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Fidelity & Constraint
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B+ : engaging presentation; interesting history and interpretation
See our review for fuller assessment.
The complete review's Review:
Though first published in 2019, Lawrence Lessig notes in Fidelity & Constraint that: "This is the first book that I wrote, back in 1997".
He put it away -- though he did publish a version (warning ! dreaded pdf format !) of parts of it in in the Fordham Law Review in 1997 -- and: "returned to this work from time to time" over the following two decades, before now finally deciding the time was ripe to publish it.
With an ideologically increasingly deeply divided American Supreme Court, the Court's opinions -- and the reasoning for and behind them -- are again subject to even greater scrutiny, and Lessig offers a broad model of how the Court reaches the decisions it does.
(The book is also up to date -- i.e. it's not like he pulled this out of the drawer and just tidied it up a bit; post-1997 cases are considered as well, the currently sitting American president is mentioned (though he didn't make it into the Index ...), and there's an allusion to Special Counsel Robert S. Mueller III's investigation (warning ! dreaded pdf format !), so the original text has obviously been expanded to consider how decisions of the past two decades fit in with Lessig's model.)
There are two fidelities within our tradition that compete for the attention of a court -- fidelity to meaning and fidelity to role. These two fidelities sometimes complement each other. [...] At other times those two fidelities conflict with each other [.....] And the difficult choice for a court is how to best accommodate these two kinds of fidelity when they conflict.In what might seem, simply on its face, a jarring claim, Lessig notes that: "truth can change". In the way he means it, is undoubtedly true. As repeated examples from over two centuries show, the reality the Framers were familiar and confronted with has changed in myriad ways. Conditions that prevailed in the late eighteenth century have changed -- much of contemporary life (and, especially, technology) would not only be unrecognizable to them but was unthinkable (and hence also not taken into account, back then ...). Our context is almost invariably our present-day surroundings (whenever that present-day is), and:
There is a way of viewing the world that is the product of our understanding of science or law. The way of viewing the world is, for us at any particular time, experienced as truth. That truth is in turn a conceptual foundation for a certain practice of law.Lessig finds linguistic translation a helpful point of comparison, suggesting considerable similarities in what a judge and a linguistic translator do. In translation, absolute verbal fidelity is nearly impossible (and becomes even more so across time -- our world is no longer that of the ancient Greeks, etc.) -- and, so he argues, it is the same with law. And Lessig argues that:
the most important so-called innovations in Supreme Court doctrine -- both from the Right and from the Left -- are best understood as translations. They reflect, in other words, not infidelity, but fidelity given to a particular conception of original meaning.And so ultimately he finds:
The pattern is thus a formula: there is a power of government; economic or factual integration removes any effective limit to that power; the government then legislates beyond traditional limits; the Court, in an act of affirmative translation, creates affirmative limits on the government's power, in order to restore the original value.Fidelity & Constraint is very much a historical text, with Lessig closely tying his examples to the historical context. He is not suggesting the Court always bows (or bends its decisions) to popular opinion, but does make clear that prevailing attitudes must be considered in (re)examining decisions from days of yore -- attitudes that, whether about women's rights (and abilities), the status of blacks, or homosexuality, are often, from a contemporary perspective, both hair-raising and shocking. Similarly, how areas such as privacy and commerce are conceived have undergone radical transformations in society at large; the context makes a great difference n how we can understand these decisions -- and he is very good in presenting surrounding context.
Lessig also notes that a fundamental concern of the Court has to be with its own place and role. To put it simply, the Court wants to be taken seriously. With no real enforcement capabilities of its own, there's always the danger that a ruling might not be enforced; the Court needs the Executive and Legislature to go along with their decisions. This was particularly a hurdle in the earliest days, and:
Marshall understood that an institution could not simply presume the power it needed. Neither could it simply demand that power. Instead, if the Supreme Court was to secure the authority to hold Congress to the Constitution, and the president to the law and Constitution, it would have to earn that authority. To earn it, it would have to lay precedents that could not easily be dislodged and that would secure power, at least over time. This was fidelity to role -- the institution Marshall administered, and to a protected and effective future for that institution.Lessig charts how the Court established its authority -- no mean feat early on -- but also notes that the issue does not go away. So also modern commentators repeatedly point to current Chief Justice Roberts' position-taking in a number of high-profile cases that seem clearly designed to preserve the insitutional role and reputation by not rocking the boat too hard in specific circumstances. So also Lessig cites Roberts' decision in the Affordable Care Act ('Obamacare') decision, National Federation of Independent Business v. Sebelius (2012), hinging on the taxing power (rather commerce authority) to uphold the law -- an example also of the Court adapting the reading of the law, Roberts: "securing the latest translation by protecting it from a partisan framing":
Roberts was crafting the latest tool to cabin federal power in a context in which the Framers' original device -- interstate versus intrastate commerce -- no longer worked.(Subsequent events -- the continued efforts by the American Republican Party to undo the ACA at all costs, and challenges now culminating in the Texas v. US case recently (9 July 2019) heard by the Fifth Circuit Court of Appeals -- may of course still throw quite the new wrench into the Court's tool box, to mix a metaphor .....)
