At Balkinization, Lawrence Solum: Fidelity, Translation, and Originalism: Thoughts on Lessig's "Fidelity and Constraint". Here is the introduction:
Lawrence Lessig's Fidelity and Constraint is an important contribution to American constitutional theory. Although Lessig packages his ideas as a form of "originalism," a close reading of his book suggests that his enterprise is better understood as a version of "living constitutionalism. Originalism requires constitutional practice to be consistent with the original meaning of the constitutional text. Lessig's theory sanctions departures from original meaning in two ways. First, Lessig maintains that constitutional actors should be guided by two, potentially conflicting, duties of fidelity: fidelity to role and fidelity two text. Second, Lessig's understanding of interpretation as translation results in a version of fidelity to text that permits departures from the actual communicative content of the text in order to achieve the purposes or functions that the text. When these two features are combined, the result is a form of living constitutionalism undermines the rule of law and legitimacy values that provide the strongest justifications for constitutional originalism.
And from further along:
Is the constitutional theory advanced by Lessig in Fidelity and Constraint a member of the originalist family of theories? Lessig claims that his theory is a version of what he call’s two-step originalism:
In the first step, the translator understands the text in its original context. In the second step, the translator then carries that first step meaning into the present or target context. (p. 63-64)
Lessig’s formulation of step two is imprecise. What does it mean to carry meaning of the text in its original context into its present context? There are at least two distinct understandings of step two. Call the first version, “step two as construction.” On this version of step two, carrying first step meaning into the present context involves fixed meaning (step one) that is then applied to the current context. Step-two-as-construction would be a member of the originalist family if step two respects the Constraint Principle: this version of Step Two would allow for translation within the construction zone but would not allow for constructions that are inconsistent with the original public meaning of the constitutional text. Lessig seems to endorse this understanding in the following passage:
Within the constraint of the Constitution’s words, the Court seeks to avoid that defeat by a “search for admissible meanings of its words which, in the circumstances of their application, will effectuate those purposes.” (p. 67)
If “admissible meanings of” “the Constitution’s words” are original meanings, then step two is consistent with the Constraint Principle, but it is not clear from this passage whether admissible meanings are limited to the original public meaning of the constitutional text. If Step Two allows for translations that are inconsistent with the original public meaning of the constitutional text, then it sanctions violations of the Constraint Principle—and for this reason, Lessig’s theory would not be a form of originalism.
There is a second possible understanding of step two: call this version “step-two-as-interpretation.” On this version, the meaning of the constitutional text is not the original meaning: instead, judges would construct a counterfactual meaning, imagining that the constitutional text had been written in the current context. This version of step two is inconsistent with the Fixation Thesis, and it is not a form of “originalism”—as originalism is usually understood. Step-two-as-interpretation substitutes a hypothetical counterfactual meaning for the original meaning of the constitutional text.
So, readers of Fidelity and Constraint may wonder whether “two-step originalism” is consistent with the Fixation Thesis and the Constraint Principle. The beginnings of an answer to this question can be found in Lessig’s account of fidelity. …
This post is part of a Balkinization symposium on Professor Lessig's book, which has a number of other distinguished contributors but most of whom are not so focused on the relationship between the book and originalism.
Posted at 6:08 AM