HLS Library Book Talk | How the Supreme Court Has Read the American Constitution
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HLS Library Book Talk | How the Supreme Court Has Read the American Constitution

October 8, 2019


JOCELYN KENNEDY: Good afternoon. Welcome to the law
library’s book talk. I’m Jocelyn Kennedy. I’m the executive director
here at the Harvard Law School. Today’s talk is
from a professor who has engaged with the issues of
law, technology, and copyright his entire career. And I mention that because those
issues are very close to us here in the library. Today, Professor Lessig,
who like most of our faculty wears many hats, will be wearing
another one of his hats, that of constitutional law scholar. Before we begin, I want
to thank the dean’s office for sponsoring this event. Please continue to eat your
lunch throughout the talk. And please note that today’s
talk is being recorded. It’ll appear on the law school’s
YouTube channel next week. We’re here to talk about
Fidelity & Constraint– How the Supreme Court Has Read
the American Constitution. Its author, Lawrence
Lessig, is the Roy L. Furman Professor of Law and Leadership
at Harvard Law School. Prior to returning to
Harvard, he taught at Stanford where he co-founded the Center
for Internet and Society and at the University
of Chicago. He clerked for
Judge Richard Posner on the Seventh Circuit
Court of Appeals and Justice Antonin Scalia
on the United States Supreme Court. Lessig is founding board
member of Creative Commons and serves on the scientific
board of AXA Research Fund. A member of the American
Academy of Arts and Sciences and the American
Philosophical Association, he has received numerous awards,
including a Webby, the Free Software Foundation’s Freedom
Award, Scientific American 500 Award, and Fastcase 50 Award. Cited by The New Yorker as
“the most important thinker on intellectual property
in the internet era,” Lessig has focused much of his
career on law and technology, especially as it
affects copyright. His current work addresses
institutional corruption, relationships
which, while legal, weaken public trust
in an institution, especially as that
affects democracy. Professor Lessig I think
will be available afterwards to sign books if you’d like. And the book is for sale
outside of the room. So without further
ado, Professor Lessig. Thank you so much. LAWRENCE LESSIG: Thank you. And I’m grateful to the
library and the law school for hosting this event and the
free lunches that are involved. But I have to say
that I wasn’t grateful when I recognized just
the challenge that I had in presenting this book in the
context of a relatively short talk at a lunch conversation. This is a book that
literally I have worked on the whole of my
career as a law professor. My first article was
the first inspiration for the core of the
argument of– one corner of the argument of this book. And it burdened me for
many, many, many years. And then I realized that
if I didn’t get it out before this current Supreme
Court did all the damage it was going to do, then the
theory I was articulating was going to seem ridiculous
because it might not make sense of the
Court going forward, even though I think it makes
sense of the Court in the back. So I forced myself
to get it out. As you can see, it’s 50,000
pages long, this book. They’ve made it
really tiny print so it doesn’t seem that long. There’s a ton of stuff in it. There’s many mistakes, I’m sure. But I’m going to
try to distill what I think are the core
lessons for how we should talk about the Constitution or
think about the Constitution, and suggest a couple of
implications of that on the way to trying to get questions. And I have some lunch
up here to eat as well. OK. So I offer this as a theory
of constitutional practice in America. So it’s a theory to account
for something the Supreme Court has been doing. And I want to say that
that practice has involved two kinds of fidelities. The ordinary
fidelity, the one we think of when we
think of fidelity, is a fidelity to
meaning, a fidelity to what the words of
the Constitution mean and how do we carry that
meaning into effect. But a second
fidelity that I think is critical to
identify and to reckon in the course of constitutional
history is a fidelity to role. Put simply, like, how does the
institution, the institution of the Court, build the
capacity to be a court or protect the
capacity to be a court for the purpose of articulating
what those words mean? How do you make sure you
have the authority to do what you want to do as a court? And I think we need to
think about the history of constitutional law by
thinking of these two things together, that these
two things together define a certain kind of
practice of the Supreme Court. These two fidelities together
are what we understand constitutional history to be. Now sometimes these
two fidelities work against each
other, sometimes. Sometimes they work with
each other, sometimes. They complement each other. But we should think
about fidelity to meaning subject
to fidelity to role. The practice is
to try to do what you can to succeed in
fidelity to meaning, but you are constrained by role. OK. So let’s start with
what I mean by meaning and then we can talk more
interestingly about role. So the motivation I have in
the conception of meaning is a particular way
of understanding how meaning is crafted. We understand that sometimes
meaning in the Constitution seems simple. So for example, Article
I says that nobody can be a representative
who is not 25 years old or 25 years of age. That’s pretty simple, it seems. We seem to know what that means. But other examples
are not so simple. If I say to you,
meet me in Cambridge while in Boston,
Massachusetts, that evokes one sense
while in London that means a very different sense. So if you want to
be clear about that, you need to say something
different in London from what you might
have to say in Boston. Or if you say,
Richard Branson went to public school, that means one
thing when uttered in Britain. It would mean a
radically different thing if uttered in the United States. So to understand how to say
the same thing in these two contexts, you have
to understand how to render these two
statements differently in these two contexts. So this starts with
the obvious point that meaning is a
function of context and recognizes that
when context changes, we have to at least track how
our explication of meaning should change. So if we try to think about how
to represent it graphically, if this is a text and
we imagine the context and understand that in time
two the context is different, how should that affect
our reading of the text? And one way to suggest
it could affect it is we have a context in text and
then R stands for reading. Changing context
might lead us to have a different kind of reading as
a way to accommodate the change, or you could say
neutralize the change, brought about by the
changing context. And the practice,
the intuition that I suggest is behind this
effort to neutralize change, is what I call translation. Practice of translation
is the practice of taking words
from one language and rendering them in a
radically different way with the objective
to preserve meaning between the two contexts. That’s what I think
this practice is about. But it’s a deeper
sense of translation. It’s a more general
sense of translation that I want to invoke here. It’s a translation to preserve
meaning but, maybe more importantly, to
neutralize context as a way to keep meaning alive. OK. So here’s an obvious example. It’s a wonderful case,
which seems completely unproblematic to us today but
was a really critical case in the evolution of civil
rights in America, United States versus Classic. This case is grounded
on Article I’s structure for electing
representatives to Congress. Article I, section 2 says
that the electors who select members of Congress
are the people who would be qualified to
select representatives from the largest branch
in the state legislature. So that means voters. But section 4
describes the place where they exercise their
