“It Is Emphatically The Say Too Duty Of The Judicial Region To Enjoin What The Social Important Is.”

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

Fidelity as well as Constraint is a dazzling book-- crammed total of interesting ideas as well as a wealth of remarkable reinterpretations of the Constitutional canon-- written inwards an engaging as well as accessible style.

There is so much packed into this book, inwards fact, that I volition non live able to speak over all of its key ideas inwards a unmarried weblog post. Instead, I volition focus inwards some depth on a few of the book's most interesting as well as provocative theoretical claims, which revolve around Lessig's master copy concept of social meaning.

The bulk argues that the Justices of the U.S. Supreme Court sweat to accomplish fidelity to pregnant inwards changed circumstances consistent amongst fidelity to their role every bit judges.  One way inwards which they do this is through translations--although it may plough out  afterwards on that the translations themselves conflict amongst fidelity to role.  When that happens, judges must sacrifice fidelity to pregnant (through translation) inwards monastic tell to maintain fidelity to role.

The concept of translation is connected to a silent to a greater extent than basic thought inwards Lessig's thought-- the thought of social meaning. In particular, Lessig argues that judges are authorized to interpret the Constitution (for example, the Fourteenth Amendment) when the social pregnant of existing practices becomes contested as well as the conflict over social meanings becomes foregrounded. This is how Lessig explains the Supreme Court's decisions inwards Brown v. Board of Education, the modern sexual practice equality cases, the reproductive rights cases, as well as the gay rights cases. Lessig groups all of these decisions together as  examples of "translation from the Left." (There are other kinds of translations inwards the book, besides many to speak over inwards this weblog post.)

Here's the basic argument: Take an older practice: segregation, sexual practice discrimination, suppression of homosexuality, criminalization of reproductive rights. For many years this do is non contested. "Normal" people (Lessig's term, non mine) recall it's obvious that at that topographic point is no discrimination or abridgment of a key right going on, as well as they also recall that other "normal" people grip amongst them.

Now imagine that the social pregnant of the do becomes contested, so that "normal" people realize that other "normal" people disagree almost whether the do is discrimination or the abridgment of a key right. (That is, a conflict almost social meanings which may non receive got existed or may receive got existed alone inwards the background right away becomes foregrounded.) When the social pregnant of an older do becomes contested inwards this way, justifications for the do also larn contested. They tin no longer live taken every bit presumptively acceptable. When this happens, Lessig argues, courts receive got a duty to exercise judicial review to protect freedom as well as equality.  They must interpret past times to present.

This is how Lessig justifies Brown v. Board of Education. Before World War II, most "normal" (there's that tidings again) people thought that segregation was non discrimination. (p. 357) After World War II, the social pregnant of segregation changed. The social pregnant of segregation had larn contested as well as this alter was foregrounded. Many people right away believed that segregation was discrimination as well as other people understood that they felt this way.

Lessig continues: “If the segregation is discrimination, so it must move unless it tin live justified. But if that justification is contested, so the segregation cannot live justified. The rattling deed of affirming the contested justification would trigger fidelity to role.” (p. 358). That is, Lessig argues that refusing to exercise judicial review as well as protect equality would violate the Court’s institutional role. As Lessig explains: “Once a line is seen every bit violating equality, the Court must create upward one's heed whether or non to receive got the justification for that inequality. Yet if that justification itself is contested, so for the Court to receive got it would live for the Court to select a side inwards that contest. Depending on the nature of that contest, to select a side could conflict fundamentally amongst the excogitation of the Court every bit a court. Justices on their ain could receive got ane see or another. But if the Court engages inwards that contest, it threatens its ain institutional independence.” (pp. 358-59).

And here’s how the declaration plant inwards sexual autonomy cases similar Griswold v. Connecticut or Roe v. Wade: When it becomes contested every bit a thing of social pregnant whether a freedom is key (such every bit contraception or abortion) the Court must pace inwards to protect the liberty: “Once viewed every bit key ... the burden shifts to the province to justify its infringement. But that agency that the contestability of whatever justification renders the justification insufficient.” (p. 392)

This declaration seems puzzling for 3 reasons.

First, when social pregnant becomes contested, so that reasonable people disagree almost what is going on, why isn't this just the 2nd when judges should defer to the political process?

