Translating the Constitution

43 Pages Posted: 13 Aug 2019

Date Written: August 9, 2019

Abstract

Lawrence Lessig's recent book, Fidelity and Constraint: How the Supreme Court Has Read the American Constitution (Oxford University Press, 2019), restates and expands his important and influential theory of interpretive fidelity as translation.

This book review is in three parts. Part One explains why, although Lessig's theory is based on fidelity to original meaning, his originalism is unlike most contemporary versions. Indeed, despite his metaphor of translation, Lessig is not really a textualist at all. Unlike most contemporary originalists, he pays relatively little attention to parsing the words of constitutional text, or to their history. Instead, he is a purposivist and structuralist, who argues that fidelity to purpose and structure in changed contexts may sometimes justify departing from the text or adding things to the text.

Part Two examines Lessig’s use of the concept of social meaning to explain and justify many of the Supreme Court’s most famous liberal decisions, including Brown v. Board of Education, the sex equality cases, the reproductive rights cases, and the gay rights cases. Lessig's concept of "social meaning" actually refers to changes in elite consensus among the relatively small groups of elites who form the audience for Supreme Court Justices. Lessig's arguments are an imaginative restatement of the American Legal Process tradition, but using a different vocabulary. In an age of polarized elites like today, however, Lessig's social meaning account threatens to break down, as Lessig himself recognizes.

Part Three considers whether a purely internalist theory of constitutional change like Lessig’s is adequate to explain the growth and development of the American Constitution. It argues that Lessig’s account of change relies too much on how the world looks to the Justices, rather than on how the world actually changes; it also relies too much on winner's history. His account could be made stronger by focusing on the role of political parties, social movements, and state-building in constitutional change; and the long-term construction of judicial review by the political branches. The result would no longer be purely internalist. But it might be a more powerful account of the complicated processes of constitutional change.

Keywords: constitutional interpretation, fidelity, translation, Lessig, originalism, social meaning, Supreme Court, elites, judicial review

JEL Classification: K10

Suggested Citation

Balkin, Jack M., Translating the Constitution (August 9, 2019). Available at SSRN: https://ssrn.com/abstract=3423133 or http://dx.doi.org/10.2139/ssrn.3423133

Jack M. Balkin (Contact Author)

Yale University - Law School ( email )

P.O. Box 208215
New Haven, CT 06520-8215
United States
203-432-1620 (Phone)

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