power as, quote, “elections.” So what does election mean? Specifically, is a
primary an election? Because the thing
about an election is once an election is done,
you know who an officer is. But a primary doesn’t
select an officer. The primary selects
somebody who’s allowed to run to become an officer. So if the primary doesn’t
actually elect someone, is a primary
properly an election? Now the Supreme Court
answered this question in the case Newberry versus
the United States and said, no, a primary is
not an election. And what that meant
was Congress could not regulate a primary because
Congress only had the power to regulate elections. And so what that meant
is that, in the primary, you could have things like the
white primary, which would not be subject to federal
law because it’s not an election for
purposes of federal law, at least if it’s run
completely, quote, “privately.” And that’s what
the fight in Texas was about when Texas was trying
to defend their white primary. And in the case of United
States versus Classic, it was a more crude effort
to exclude African-Americans where, in the primary, basically
black votes were thrown away. The federal government
tried to prosecute that by saying that’s voter fraud. Their defense was
you have no authority to regulate voter
fraud in a primary, because you don’t have any
authority over the primary. Under Newberry that was true. And in Classic, the
Court reversed it. And it’s the methodology the
Court used in reversing it that I want to emphasize here. The Court says, “We may
assume that the framers of the Constitution in
adopting that section did not have
specifically in mind the selection and elimination
of candidates for Congress by the direct primary any
more than they contemplated the application of
the Commerce Clause to interstate telephone,
telegraph, and wireless communications, which are
concededly within it.” To decide this case, “we turn
to the words of the Constitution read in their historical
setting as revealing the purpose of its
framers and in search for admissible
meanings of its words, which in the circumstances
of their application”– should say today– “will effectuate
those purposes.” That’s the structure that I’m
elevating as a general method the Court is adopting. Hence we read its words,
“as the revelation of the great purposes
which were intended to be achieved by
the Constitution as a continuing
instrument of government.” This is translation. You read, quote,
“elections” to accommodate what is not an election from
the standpoint of the sense of the meaning of that word. But you do it because
of fidelity to something more fundamental in
your understanding of what the Constitution
was trying to achieve. And I want to suggest this is
the practice of the Supreme Court on both the left, what
we think of as the left, and on the right. So the most famous
example of translation like this on the
right is the fight about so-called federalism
in the Supreme Court. At least according
to the federalists– or the modern federalists, maybe
not the original federalists– the Constitution presupposed
a certain balance in regulatory power. It imagined there
would be some power in the federal government,
but most of the power would be held in the states. But the original
rule that articulated the scope of federal
power in Gibbons gave a formula for
federal power that said that the
power would include activity between the states– interstate commerce– activity
in one state that affects other states– the effects component
of interstate commerce– an activity that doesn’t
go between states or doesn’t affect
more than one state but which is necessary to
regulate in order to regulate number one and number two. OK. When you add these
three branches together, the consequence
of that formula is that it may have been limited
federal power back then. But the power is a
function of the nature of economic integration. And as the economic integration
of the nation grows, the consequence of that is
congressional power grows. Now as that happened, at first
the Court just ignored it. Even though there was dissenters
that said, hey, wait a minute, we’re destroying the
Federalist balance here. But eventually, the Court came
around to trying to correct it. And what I want to say is, we
should think of that effort at correcting as a
kind of translation. They were crafting limits
on Congress’s power in the name of a
founding value, what they viewed federalism to be. These limits were made up. Like, they’re not in the text. They’re just kind
of made-up rules for saying, Congress
can’t regulate here, even though it can
regulate there. So for example,
they said, there’s a difference between direct
and indirect effects. They said, commerce is not
manufacturing, which is true. But under Gibbons, you should be
able to regulate manufacturing if it helps you to
regulate commerce. But the Court said,
well, forget all that. We’re going to create
these made-up limits in the name of fidelity
to a framing value, which is the value of federalism. And if this is justified–
and I agree this is a huge if. I don’t want to
presuppose anything here. But if it is justified, it is
justified through this thing that I’m describing as
a kind of translation. Example on the left, maybe
the most understandable is the example it comes out of
Olmstead versus United States. So Olmstead involved this
guy, who was a police officer and also one of the most
important criminal syndicates of illegal prohibition. It was a case that was
built on wiretapping. The federal officers and state
officers, but prosecution involved the use of wiretaps. The wiretaps were affected
by basically connecting an attachment to the
wires of the telephones as they left Olmstead’s home. So that means there was no
need to trespass in order to wiretap Olmstead’s
conversations. The Fourth Amendment prohibits
unreasonable searches and seizures. And the understanding
of the context within which that
prohibition exists was searching that
involved trespassing. So the idea was this prohibited
or limited your ability to trespass on someone else’s
property to search or seize. And you needed either a
warrant or you needed an effort to justify after the fact that
it was reasonable to do that. The government said, wiretapping
involves no trespassing so there should be no limits
on our ability to wiretap. And Chief Justice Taft
said, yeah, you’re right. There’s no violation
of the Fourth Amendment when you wiretap, because
there’s no trespassing when you wiretap. So if there’s no
trespassing, there’s no trigger for the
application of the protection of the Fourth Amendment. But Justice Brandeis
in dissent gave us a conception of the Fourth
Amendment, which is directly a conception of translating the
scope of the Fourth Amendment. What he says is,
what we have to do is to read the Fourth Amendment,
the adaptation to a changing world, so that it’s,
in effect, protecting the same scope of
our privacy as it would have protected in a world
where the only way to penetrate privacy was through trespass. In effect, translation. And 40 years later in the
case of Katz versus The United States authored by the
law clerk Larry Tribe, the Supreme Court eventually
adopted this reasoning in crafting the scope of privacy
not on the basis of trespass but on the basis of reasonable
expectations of privacy. So this is, in a
sense, a translation. That’s what it should be
understood to be, I think. And the law then said, see,
this is a translation too. Again, it’s a made-up
limit on the scope of government’s
power, not in the text if, in fact, the text is as
the Fourth Amendment said. And if it’s justified,
maybe again a big if, it’s justified
through something we could call translation. Both of these cases then, there
is a value that is preserved. The context has
been neutralized, no doubt imperfectly–
always imperfectly. But arguably better than doing
nothing, at least sometimes, if indeed fidelity is the
objective– fidelity to meaning is the objective you’re
trying to evince. OK. But this translation
is obviously difficult. It’s institutionally difficult.