Second, why is refusing to exercise judicial review "taking a side" inwards a dispute almost whether a do is justified? Why wouldn't judicial intervention involve the courts "taking a side?"

Third, social pregnant is never completely univocal. Who is to say when social pregnant has larn sufficiently contested that judges should interpret into novel guarantees of freedom as well as equality?

These questions Pb to Lessig's 2nd claim. He argues that when social pregnant becomes contested, nosotros cannot rely on the political procedure to recognize as well as protect novel rights because the political procedure is non well-designed to brand principled judgments almost these issues. As he explains:

[R]egardless of whether ane believes ordinary people inwards a properly constituted procedure could come upward to a similar result, it’s fairly clear that an ordinary democratic procedure through elections would not. Again, that see does non depend upon believing that people are incapable of answering these questions. It depends instead upon a judgment almost what such a procedure produces. Whatever it produces, it is non the reasoned judgment that the defense strength of civil rights depends upon. It is non the residuum as well as reasoning that the consistent defense strength of key ideals relies upon. (p. 449) 

Instead, Lessig argues that judges are ameliorate equipped than ordinary citizens--or elected their representatives--to recognize that social pregnant has larn contested as well as to deed on these changes inwards social pregnant inwards a principled way. (pp. 449-51).  Compared to the democratic political process, Lessig argues, "courts [are] the ameliorate establishment to rail the development of social meanings." (p. 452)

But the declaration silent seems puzzling. Who inwards the globe thinks that Anthony Kennedy is an skilful on social meaning? Wouldn't an anthropologist, or an advertising executive, live to a greater extent than competent? Why Anthony Kennedy as well as non Clifford Gertz or Don Draper?

And why does judicial activism larn justified every bit before long every bit social pregnant becomes contested? Why does the betoken at which a Justice thinks that reasonable people right away disagree almost whether denial of same-sex union is discrimination or an abridgment of freedom larn the betoken at which the Court should mandate same-sex union throughout the nation?  (Why shouldn't the Court receive got to hold off until it's clear that almost all "normal" people grip on the social meaning?)

Lessig's declaration seems to live missing a crucial step. It can't live plenty that a approximate understands that reasonable people disagree almost the social pregnant of excluding same-sex couples from marriage. The approximate must also recall that the do truly violates freedom or equality. For if the approximate doesn't recall that denying same sexual practice couples the right to conjoin is unjustified discrimination, so the fact that people disagree is an fantabulous ground to exit the interrogation to politics. Failing to intervene shouldn't--at to the lowest degree inwards that judge's eyes--threaten the Court's institutional role. I am non sure whether Lessig would receive got this friendly amendment, but if he doesn't believe this, his declaration does non seem rattling persuasive.

But fifty-fifty if nosotros tweak the declaration inwards the way I receive got suggested, it silent looks a flake strange. Why should judges, of all people, create upward one's heed when social pregnant is sufficiently contested as well as what the right agreement of a social do is? (p. 447-452). To paraphrase John Marshall, Lessig seems to live maxim that “It is emphatically the province as well as duty of the judicial subdivision to say what the social pregnant is.”

And indeed, that is what he says: "My positive claim has been that inwards fact, our tradition has allowed the Supreme Court a jurisdiction to say what the social pregnant is." (p. 447).

What?

But wait. Here's some other way to hold off at it.

Suppose that nosotros interpret (I utilization the tidings advisedly) all of Lessig's arguments almost social pregnant into a much older linguistic communication of American legal thought: the linguistic communication of American Legal Process. Then the declaration would hold off something similar this:

Judges should non protect novel rights as well as liberties where reasonable people grip that at that topographic point is no work of discrimination or abridgment of a key right. But when judges larn convinced that key rights as well as liberties are at stake-- fifty-fifty if non everyone agrees amongst them--they receive got a duty to protect these rights as well as liberties inwards a principled fashion. That is because the political procedure is often unable to recognize violations of freedom as well as equality as well as to protect them inwards an appropriate way according to principles of constitutional police pull that volition apply non alone inwards this case, but inwards other cases every bit well. Only the courts, because of their detail institutional configuration, receive got the powerfulness to articulate principled justifications as well as doctrines to protect freedom as well as equality.

