? At ane point, Lessig seems equate “design” with “fundamental principle.” (p. 84), but none of the 11 passages inwards which the phrase occurs provides a clear explanation. The discussion “design” is teleological: the clear implication is that the Framers’ blueprint is a function, goal, or purpose. If this reading of Lessig is correct, hence his theory allows the Supreme Court to override the master copy pregnant of the constitutional text inwards companionship to accomplish the purpose, goal, or surgical physical care for of a constitutional provision.
Familiar Difficulties with Purposivism
As should instantly hold upward clear, it is non slow to position the precise content of the theory proposed inwards Fidelity together with Constraint. If that theory is a version of constitutional purposivism, hence it faces unopen to familiar difficulties. It is far from clear that the Framers or Ratifiers agreed on the purpose, goal, or component associated with at to the lowest degree unopen to provisions of the Constitution. For example, high Federalists may induce got believed that the Necessary together with Proper Clause together with the Preamble should component hence equally to do plenary together with virtually unlimited national legislative power. Moderate Federalists together with others may induce got understood the destination of enumeration to hold upward confined national ability together with the preservation of a substantial zone of nation ability that could non hold upward preempted past times the national government. Moreover, purposes, goals, together with functions tin hold upward stated inwards a multifariousness of ways together with at dissimilar levels of generality. But inwards detail cases, dissimilar statements of the purpose, goal, or component may induce got dissimilar implications for the outcome of the case.
These familiar difficulties led most originalists to abandon the doctrine of master copy intent together with to focus instead on master copy populace meaning. The constitutional text itself is stated at a flat of generality: unopen to provisions are real concrete together with particular; others are abstract together with general. The Framers together with Ratifiers agreed on the constitutional text, which has a populace meaning. Although at that spot may induce got been disagreement almost the purposes for which the text was adopted, at that spot was understanding on the words together with phrases that made upward the constitutional text.
The Normative Implications of Conflicting Fidelities together with Purposivist Translation
So far, nosotros induce got focused on the enquiry whether two-step originalism is properly called “originalism.” We induce got seen that a instance tin hold upward made that Lessig’s theory is a version of nonoriginalist living constitutionalism, but on unopen to other understanding his theory is genuinely a version of the so-called “old originalism,” which nosotros powerfulness telephone yell upward “original purposes originalism.” Either way, to a greater extent than is at stake than the label “originalism.” Lessig’s moves to fidelity to value, loose translation, together with two-step originalism induce got of import normative implications.
The normative implications of two-step originalism tin hold upward approached past times comparison Lessig’s theory to purposivism equally an approach to statutory interpretation. Like purposivism, two-step originalism must bargain with the fact that dissimilar judges volition induce got dissimilar beliefs almost the purpose, goal, or component of diverse constitutional provisions. Such beliefs are probable to hold upward influenced past times the judges ain moral, political, together with ideological beliefs. Progressives together with liberals are probable to induce got an expansive persuasion of the master copy purpose of Article I, Section 8; conservatives together with libertarians may good induce got a narrower view. Public pregnant originalism cannot eliminate these disagreements, but it tin confine them to the structure zone—within the limits imposed past times the constitutional text.
The fact of ideologically driven disagreements almost purposes, goals, together with surgical physical care for has implications for the constitutional system. That organisation is dynamic, together with it involves political actors, particularly the President together with the Senate. Once political actors realize that the ideology of judicial nominees volition comport upon the physical care for of two-step originalism, they volition induce got powerful incentives to select Supreme Court Justices whose ideology they favor. On the Court itself, ideological disagreement with the Justices may final result inwards farther politicization. These dynamic processes tin final result inwards a downward spiral of politicization. Two-step originalism encourages the downward spiral past times freeing the Justices from the binding trial of the constitutional text.
Conclusion
Lawrence Lessig's Fidelity together with Constraint is an of import statement. It aims for a optic path betwixt an unbounded living constitutionalism together with a highly constrained originalism. The thought of a optic path is attractive, but it may hold upward illusory. In the actual world, fidelity to role together with two-step originalism may loosen the bounds of constraint together with thereby undermine the dominion of law.
Lawrence Solum is Carmack Waterhouse Professor of Law at Georgetown University Law Center. You tin compass him past times email at lsolum@gmail.com
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