Andre LeDuc (Independent) has posted Who is to Be Master: Accounting for How the Supreme Court Reads the American Constitution (35 Constitutional Commentary, forthcoming) (41 pages) (Reviewing Lawrence Lessig, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution) on SSRN. Here is the abstract:
The review essay begins by analyzing four central elements in Lessig’s account of the fidelity and constraint of meaning and role, the nature of social meaning and understanding, and the nature and role of constitutional translation and two-step originalism. First, the introduction of the concept of fidelity to role fundamentally changes Lessig’s theory. Fidelity to role not only provides a second, important source of constitutional decision; the introduction of the concept of fidelity to role changes how the original concept of fidelity to meaning functions within Lessig’s theory. Second, the introduction of the concept of fidelity to role fundamentally changes the nature of Lessig’s constitutional theory, from a traditional, systematic, holistic account to a pluralist account. Third, this change, while probably the most creative and profound part of Fidelity and Constraint (and perhaps the most creative contribution to constitutional scholarship in the past several decades) is so profound that Lessig himself doesn’t fully appreciate what he’s done. Fourth, articulating how fidelity to role operates and how it is reconciled with our normative discursive social practice of constitutional law are the biggest challenges that Lessig’s theory faces. In particular, the role of role has to be articulated in a manner that makes it consistent with the discursive, normative, performative character of our social practice of constitutional law and harmonizes that role with the demands of fidelity to, and constraint by, meaning. After having constructed a constitutional theory, Fidelity and Constraint undertakes four central missions. The first goal of the book is to redescribe our constitutional history. Many of Lessig’s redescriptions are powerful and persuasive. My focus, however, is on Lessig’s second and third projects. The second goal the book sets itself is to account for the Janus-faced character of constitutional decision, free to determine how to translate historical text yet constrained by that text and the role of the Court in our Republic. Lessig reconceptualizes our understanding of the nature of constitutional interpretation and decision. He makes three principal claims about fidelity to meaning. First, constitutional decision should maintain fidelity to the meaning of the constitutional text. Second, it is the social meaning of the Constitution to which fidelity should be maintained. Third, the original social meaning should be translated into the context of the current case. Lessig’s reconceptualization of constitutional adjudication and constitutional decision is even more brilliant and exciting than Lessig himself understands. Lessig remains enmeshed in the conceptual web of our traditional thinking about some of these questions. I suggest how we might cut him free of some of these constraints. Lessig argues that the fidelity to meaning must be tempered by a parallel fidelity to role. How could judicial decision proceed without some attention to what the Court can do? Constitutional adjudication is a practical, not a theoretical exercise. The resulting pluralist theory that incorporates the duty of fidelity to meaning and recognition of the judicial role is powerful. It captures the contingency of our constitutional decision-making and doctrinal development and, at least tacitly, what judges do when they decide cases. It captures the ebb and flow of doctrine in ways that the express arguments of the opinions don’t always make explicit. Lessig’s express methodological analysis is potentially instructive, but its contribution is undercut because Lessig invokes two radically different methods and resulting theories: those of econometrics and those of ethnography. Lessig’s theory gets enmeshed in methodological claims that he cannot, and need not, sustain. On the one hand, he claims to offer a falsifiable, predictive account of our constitutional practice, along the lines of an econometric model. On the other hand, he characterizes his account as a thick description of constitutional decisional practice over time. The first claim is overambitious and indefensible; the latter characterization of the account is apt and instructive, capturing what we should aspire to in our accounts of our constitutional practice. Those two models fundamentally conflict. Lessig appears unwilling or unable to resolve the manifest conflict between the two methodological models he invokes (it’s not clear that there’s a resolution other than to choose one or the other). The predictive, falsifiable theories produced by the methods of econometrics are fundamentally different from the interpretive theories produced by the methods of social sciences like ethnography and history. The methodological dissonance creates some conceptual static in his account. Lessig doesn’t conceptualize his theory as a pluralist theory. His failure to so conceptualize his account of meaning and role leaves him insensitive to the full descriptive, explanatory payoff that his account of the Constitution delivers. He sees only that it fails to offer a holistic account of our historic constitutional practice and aspirations. More fundamentally, Lessig’s account of social meaning and translation is articulated in a representational account of our constitutional language and knowledge. Lessig sometimes seems to believe that propositions of constitutional law are made true by corresponding with the constitutional text. His account of fidelity to role is inconsistent with such a correspondence account of truth. Lessig should recognize and acknowledge the performative role of the Court’s decisions. For the Court, saying makes it so. Introducing references to truth and correspondence for propositions of constitutional law into the context of the Court’s decision practice obscures far more than it illuminates. The third project of Fidelity and Constraint, to compare Lessig’s account with Bruce Ackerman’s comprehensive high theory of popular constitutionalism, is also illuminating. Lessig refines Ackerman’s theory in a powerful way. Lessig revises Ackerman’s theory, retaining the anti-formal, popular constitutionalist kernel of that theory, while excising the more sweeping theoretical claims that are at odds with our constitutional practices. Lessig accounts for constitutional flux without Bruce Ackerman’s radical theory of a discontinuous popular constitutionalism exercised by the People in constitutional moments that effect constitutional change outside the four corners of the Constitution (and Article V, in particular). Lessig’s implicit rehabilitation of Ackerman’s account on the more modest lines Lessig defends, excluding the New Deal from the litany of constitutional moment and informal constitutional amendments, is persuasive. Lessig’s account is more persuasive because it is a pluralist account; it recognizes that there are multiple sources of decision and constraint that must be taken into account in decision. By showing how such arguments maintain fidelity to role and to meaning, Lessig tacitly explains why such practice has proven so compelling and resilient. I am skeptical that he has shown that it is justified. Fidelity and Constraint’s fourth mission is to justify and defend the nature of the constitutional practice that we have. This may be the least developed argument in the book; Lessig acknowledges how fast his argument goes. I am skeptical that we need to justify our constitutional practice within this practice any more than we need to justify the Electoral College within our political electoral practice or judicial review within our constitutional decisional practice. The bedrock of all is the practice they are a part of.
Posted at 6:32 AM