Sound familiar? This is essentially the see of mid-century Legal Process scholars similar Alexander Bickel, Henry Hart, Albert Sacks, as well as Herbert Wechsler. It is also the see of Ronald Dworkin, who agreed amongst Legal Process scholars that the courts, inwards contrast to legislatures, are the "forum of principle." In addition, Legal Process theorists argued that judges had the powerfulness to discovery the widely shared principles as well as ethical commitments of the social club inwards which they lived as well as restate these commitments as well as values inwards price of legal principles that apply generally, as well as non only to the do goodness of a detail grouping inwards society. (This is the famous thought of "neutral principles" of constitutional law).

Lessig is giving us the arguments of the Legal Process schoolhouse dressed upward inwards the linguistic communication of social meaning. Indeed, when he comes to his give-and-take of fidelity to judicial role, he essentially restates familiar Legal Process ideas almost administrability as well as avoiding the appearance of political judging.

This connector to the Legal Process tradition is not, inwards as well as of itself, a criticism of Lessig. Rather, it is a way of agreement what this bulk is truly about. Strip away the fancy speak almost social meanings as well as what y'all receive got is a contribution to a familiar tradition of constitutional theory, ane which is largely internalist inwards its ambitions.

Lessig as well as the legal procedure scholars who preceded him had 2 things inwards common. First, they had absorbed the lessons of legal realism as well as they recognized that it was hard to larn consensus on questions of value. Second, although they respected social science, they understood that they themselves were non scientists. They wanted to offering an internalist line organisation human relationship of what judges should do inwards the human face upward of disputes almost questions of value. For the Legal Process scholars, the thought was to hold off for modes of reasoning that judges could reasonably employ, that leveraged judges' capacities every bit legal professionals, as well as that would allow judges to sidestep hard as well as contested questions of value--or plough them into other kinds of questions that judges could respond inwards ways that the dry ground would discovery legitimate as well as appropriate to the judicial role. Hence these scholars' focus on neutral principles, institutional settlement, as well as the reasoned elaboration of the law.

Lessig's resort to social pregnant is his way of dealing amongst these age-old problems of judicial review. Instead of deciding whose values are truly goodness or bad, truly right or wrong, judges should hold off to social phenomena--in this case, social meanings--which are inter-subjectively shared past times many people inwards society. And because they are inter-subjectively shared, judges are inwards just every bit goodness a seat every bit ordinary people to empathize them. Better, inwards fact, because judges are isolated from everyday political competitor as well as so they tin deed inwards a principled fashion as well as won't live hampered past times the bespeak for political compromise as well as tempted past times the wishing to score political points.

Needless to say, if y'all weren't convinced past times how Legal Process scholars similar Hart, Bickel as well as Wechsler solved these problems, y'all won't live convinced past times Lessig's solution either. And conversely, if y'all are attracted to Legal Process solutions to these questions, y'all volition discovery a lot to similar inwards Lessig's approach, although y'all volition wonder what the utilization of the term "social meaning" adds to the analysis. After all, y'all mightiness think, if nosotros are going to live internalist, let's live internalist as well as non confuse the number past times invoking social science. Of course, ane mightiness respond that Lessig's notion of "social meaning" isn't truly meant every bit a claim almost social scientific discipline at all. It is a judge's view of social meaning, which bespeak non check to what social scientists would or could measure.

This brings me to a 2nd betoken almost Lessig's utilization of social meaning. His concept of contested as well as uncontested social meanings (as good every bit his concept of foregrounded as well as backgrounded social meanings) is also non truly meant every bit a social scientific account. Rather, it is the way that social pregnant appears to judges as well as their elite audiences. The tell-tale sign is Lessig's utilization of the tidings "normal," to which I right away turn.

A Constitution for “Normal” People

Lessig's arguments almost translation seem to plough on a distinction betwixt contested as well as uncontested social meanings (as good every bit backgrounded as well as foregrounded meanings). But that distinction creates a number of puzzles.

First, cultures are non monoliths; they are diverse. That agency that social pregnant is e'er contested. And that includes social meanings almost whether at that topographic point is discrimination as well as whether key liberties receive got been abridged. If so, Lessig’s declaration almost when translation is justified/required may bear witness besides much.