Lessig is particularly good on history -- legal, political, and social -- and the significance of it on the evolution of the Court, from the early days of the Court trying to establish itself. The continuing battle between state and federal authority is of particular interest, as are changing understandings of matters such as commerce, personal liberty, and privacy. Lessig's look at the fall-out of the American Civil War, including the Civil War amendments (thirteen through fifteen) -- radical, in the sense that: "These were the first transformative amendments in our constitutional tradition [...] These amendments sought to change existing practice or ideas" --, and then the rollback of black rights under the ultimately in too many ways failed Reconstruction is particularly striking -- for one, in showing just how shockingly racist America was, and the (lasting) consequences of these attitudes and practices. But Lessig is also more forgiving of the Court's decisions during that time -- which include some of the most notorious, damaging, and, in their expression, outrageous of the Court's entire history --, making clear the context in which they arose. He does not defend them, but points to the forces that led to how they were arrived at -- and suggests:
Maybe the Court could have done more. But between the sins of the Court and the sins of the politicians, there is simply no moral equivalence.(These sections are fascinating from a historical-sociological (pathological, one is tempted to say) perspective, and a shocking reminder of how the South maneuvered its way to the discrimination that followed, from the clever legal approaches taken to the surrounding circumstances that had an adverse influence (a tanking economy around that time, for example).)
There are similarly interesting accounts of president Franklin Roosevelt's efforts to steamroll the Court, believing the incredibly popular mandate he had won gave him cover to do so (public opinion disagreed).
While commerce comes up repeatedly, much of Fidelity & Constraint deals with issues of discrimination (in its broadest meanings) -- by race, gender, and sexual orientation. The still incredibly divisive decision in Roe v. Wade is also featured, in an interesting discussion. Lessig's in-depth analyses are of considerable interest, though a wider range of cases, extending beyond the areas he focuses on -- fundamental though these of course are -- would also have been of some interest -- though admittedly the tighter focus does at least prevent the discussion from becoming too unwieldy.
Repeatedly, Lessig also notes the Court deferring to the legislative branch or, in one way or another, avoiding the issue (punting) to force (or at least pressure) other branches of government to act, to avoid being seen as 'legislating from the bench' -- not the worst way to go, he suggests (so also recently in commenting on Rucho v. Common Cause (2019), in arguing Why John Roberts may be right about gerrymandering ...) . But he also he notes the Court has not always done so (or not done so ...) judiciously:
Because the Court has allowed itself to view its interpretations as expressions of what the Constitution requires -- as opposed to accommodations to changing circumstances -- it has closed of the opportunity for other, more capable institutions to craft better alternatives.Lessing's writing is approachable, and Fidelity & Constraint is as much a book about (American) history and institutions as it is about the law. The history is fascinating -- and well worth being reminded of, with Lessig noting his surprise at his own students' lack of awareness of the long-lasting and lingering aftereffects of decisions and policies from earlier times.
Lessig's model is a fairly convincing one, albeit only of somewhat limited predictive use. And he is not, in fact sanguine about the future, or this approach in these increasingly polarized and politicized times:
I can't escape a certain foreboding. There is, I fear, a constitutional climate change as well. And as I reflect on the character of these times, I fear that the uncontesteds of our time will no longer support the practice that this book has described.The currently sitting American president has already done great institutional damage, and in particular in his wholesale bashing and breaking of norms has unmoored the foundations of the American Rechtsstaat; the potential for the Supreme Court to become a diminished, politicized entity -- despite the Chief Justice's flailing efforts -- seems all too possible. But for now, Lessig's model is an interesting one to consider, and his book certainly of considerable interest.
- M.A.Orthofer, 13 July 2019
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Lawrence Lessig teaches at Stanford Law School.
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