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07/07/2019

John Mikhail on Lawrence Lessig, Originalism and the New Deal
Michael Ramsey

At Balkinization, John Mikhail: Lessig's Defensive Crouch Constitutionalism.  From the introduction: 

Fidelity & Constraint [by Lawrence Lessig] is a deeply interesting and insightful book.  I recommend it to anyone who is interested in the theory and history of American constitutional law.  In this post, I will focus on one thread of Professor Lessig’s rich narrative—his account of the New Deal revolution—and explain why I find it unconvincing.

Lessig identifies himself as “a nationalist, not a federalist,” on the question of government power (432; see also 440, 443-44).  Like Bruce Ackerman, he seeks to justify the New Deal era decisions that transformed American constitutional law and created a new baseline that has been (mostly) stable ever since.  Ackerman claims that this transformation involved unwritten amendments, but Lessig is not persuaded by Ackerman’s account, and his own two-part theory of fidelity—fidelity to meaning and fidelity to role—is meant to fill this gap.  Critically, however, Lessig appears to share Ackerman’s premise that the New Deal revolution cannot be justified with reference to the original meaning of the Constitution.  Accordingly, while Lessig insists that “the Constitution was not amended” during the New Deal, he also maintains that “fidelity to role forced the Court to suppress the Constitution’s actual or proper meaning.” (431)

From a nationalist perspective, Lessig’s account of the New Deal revolution strikes me as too defensive.  To borrow a phrase from Mark Tushnet, his theory can be viewed as a type of defensive crouch constitutionalism. Particularly in light of new constitutional storms on the horizon (see, e.g., here), it seems worthwhile to ask whether this is the best a “nationalist egalitarian” (444) can do.  

And from the core of the argument, discussing Hammer v. Dagenhart and United States v. Darby: 

In Hammer, the Supreme Court struck down federal child labor legislation, thereby reserving the regulation of employment and production to the states. Although he does not quite say so explicitly, Lessig appears to think that the Court was justified in doing so in originalist terms.  While describing Hammer as “extreme” and “the most aggressive” illustration of “two-step originalism” in the history of the Court’s commerce clause jurisprudence, Lessig nonetheless maintains that “the case can also be understood as an act of fidelity if we view it as an instance of translation.” ...

If Hammer is faithful to original meaning, then what does that imply for Darby, which overruled Hammer in upholding minimum wage and maximum hours provisions of the 1938 Fair Labor Standards Act?  Lessig does not discuss Darby extensively, but he appears to think it cannot be squared with the original Constitution.   Thus, he writes that, in the Jones & Laughlin Steel Co., Darby, and Wickard trilogy, any plausible attempt at translating the commerce clause “to preserve an alleged original meaning—by crafting limits on the otherwise expansive federal authority—had been forfeited.” Instead, the Court “gave to Congress a breadth of power that would authorize it to regulate far beyond the limits that (at least the conservatives believed) the Framers had intended.  Fidelity to the meaning of this original constitutional commitment had been surrendered.” (140)

... I want to suggest that Lessig is selling the New Deal short.  Darby is more faithful to the original Constitution than Hammer. ...