Lessig is good aware of this fact. He solves the work inwards 2 ways. The showtime is past times distinguishing betwixt what is foregrounded as well as what is backgrounded. But the second, as well as to a greater extent than of import way of dealing amongst the work is past times maintaining that social pregnant is contested alone when “normal” people recall it is contested:  “By ‘contested’ I hateful issues that normal people recall normal people tin disagree about....I’m non maxim that something is contested only because people, on average or fifty-fifty frequently, competitor it. I’m maxim it’s contested because inside a detail social context, people empathize that normal people tin disagree almost it. The declaration isn’t a prediction of how people would vote; it is instead a prediction almost how divergence would live understood.” (p. 145-46)

This solution leads to silent farther difficulties.  For ane thing, it leads Lessig to rattling uncomfortable positions almost who is “normal” for purposes of the theory.

Take Plessy v. Ferguson. Lessig argues that it was defensible if non correctly decided because inwards 1896 it was taken for granted that blacks were inferior as well as that segregation was non discrimination. (pp. 346-47).  But it was quite obvious then--and Lessig himself points this out--that dark people did non grip amongst this view.  And blacks constituted a rattling important proportion of the American population.  (In fact, they constituted one-half of the population of the province of Louisiana inwards the 1890 Census.)  And non just blacks: some whites also thought that segregation was discrimination.

We tin position the betoken to a greater extent than starkly. After the abolition of slavery, the social pregnant of segregation was never uncontested inwards the United States, if y'all recall that dark people are “normal.” But Lessig argues that the social pregnant of segregation was non contested inwards the belatedly nineteenth century--and indeed, non until after World War II. It follows that his see must live that that dark people were non considered “normal” at that betoken inwards history.  (One gets to the same number through the distinction betwixt foregrounded as well as backgrounded arguing of social meaning. Black people may receive got contested the pregnant of segregation--a lot--but "normal" people did non notice that they were doing so.)

This raises a to a greater extent than basic question: Not considered normal by whom? Under Lessig’s theory of social meaning, who gets to say whether dark people are normal or not? The respond appears to live that the elites from whom judges as well as Justices are selected larn to say who is normal.

As Lessig puts it, “The inferiority of the African race was a truth for the elite of the time, non opinion.” (p. 346) The Court assumed that all reasonable people understood this. What?  Did the Justices non notice John Marshall Harlan waving his manus vigorously? Yes they did, Lessig responds, but “most people” thought his see was “crazy.” (p. 346) In this passage, Lessig is equating the views of "most people" amongst most elites.  This is non the alone fourth dimension he does this inwards the book.

The Court did non meet the number of discrimination every bit contested because the number was non contested amidst educated white elites. (Hey, says Harlan, waving vigorously, I’m right here!) It follows from this betoken that the alone people who are “normal” for purposes of the theory are those deemed to live normal (and reasonable) past times elites.  (pp. 346-47) Not surprisingly, inwards these passages, every bit elsewhere inwards the book, Lessig moves seamlessly from talking almost “most people” to talking almost “elites.”  For example, he says that "[n]ormal people saw the appropriateness of race-based segregation....Justice Brown did non bespeak to defend that claim. It was shared past times everyone inwards 1896—including Homer Plessy! Or practically everyone, at least, as well as certainly almost everyone who mattered to the globe of power." (p. 346)

This is ane of the most of import sleights of manus inwards the entire book.  Whenever Lessig talks almost the Court responding to what “most people” think, he is truly talking almost the Justices responding to what elites think.

This sleight of hand, however, makes considerable feel sociologically if nosotros are trying to depict why the Justices comport inwards the way they do, which, after all is a important business office of Lessig's project. (The other business office is the claim that these practices are truly legitimate). Neal Devins as well as Lawrence Baum’s recent book, The Company They Keep, argues that Supreme Court Justices perform earlier audiences of boyfriend elites. They attention mostly almost elite opinion, non the persuasion of the full general public. When Justices recall almost “normal” people, or "reasonable" people, therefore, they recall almost the people whom they interact amongst on a daily ground as well as whose persuasion they attention most about. Those people are well-educated elites as well as their families, who are also often well-educated elites.