As the gap grows between texts and application,
and as the values that you are translating
become more contested, the pressure on the
translator, the Court, grows. Sometimes it grows slowly over
time, increasing resistance. Sometimes it’s not as slow
a growth of the resistance. And so in both of these
cases, the question the Court needs to
ask is, what do we do in the face of
this increasing resistance to our translation? So in the context of
federalism, 1929, of course, was the moment of
the Great Depression. That Great Depression triggered
an extraordinary range of changes. Many had nothing to do
with economics directly. Thurman Arnold describes,
“When institutions function adequately, the theories
which support them also appear to be adequate, because
they are never called upon to solve practical problems. The very success
of the institution prevents anyone questioning
its underlying theory.” “The lack of faith
in the future is not caused by specific
legislation or the advocacy of specific objectives. It is the failure of practical
institutions to function which has raised doubts in
the heart of conservatives”– practical institutions that
were producing a growing economy and all a sudden their
economy had collapsed. He says, “20 years ago, no
one worried about socialism, because it was”– now,
he’s writing this in 1939. So it’s not today
we’re talking about. But “20 years ago, no one
worried about socialism, because it was thought to
be impossible, just as water running uphill is impossible. Automatic economic
laws prevented it. Today we see before us
both fascism and communism in actual operation with their
governments growing in power. Economic law no longer
prevents such types of control. The only bulwark against
change is the Constitution. But with the disappearance
of the economic certainties, the actual words
of the Constitution no longer appear
like a bulwark.” So the point is as this
reality makes us increasingly uncomfortable with what we
think about the world around us, it becomes increasingly
difficult for the Court to resist the charges of
people like Franklin Roosevelt that the Court is
acting on the basis of their personal
economic predilections, not on the basis of the law. And Roosevelt worked very hard
to render the Court political, to render them
partisan, by saying that their judgments
were judgments motivated by political values,
not by the certainties of the Constitution. So as the Court becomes
rendered political, the question the Court needs
to ask is not just what’s true, not just what does
the Constitution fidelity to meaning require, but
increasingly, what can we do? What can we the Court do? How much can we continue to
do in the name of carrying into effect our conception of
what the Constitution requires? Question becomes, do we stick
to the truth, federalism, or do we yield to the pressure– the pressure that says
that, give up this fight in the name of federalism
because this fight is not one you will win. 1937, the view is
the Court yielded. Jones & Laughlin is that case
where the most dramatic shift happens. Four years later, Darby
seems to confirm it. And then a year later,
Wickard, as we look back on it, seems doubled down
in the confirmation. But what’s incredibly
interesting about the history of Wickard is the untold part
of the history of Wickard. So Wickard involved this
guy, Farmer Filburn, who wanted to grow wheat on his
cattle farm to feed his family and some of his cattle. This wheat was never going
to travel off the farm. It was going to be
consumed on the farm. It wasn’t sold to anybody. And so when the government
tried to tax him because he was growing more
than he was allotted permission to grow, he challenged
it as saying it was beyond the commerce power. And the question the
Court had to answer is, is homegrown wheat that
is neither commerce nor interstate, indeed
it’s intrafarm, exists within the scope of
the Congress’s commerce power? The Court, of
course, said it is. But what Barry
Cushman has shown us is that, in fact, the
Court struggled mightily to reach that conclusion. And there’s a
period of time where it looked like Jackson was going
to write an opinion striking the law down. And so as he describes,
Jackson eventually comes to a recognition that, in
such a state of affairs, he says in a memo to
his clerks bizarrely, the determination of the
limits of Congress’s power is not a matter
of legal principle but of personal opinion, not
one of constitutional law but one of economic policy. And what that
leads him to say is that if this is just economic
policy that would determine the limit between federal
power of commerce and state power of commerce, then economic
policy is inappropriate for us to be determining. And if it’s inappropriate
for us to be determining it, we should withdraw
from this determination even if we believe, as I
think a majority of that Court believed, that Congress had gone
beyond the scope of Congress’s commerce power. So fidelity to meaning
would have said one thing. But fidelity to role led
the Court to step back from articulating that meaning. And that fidelity to
role, I’m going to say, is a fidelity to the
fidelity to role. As the Court was
rendered political, it finds a way to
retreat, or at least when retreat would be
rendered political, it decides not to retreat. This is another
more recent example. I’m sure all of us are familiar
with Planned Parenthood versus Casey. The extraordinary joint
opinion in Planned Parenthood versus Casey is an excellent
example of this fidelity to role analysis. The Court decides
not to overturn Roe, even though probably one,
maybe two of those justices certainly would never have
voted for Roe originally. And the Court explains this by
saying, in the present case, however, as our analysis
to this point makes clear, the terrible price would
be paid for overruling. “The Court’s power lies– in its legitimacy, a product
of substance and perception that shows itself in
the people’s acceptance of the judiciary
as fit to determine what the nation’s laws mean and
to declare what it demands.” On the principled choices– sorry. “Thus, the Court’s
legitimacy depends on making legally principled
decisions under circumstances in which their
principled character is sufficiently plausible”– we have to be able to
see them as principled– “to be accepted by the nation.” The Court must take
care to speak and act in ways that allow
people to accept its decision on the terms
the Court claims for them as grounded truly
in principle, not as compromises with social
and political pressures having as such no bearing
on the principled choices that the Court is
obliged to make. So here the Court’s
saying openly, we need to decide
this as a function not just of what we think
the Constitution means but also as a function of
how we will be perceived in deciding that case
according to what we think the Constitution means. And we will be
