Translating the Constitution

Abstract

Fidelity and Constraint: How the Supreme Court Has Read the American Constitution is a dazzling book-crammed full of interesting ideas and a wealth of remarkable reinterpretations of the constitutional canon, and written in an engaging and accessible style. As its subtitle implies, the book is a rational reconstruction of the U.S. Supreme Court's practices of interpretation from the Founding to the present. In this process of rational reconstruction of the Court's work, Lawrence Lessig' treats doctrinal developments with charity-some would say excessive charity. Lessig tries to explain, for example, why the post-Reconstruction Court thought that it had to read the Reconstruction Amendments narrowly at the expense of African Americans, why the Lochner-era Court felt it had to protect freedom of contract, and why the same Court felt compelled to strike down Franklin Roosevelt's New Deal programs (pp. 92-94, 130-31, 301, 324-25, 332-34). Lessig explains that the justices did so because they wanted to be faithful to the Constitution's meaning, to their professional role as judges, or to both.

The book makes a descriptive claim that eventually becomes a normative claim. The descriptive claim is that the U.S. Supreme Court has responded to changing circumstances by translating original meaning into new doctrines that may have no basis in the Constitution's text. The justices try to preserve the meaning of the Constitution's text in its original context by producing equivalent meanings in a changed social context. This process of translation is fidelity to meaning (pp. 5, 49-64).

A recurring problem with these translations, Lessig argues, is that they may turn out to conflict with the Court's fidelity to its role as a court of law. Then the justices must sacrifice fidelity to meaning through translation in order to maintain fidelity to role. As a result, the Supreme Court's practice has been shaped by the sometimes competing and sometimes complementary duties of fidelity to meaning and fidelity to role (pp. 18, 43).