If Devins as well as Baum are correct, it would follow that--in the Court’s eyes--what “normal” people recall almost what other “normal” people recall turns out to live what elites recall almost what other “normal” people (i.e., elites) think.

As a descriptive matter, this would explicate the results inwards Brown, Griswold, Roe, the sexual practice equality cases, as well as the gay rights cases. The Court responded to changes inwards social pregnant (among elites) inwards just the way that Lessig describes.

It is worth emphasizing, however, that although this explains the results inwards these cases every bit a descriptive matter, it does non justify them. Here Justice Scalia mightiness object: “This proves my point: The Court is deciding these cases according to elite opinion. Why should elites live permitted to overturn the views of ordinary Americans?” 

Lessig does non truly render an respond to that interrogation inwards this book.  That is because he conflates “most people” amongst “normal people” as well as “normal people” amongst the audience for Justices--that is, elites. He does so because the Court itself does so. But again, that explains, rather than justifies, a programme of constitutional interpretation.

Lessig attempts to deflect the interrogation past times returning to the declaration from judicial role--which is also the declaration from legal process. It does non thing whether judges are elites--they certainly are. What matters is that they are ameliorate situated to create upward one's heed questions of  social pregnant than the democratic process. This is essentially Hart as well as Sacks' regulation of institutional settlement. As Lessig puts it, "The epistemological alternative thus resolves non just upon whether ane believes judges are from an elite or are politically biased. They certainly are both, as well as that fact is an of import concern that must live addressed through proper variety as well as humility. The alternative resolves every bit good upon whether one believes that the alternative—the ordinary democratic process, at to the lowest degree every bit it is now—is capable of fairly evaluating the values at stake at all." (p. 451).

But the social pregnant that judges are peculiarly good situated to empathize as well as deed upon is elite social meaning. Why should that social pregnant live the driver of constitutional interpretation as well as constitutional change? 

Translation inwards Polarized Times

Suppose that nosotros receive got Lessig’s theory of “contested” social meanings, as well as suppose that nosotros also receive got that courts tin as well as should respond to changes inwards elite social pregnant to protect freedom as well as equality.  Even so, the declaration faces yet some other problem, ane which Lessig himself is quite aware of, as well as which he addresses inwards the terminal pages of the book.

Lessig’s theory plant alone if elites commonly recall alike on a broad arrive at of issues (for example, every bit they did almost race inwards 1890). His theory presupposes elite consensus every bit the normal or touchstone case, so that it becomes possible for elites to recognize that social pregnant has larn contested. If at that topographic point was no full general consensus amidst elites, it would brand no feel to say that social meanings on a detail interrogation had larn contested as well as that this difference is right away foregrounded.

Thus, Lessig’s line organisation human relationship relies—as receive got so many other 20th century theories of constitutional law—on elite consensus.

But today elite persuasion is polarized on to a greater extent than as well as to a greater extent than subjects. While inwards the past times well-educated elites tended to grip to a greater extent than amongst each other than was truthful of the ease of the public, the contrary is right away the case: Liberal as well as conservative elites disagree to a greater extent than than non elites do.

Even worse,  the country’s politics is increasingly divided on issues of condition as well as identity--issues that are primarily almost questions of social meaning.  Both sides complain loudly that the other side is discriminating against them as well as violating their key rights: racial equality, sexual practice equality, sexual orientation equality, trans equality, spoken communication rights, religious rights, gun rights, holding rights, economical rights. If so, so Lessig’s justification for judicial review volition apply to besides many things.

Because the 2 major political parties are facing off over identity as well as status, elites inwards both parties recognize that social pregnant has larn contested on almost all of the issues that they attention about.  According to Lessig’s theory, that would seem to offering the Court the opportunity, if non the obligation, to exercise judicial review on all of these subjects. (Indeed, inwards cases where both sides tin brand freedom and/or equality arguments, the Court mightiness receive got an obligation to exercise judicial review inwards both directions at once!)

This is non the showtime fourth dimension this work has arisen. Here are 2 examples from periods of high polarization inwards the nation’s history, ane former as well as ane new.