perceived in this case as a bunch of justices appointed
by Republican presidents for the purpose of
overturning Roe versus Wade. And so it will be
seen as an attempt to amend the Constitution
outside of an ordinary way of amending the Constitution,
which will undermine the legitimacy of the Court. Thus even if it was
originally wrong, which I think to a majority
of the justices Roe was, reversing because of
politics weakens the Court. This is fidelity to role. And a critical implication
of fidelity to role is that the obligation of
fidelity to meaning remains– there’s a continuing
obligation to translate– even if we can’t
do it right now. So even if we can’t
now because of context, or contestation of the politics,
or because we haven’t developed the right tools, even if there’s
no legal tools or no public will, still, if later the
tools emerge or the public will revives, then we should revive
the objective to translate that original meaning. So the Court did that. It tried it in National
League of Cities with the federalism fight. Nine years later, it retreated. Discovered again this was
too difficult. In Lopez, it tried to do it again
with the federalism fight. Gonzales versus Raich. Homegrown marijuana. Basically gave up. Retreated. The Obamacare case is
a really elegant effort to continue the
Commerce Clause fights. Not clear when or whether there
will be a retreat from here. But the point is this
ongoing obligation to translate remains. And the only
question is, can you craft the right
tools to achieve it given the context and
the political character of the time? So in federalism, the pattern
has been something like this. There’s an original
understanding the federalists say. There’s a translation of that. There has been a
retreat and a revival. And this has been
repeated, this cycle of retreating and
reviving, retreating and reviving, as
the Court continues to try to advance that purpose. And I’m going to just
make a very brief signal towards the other really
important example of this, which is the Civil
War amendments. So as you know, the
Civil War amendments evinced a commitment to
change not just the law but the culture of America. It was a deep commitment
to transformative constitutionalism. And as you also know,
that change stalled or that change was
stopped by white terrorism across the South that basically
made it impossible to carry into effect the fundamental
commitments that Reconstruction had hoped for. The great hope of Reconstruction
was, in this sense, I think, killed between the period– it’s not a sharp line, 1877. I think there’s lots that’s
going on in the Justice Department after 1877. But in the political space,
basically 1877 to 1954, the Court can be read
to be retreating. The Constitution’s
original meaning from the 13th, 14th
and 15th Amendments are increasingly suppressed. We could say the founding
values are betrayed. There is an infidelity to
meaning in this period. But it’s because of a certain
kind of fidelity to role. I want to resist here the idea
of these evil judges doing terrible things while
good America wishes them to be doing the right thing. I want to recognize
here what we had is an evil and
racist America that was constraining the judges. Not that they were
all enlightened, but they had a very clear
sense of what they could never get away with, how
far they could never press this constitutional
meaning, until– maybe it’s ironic, I don’t know. But until the most evil– Hitler and World War II and a
fight about racism in Europe– made equality
possible in America again, because after World War
II, the question was raised. Indeed before World War
II, Southern racists said we shouldn’t
fight Nazism in Germany because then what would
that imply about racism in America’s South. So they said, stay
out of that war, because it’s only going
to come back and bite us. And so that’s exactly
what happened. After that war was fought
in the name of ending racism in Germany, in America
it was no longer plausible to
continue to overlook the deep racism in America. And that triggered the revival
of these values in 1954 with respect to race. And then from 1967 on,
a translation of those values with respect to sex
and sexual orientation. So if this is
federalism, this is what the equality looks like. We have this original
value, this aspiration of transformative
constitutionalism, an immediate retreat, or a
practically immediate retreat, a revival of the original values
in this period ’54 to ’67. ’67 is when the end of
anti-miscegenation laws happens, and then
translation from ’67 on to reach other
values beyond race. OK. One final point then
I’m going to stop, because I wanted to
stop five minutes ago. What are the sort
of core lesson here? So I think that we need to
think more systematically about how constitutional law
lives within certain kinds of constraints. The one we focus
on so much is text. We have to unpack
more effectively the constraint of context. And the context
here includes us. And I mean specifically us
as an elite legal actors, but not just us as an
elite legal actors. I mean like our
culture as a whole. Our beliefs, our expectations,
our understandings in a critical way
constrain the Court. Sometimes that constraint
enables fidelity to meaning. Sometimes that constraint
resists fidelity to meaning. And so in a certain
sense, we too become part of the Constitution. This constraint becomes part
of what the Constitution is regardless of the texts. What the Constitution
is is always defined by the
possible, the possible of what the Constitution
will be allowed to be, given that constraint. And this is, in
some sense, I think all that really ever matters. This is the product
of 25 years of work that all that really
matters in some sense is this constraint of us in the
project of constitutionalism. It’s a kind of populist
constitutionalism, then, that I want to defend as
an account of where we’ve been. Obviously, not often great,
indeed often quite awful in what it produces. But in some sense,
it’s our only hope if this is the nature of the
Constitution we have crafted. And it gives us a path
forward, because I believe that if we
build an understanding in popular culture of what
the Constitution needs to be, without even amending
the Constitution, if we build it, then the
Court will eventually come to it regardless
of the text and despite the political
predilections of those justices individually. OK. That’s all I’ll offer. And eager for your
questions [INAUDIBLE].. [APPLAUSE] So I guess there are mics
that are going to go around. Or yeah. AUDIENCE: When I was an
undergrad a long time ago, I read a book called
Government By Judiciary. And Raoul Berger
was actually arguing that the justices
of the Supreme Court were really wildly
reinterpreting due process, and privileges, and immunity,
especially with regard to voting. So would you consider he’s
arguing for fidelity, I guess. LAWRENCE LESSIG: Yeah. AUDIENCE: So when you say
that they’re going back to the Reconstruction,
the Reconstruction people weren’t really saying what the
Supreme Court did with regard to voting or even
with regard to Brown versus Board of Education. LAWRENCE LESSIG: Yes. Well, I’m going to bracket
Brown for a second, because I think the other point
you’re making about voting, and privileges or
immunities is directly on point to what I’m arguing. So as I try to
develop in the book, I don’t think the
interpretation the Court makes in the Slaughterhouse
cases and then later in the voting
rights cases before 1950, before Brown, is plausibly
understood as fidelity to the meaning of those
constitutional texts. It’s not. I mean, the
Slaughterhouse cases, which basically completely guts
the Privileges or Immunities Clause, was obviously
not consistent with what was understood at the
time about what that clause was meant to achieve. But as I tried to
argue in the book, we can see how Miller
in that context is trying to avoid
the Court bearing the burden of articulating
what the privileges or immunities will be. And indeed that
opinion explicitly leaves open the
power for Congress to articulate through federal
law what those privileges or immunities should be. And the Court seems to say
that it would enforce them. So I think that that
opinion, and the later voting rights opinions are
the same, evinces this sense of them having a very
clear sense of how much they can or should go with. Now the place I would get
off the train with Berger, though, is that his
conception of meaning is very much like Scalia’s
conception of meaning. I describe what I think
of as one-step originalism versus two-step originalism. So the one-step originalist
says, go back to the framing and ask the question, what
would the framers have done with the following question. How would they have answered it? And then take that answer
and come back to the present and apply it. So Scalia talks in his
paper about originalism, what would the framers
say about flogging? Well, go back there,
ask them that question. Look around. They would say, well, flogging
is not cruel or unusual. It’s what we do all the time. So the answer is flogging
is, in 1791, constitutional. Grab that answer, and run back
to the present, and apply it. Yes, flogging is constitutional. Scalia says, I think I’m a
faint-hearted originalist, because I’m not sure I would be
able to reach that conclusion, but that is the
right answer from an originalist perspective. And Berger was
similar in the sense that it was one-step
originalism. But what I’m offering is
translation is actually two-step originalism. Translation says find
the answer in 1791, and then find the
equivalent today. And the equivalent might
be the opposite conclusion. Might be you say it’s
constitutional in 1791 and not today. But that’s a function of
your effort to translate. AUDIENCE: I’m curious. What are your thoughts on the
ways in which the Court has the capacity– because
I liked at the end you talked about how the
Court in a certain way is compelled by we the people. But what happens when
the political process that the Court tries
to steer clear of appears to subvert the
will of the people? I am thinking in particular
about Rucho v. Common Cause where the Court said,
yeah, we get that this– Roberts even conceded this is
crazy partisan gerrymandering. But that’s not our field. We can’t really step in. LAWRENCE LESSIG: Yeah. So I actually, even
though obviously– I think it’s obvious. But my politics are not
Roberts’ politics at all. I think Roberts is a brilliant
fidelity to role Chief Justice, and that most of the
interesting things that he’s done–
not all of them. I think his dissent in
the gay marriage case is just terrible from
this perspective. But the Rucho case,
the citizenship case, Obamacare case– these
are all cases that are only explicable if
what you’re focused on is the fidelity to role
obligations of the Court. So in the Rucho case, I think
what Robert– and Roberts says this explicitly. Roberts says, look, especially
in current partisan times, if we took up the challenge
that Kagan tells us we should take up to adjudicate
every single jurisdiction and decide which gerrymandered
jurisdictions violate the Equal Protection Clause and which
don’t, when we come down with a decision,
we’ll give our reasons citing political scientists
and citing Nick Stephanopoulos’ great work. We’ll give lots of reasons. But the ordinary
man, Roberts says– he says the, quote,
“ordinary intelligent man,” quote unquote– I don’t want to get in
trouble for using his words but those are his words. The “ordinary intelligent
man” will say bullshit. He doesn’t say that,
but I’ll say that. He’ll say, bullshit,
it’s not about those– it’s about the fact that
these are Republicans and that’s a Republican
district they’re upholding. And indeed, when you
recognize that most states are Republican, and on
average they’ll probably not all be illegal,
they will be upholding mostly Republican states. And so it will fuel this
increasing partisan framing of what the Court’s doing. And so what Roberts is
basically saying is let’s just stay out of that,
because we’ll never be able to decide this case
in a way that makes clear that it is the rule
that’s guiding as opposed to our politics. The citizenship
case is even more– like, obviously that’s right. So the citizenship case,
where the Court basically says that the
administrative decision to allow the citizenship
question on the census was pretextual is, from
administrative law perspective, bizarre. Thomas has a wonderful
dissent where he’s like, are you kidding me? When has it ever been the case
that an administrative decision is struck down because
you say it’s pretextual? They’re all pretextual. Obviously, administrations make
decisions for political reasons and then justify them
for legal reasons. But he strikes it
down as pretextual because he saw this
extraordinary evidence that was coming up demonstrating
the deep corruption that had gone into the decision
to make this decision hang on citizenship or not. And I think he was just
avoiding the embarrassment. Indeed, he directly cites
Friendly where Friendly says, you know, we don’t have
to be blind in a way that ordinary people can
see, meaning ordinary people are going to see this
as a completely corrupt political thing that they did. We don’t have to box
ourselves into assuming that’s exactly what it is. So I think he is revealing
this consistently. And he gives me hope that this
balance can be maintained. Other justices– you
know, obviously, I’m going to say this about
people on the right, but maybe people will say
the same thing on the left. But I think other justices
are less constrained. I know Scalia didn’t
give a damn about the institutional bullshit. I mean, he’s like, no. It’s just what’s the right
answer from my perspective. And let’s just do it if we can. AUDIENCE: First, I think