The former instance is Dred Scott v. Sandford.  The Jacksonian era is ane of increasing elite polarization over slavery.  In 1820 the Missouri Compromise appears to live just that, a compromise betwixt various regional as well as holding interests. By 1857, the compromise seems unbearable to the South, because it shuts Southern settlers out of large parts of valuable federal territory. What in ane trial was a reasonable compromise right away seems similar discrimination to southern elites.  Fortunately for them, Jacksonian Democrats receive got a bulk on the Supreme Court. Justice Catron, inwards a concurrence, explains that the Missouri Compromise violates “EQUALITY” (he uses all caps), which is ane of the showtime uses of the term inwards the US Reports. The Justices of the Supreme Court, attuned to the alter inwards social meanings, strike downward the Missouri Compromise nether the Due Process Clause.

Lessig calls Dred Scott a “blunder” (p. 100). But why is it a blunder according to his theory? Social pregnant had larn deeply contested on this issue. It would receive got violated the Court’s fidelity to role to hold off the other way as well as defer to bulk volition (that is, the bulk volition of 1820). It would receive got been “taking sides” betwixt North as well as South for the Court non to exercise judicial review.

Well, wouldn’t this receive got been contrary to fidelity to judicial role?  Wouldn’t the Court hold off besides political if it decided the constitutionality of the Missouri Compromise?  Not at all. Mark Graber points out that political elites wanted the Court to resolve this number as well as select it out of the hands of politicians. President Buchanan said every bit much. Yes, Republicans disagreed amongst the result, but they were hardly the bulk political party inwards 1857. To live sure, today nosotros are quite sure that Dred Scott was a terrible failure of the judicial role, but inwards 1857 it was what political elites wanted from courts. Deciding these kinds of cases was the betoken of giving courts the powerfulness of judicial review. (The instance of Dred Scott, past times the way, shows the limits of “fidelity to role” arguments, if they are based on judges’ assessments of their role at the fourth dimension they decide, every bit opposed to many years afterwards on.)

The contemporary instance of the work is Masterpiece Cakeshop. Jack Phillips argues that requiring him to serve same-sex couples violates his religious liberty.  The province of Colorado argues that it is applying a neutral law. There is no discrimination. In fact, the social pregnant of that police pull is that it is protecting equality for all.

Phillips responds that what the police pull agency to him, as well as to other conservative Christians, is discrimination against Christians. It demeans them as well as treats them every bit uncouth bigots. For many years, the liberal pregnant of world accommodations laws was uncontested. Public accommodations laws protected equality. Then the underlying facts changed. The gay rights displace persuaded many jurisdictions to add together sexual orientation to the listing of forbidden discriminations.  Religious conservatives felt disempowered as well as discriminated against. They all of a abrupt realized that they were no longer a moral majority. They felt themselves to live a disparaged minority.

Conservative elites understood this. They agreed amongst the critique. And amongst that, the social pregnant of antidiscrimination laws had larn contested, non alone amidst the full general public, but to a greater extent than importantly, amidst elites.  The Supreme Court decided for Phillips on the narrow grounds that the decisionmakers may receive got been prejudiced against him. But the larger interrogation is whether the Free Exercise Clause should trump world accommodations laws that protect LGBTQ rights. If Lessig’s theory is correct, the Court is certainly entitled to create upward one's heed the interrogation that way, fifty-fifty if Lessig himself would disagree.

Lessig is non blind to the problem. He sees that polarization threatens to brand his theory irrelevant, because he understands that his theory is a “nonpartisan” way of looking at the do of judicial review: “so deeply receive got nosotros allowed partisan norms to infect the establishment of the judiciary that nosotros don’t fifty-fifty recognize the essentially nonpartisan grapheme of its past. Not that values receive got been irrelevant or that partisan values receive got non mattered. But the do of constitutionalism stood higher upward them, or beyond them, as well as the sweat to maintain live commitments thought key could thus flourish. That do volition non move a Court perceived past times us all to live political.” (p. 458). 

Lessig is right. His theory is a rational reconstruction of the operate of the Supreme Court inwards a depolarized politics. He is inwards goodness company: This is truthful of most constitutional theories of the 20th century.  If he had finished the bulk inwards the belatedly 1990s, the problems that polarization presents for his theory would receive got been less apparent. But inwards 2019, it is hard non to notice them.