it’s a splendid book. But I do wonder where you place
yourself with regards, say, to Alex Bickel and the notion
of passive virtues, which basically I think were
institutional constraints, and then Jerry Gunther’s
critique of Bickel as winning a Court that’s 100%
principled 20% of the time. Could that be part of
an analysis of your work that you really do
want a principled Court but it can’t be so
100% of the time? Do you have any percentage
in the back of your mind? LAWRENCE LESSIG: Yeah. As much as possible. Principled as much as
possible, recognizing that they’re going
to be cowardly so they should probably
do it more than they think is possible, but as
much as possible. And so I completely accept. I think this is– my
work is completely continuous with Bickel and even
to do with the Harvard process school. The place that I think I want
to add something new to it is that I don’t think,
a la Hart and Wechsler, that what’s ultimately
constraining here are a set of principles as much
as a set of social meanings that are contingently
constructed in any particular
historical moment. And the reason that’s an
important distinction to draw is that if you understand the
constraint to be social meaning constraints, there’s a
strategy for changing them. Like if you understand– I mean, the
extraordinary history that you and I are covering
in our Reconstruction course, Gates’ new book about Jim Crow
and the late period of Jim Crow, the extraordinary
part of that history is the efforts made to
construct inequality through the construction
of social meaning representations
of black Americans and white Americans
that would render them unequal in the public’s mind. That was a effort at
creating a reality that then the law made sense with. And that effort
was self-conscious. It was very much about how do
we make these social orders seem sensible given the understanding
of the underlying facts. And I think that’s how
we should understand the current set of
constraints that we happen to find ourselves with in the
reality of the constraints that I think
constrain the Court. Because if we understand it
like that, then it’s like, OK, what would we have to do to
change these meanings to make it different? Like some of them we like. Like I’m all for the
constructed social meaning around gay rights that
produces a court, even a conservative court,
to say hell no. It makes no more sense for the
law to draw lines in this way that burden people on the
basis of sexual orientation or choices about sexual
behavior like that. So that, as a social
mean, I’m all OK with. But to the extent
there are others that draw the Court
in a way that I think we would want it to be
drawn differently, thinking about it as social meaning
as opposed to principles gives you a principled way
to think about changing it as opposed to saying,
well, on principles, we’re going to– we need
different principles. So that’s a distinction
from the earlier work that I think is an
important reason to– not to disagree with that work
but to see how to extend it. AUDIENCE: Professor
Lessig, thank you so much for talking today. You’ve given a descriptive
account of fidelity constraint in popular constitutionalism. How would you give a
normative assessment of that descriptive account? LAWRENCE LESSIG: Yeah. So yeah. I think in a Dworkinian or
maybe a Davidsonian sense, theory is about fit
and justification. So you’re right. I’m saying that if
you add fidelity to role into the fidelity
of meaning account, you’re going to have a
descriptive fit that’s much better than Ackerman’s
account or other accounts to try to tell the story
of constitutional history. The justification
for it ultimately ties back to the same
point about social meaning. Would you want a
constitution like this? Would you be happy to
have a constitution that is constrained by this kind
of social meaning dimension? And in one sense, the
thing about social meaning is it’s quintessentially
democratic. It’s like something that’s
out there in our minds and can be driven by democratic
development or evolution. So in some sense you would say,
I like it for that feature. And the other part
that I like about it is given the constraint on
amending our Constitution, it is a way to both
play the fidelity game and the updating
game effectively. Now, I don’t like the fact that
we have a constitution that can’t be amended. I think it’s a terrible
flaw in our Constitution. There are many– I
mean, I don’t think it’s as flawed as Sandy does. But I think there are
lots of flaws we can identify in the Constitution. So I’m not saying this is the
best of all constitutions. But I’m saying given the
starting point of that, I think I would be happy
justifying most of the practice that I’ve described. But if, you know, part of the
reason of putting it together like this is if you
don’t like the practice, you don’t like the
idea that in some sense the Constitution’s meaning
is a function of what we are going to be taking
for granted in the background of our political culture,
then at least it’s a way to isolate how we
should go about changing it. And that’s good too. But I wouldn’t be on that
side of that argument. AUDIENCE: Hi. Thank you for the very
fascinating primer to the book, which I will go and read. Historically, you
mentioned a number of cases where it
seems fidelity to role was the sort of trumping
factor in this balance. But have there have been times
where fidelity to meaning has been the deciding factor? And then looking at
it moving forward, do you believe that there are
times when the balance should just be tossed out
and maybe something is so fundamental to the
constitutional makeup that fidelity to meaning
needs to hold forth over this fidelity to role? LAWRENCE LESSIG: Great question. So yes, I think there
are plenty of examples. So I would say all of
the cases of translation where there’s this change
in the face of what seems to be texts
to the contrary are examples of fidelity
to meaning winning out over fidelity to role. Sometimes it’s easy
when the result conforms to our
taken-for-granted political views, it’s easy. So in 1967, as elegant as Katz
versus the United States was, it wasn’t terribly surprising. It’s not like that
innovation, that translation, was institutionally
difficult for the Court. I mean, of course, it fed
the view of the Warren Court as a kind of make-it-up court. But it, politically,
culturally, was not troubling or problematic. The hard question is when you
can see the Court justices believing here’s what
meaning requires. But I know looking
around everybody is going to hate this. They’re really
going to hate this. And I’m not sure right now I
would pick particular examples where I think that they’ve
necessarily done that, because I think
constraint of role has been really powerful
and overwhelming. So yes, all the time,
but not many times where it’s deeply costly. And yes. So should there be times when
you just say meaning be damned? I hope so, because I think the
ultimate objective is meaning. I think the ultimate
objective is preserving a constitutional
fidelity to meaning. I think the institution
of the Court just has to be aware
of how much it can do. And I think it should recognize
that, again, as I said, it’s going to be cowardly. It can probably do more
than it thinks it can do. But it can’t do as
much as it can do. I mean, I’m glad to see
my friend Andre Shio here who brought me to Eastern
Europe a long time ago when he was running CEU. And I spent a lot of time
in that area thinking about the problems there. And we spent a lot of time
talking about the Russian Constitutional Court after– under Yeltsin. And you know, Vladimir Zorkin– Vladimir or not–
anyway, Zorkin, who was a law
professor who became the head of the Constitutional
Court– terrible idea– conceived of his
role to be to lecture Yeltsin about the meaning
of the Constitution. And he was
extraordinarily activist and like going out there and
declaring all sorts of things unconstitutional. And indeed, one time
Yeltsin gave a speech. And he went on– and Zorkin went on television. Declared the speech
unconstitutional, because he believed
his job was to bring the meaning of the
Constitution into reality. And the only way to
do that was to be as– and I remember,
because I went there after it happened,
Yeltsin sent tanks in, and surrounded the
court, and shut it down. I mean, here’s just
as blatant an exercise of power against reason
as you could imagine. And you know, Todd Zorkin,
to behave in the right way– he’s still on the court today. He’s not the chief, but
he’s still on the court. And he’s a completely
different kind of justice. But that’s an example
of going too far, not recognizing you can’t take
for granted your own authority. You have to construct it, and
sustain it, and develop it. And that’s going to be
hard to do even if justices don’t necessarily do it enough. AUDIENCE: I have a
question about when the roles of the
Supreme Court operate in tension with one another. Some would say that the
role of the Supreme Court is, for example, to
protect minority voices. And we see the Supreme
Court making a distinction between racially discriminate
impact versus racially discriminate intent. That, ultimately, makes it
almost impossible for laws that have racially
discriminate impact that uphold, in a lot of
cases, white supremacy to be litigated through the Court. So I’m seeing this
sort of tension that arises that the Supreme
Court ultimately always chooses the role, like,
to protect itself as a branch of the
judiciary while giving up the role that a lot
of people would say is foremost in
checks and balances. And so I’m curious about how
you hold when the roles clash. LAWRENCE LESSIG: Yeah. I would hope one could
use this book to say, you know, imagine this
kind of therapy session with the Supreme Court,
not individual justices but with the Court as a whole. So the therapy session
will go something like OK, look, here’s
how to understand this way you’ve gone forward. Like you’re trying on the one
hand for fidelity to meaning and you feel yourself
constrained by fidelity to role. And in that conversation,
I would personally say to the Court,
you’ve not been bold enough to carry into effect
meaning in many, many cases. And race is one of the
best examples of that. The Court would say
in response, well, you should understand
our constraints. You should understand–
and I would say, look, you, the Supreme
Court of the United States, should not worry as much
about your constraints as maybe courts in
Eastern Europe or Russia need to worry about constraints. That would be the conversation. But my point is it wouldn’t be
obviously wrong what I’m saying or what they have done. It’s a beginning of
a conversation that’s now channeled the understanding
in a way that isolates the two problems and helps
you test whether you think the role constraint is as
real as you say it should be. So I give an account of the
evolution of the race cases, both the affirmation of
the Brown right and then the compromise in the
context of affirmative action and what drives that compromise. And so I think there’s
no doubt that you could say one part
of the thing that’s driving that compromise
is a blindness of justices themselves, no doubt. But I’m saying
another part of it is their appreciation or sense
of a certain kind of constraint the culture is bringing
to them driven politically by Reagan’s Justice Department
that begins to render that whole effort as
political in a way that it hadn’t been
even under Nixon. So those two things are there. How much one accounts
for it versus another is anybody’s judgment. I just want to isolate them
so I know which one to work on and how to work on them
given the differences between the two. AUDIENCE: Professor, thank
you so much for being here. I’m right here. LAWRENCE LESSIG: Oh. AUDIENCE: Yeah. You began your talk by
saying that you wanted to get this book out
right away because you weren’t sure the framework was
going to hold up going forward. Can you speak about
that just a little bit? LAWRENCE LESSIG: Yeah. I mean– so Jack
Balkan ran a really great little online
symposium about this. And Sandy was a contributor
to that symposium. One of the themes
in that symposium was that a lot of this way
of thinking about the Court’s position was contingent on
a political culture that imagined something beyond the
partisan understanding of law that we seem to have
embedded so deeply right now. And so I think that’s true. And at the end of the
book, I reflect on, is this even understandable
in a current political context where we have so fragmented
on partisan grounds in our understanding of the law? And so when I’m
confessing my anxiety, it’s that if that
continues in that way and you don’t have a really
effective counter to that, which I’m suggesting Roberts
plays that role to some extent but not enough, then
at a certain point it’s just going to
seem just like politics completely, not in the
legal realist sense or even the critical legal
studies sense, but in a completely obvious
political sense that there’s nothing more than politics. Now, I think indeed that’s the
way the media now characterizes the work of the Court. Everything is cashed out in this
kind of four justices appointed by Democrats, five justices
appointed by Republicans, or six, whatever it is. And that only
reinforces this sense. And so I was eager to
articulate this at a moment where there’s at least some
of us who still could engage in a discourse that imagined
a different world from the one that I think most of
us live in right now. I’m reminded again that one of
the conferences that Shio ran– I always attribute
this to you, Andre. I should probably
deny it was you. But there is a wonderful moment
where an American legal law professor got up. And he tried to lecture
the Eastern European law professors about legal realism. Like they were
talking about law. And he got up and he basically
said, it’s just politics. There’s no law. I mean, it’s just power. It’s just power
expressed through law. And this is what legal
realism is taught. Critical legal studies has
taught even more effectively. You just need to
understand this. And somebody, and I think it’s
Shio, but again he’ll say no. But somebody responded
by saying, you know, it would be a disaster if we
thought of law in that way. If judges in the
post-communist period thought of law as just
politics, we could never enforce civil rights. We could never stand
up to the state. We could never have
a legal culture that could resist the
forces of power in politics. So we need to think about law
not in this legal realist way, but in a more German
formalist kind of way. That’s why we need
to think about it. And what was striking
about that is it was an explicit
understanding that our way of thinking about law itself
was socially constructed and that we should pick which
of the social constructions is actually conducive to
the kind of legal culture or the kind of political
democratic culture that we want. And it was very
sharply presented in that post-communist
moment, which one they needed. And I think part of my lament
in the book is I’m not– I’m anxious about us walking
too far down that line here too. Because I think that the
Court, however flawed, how many mistakes– I’m not praising
any golden past– but how even with those
flaws, how much good something like this channel of
politics is in the context of a democratic republic. AUDIENCE: Thank you, Professor. Do you think at times
justices inaccurately assess the political boundaries
within which they operate, meaning is there a mismatch
between social meaning and social meaning as
construed by the justices? And if there is,
what are the causes of that and some of the
implications of that for your theory? LAWRENCE LESSIG: Yeah. Obviously, there’s a mismatch. And you know, one of the biggest
questions that the book raises is why should we imagine– I mean Jack Balkan’s essay
basically puts this directly. Why should judges
be in the business of social meaning arbiters? You know, they’re
typically old white men. So why are they– not all of them but the norm. So why are they good people
for making this arbitration? Why shouldn’t we look
to the political process or something else? And the answer is not
that they’re good. Indeed, they’re not good. The answer is just that
they might be better than any other
institutional actor. I mean, the political process? Give me a break. I mean, that’s another chunk of
books that we can talk about. But the political
process is no better. And the ordinary
unorganized public is no better, because
the whole point is reflecting on
the consistencies or inconsistencies of social
meaning at any one time and deciding what
to do about it. The judges are bad because,
again, their demographics are wrong and they’re not
connected as directly. It’s good that they have clerks. I mean, I think there’s
an understudy dynamic of the extent to which
clerks shame justices into entering the modern age. Right? The fact that all these
clerks come from this world, and go there, and then roll
their eyes at these justices is really important,
like that is a constraint on what they can do. And so I would, again, from
the standpoint of, like, if you recognize it’s about
social meaning construction, then I know the things
I should worry about. I should worry that it’s
the wrong demographic, so therefore diversity
is really critically important in the
institution of judges, because this
diversity helps fuel the broad understanding
necessary to evolve social meaning in the right way. It’s about recognizing how
age itself is a nondiversity, is a lack of diversity. And you’re not going
to put 20-year-olds on the Supreme Court. That’s a good thing. But at least the justices
need to recognize this limit in their capacity
and engage in a way that acknowledges that limit. The end, even in the
ideal system again, I don’t think it’s great. I would only submit
that it’s better. And if we have a constitution
that requires it, which I think we
do, then this might be the best place given all
the other places are just so terrible. AUDIENCE: So your book
has many principles that you can draw
from it that you can look at from
a more 10,000 feet level of what is judicially
legitimate behavior. What advice would you
give to a young democracy, to like the court of
a young democracy? What principles would you draw
out of here and impart to them? LAWRENCE LESSIG:
Well, I would start with the Star Trek principle
that I don’t want to affect. I wouldn’t give advice. But, one, within that
democracy, who tried to see what lessons there were here. I think it’s just a more
systematic recognition of the constraints on building
the capacity and the authority of institutions of the Court. Like, what do you have
to do to make that work? And I talk about the
Russian court in here and like the problems
and the failings there. But a more systematic– I mean, you know because you
were in my comparative con law class, this was a focus of the
comparative con law class– systematic recognition of places
where ambitious courts have been crushed and
what systematically might have avoided that would
be the core lesson that I think should come out of this. I also think that
the recognition of the structural failure
of our amending clause would be an important
lesson from this. I mean, it’s a terrible thing
we can’t amend our Constitution, because what that does is
force this into the courts. And it forces us to think about
constitutionalism as if it’s the thing that judges do. And indeed when you
suggest we should somehow take it and put it back
into people, like when I defend the Article
V convention idea, and people are
terrified, an idea that you would allow the
Constitution to be determined by anybody other than Harvard
and Yale educated lawyers, I think that’s a
way of understanding the pathology that’s grown
into our Constitution, because it’s just
not a constitution if it’s not the thing
that ordinary people can at least get close to. So I think that
one lesson should be the hard line of like
how easy versus how hard. There’s a Goldilocks
problem here, no doubt. But we have like an
impossibly difficult standard against the background of a
deeply partisan public, which makes amendments
almost impossible, which makes all the pressure on
the Court even more difficult. Somebody’s going to
say that’s it, right? June says that’s it. Thank you so much. [APPLAUSE]

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  1. It can be difficult predicting what a putative Justice will believe, think, write, and vote once confirmed. It is the essence of good behavior. Thx for the post.

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