« Mark David Hall on Espinoza v. Montana Department of Revenue
Michael Ramsey
| Main | Suja Thomas on Total Incorporation
Michael Ramsey »

01/31/2020

Judge Amul Thapar & Joe Masterman on Lawrence Lessig's Fidelity & Constraint
Michael Ramsey

Recently published, in the Yale Law Journal, Judge Amul Thapar (U.S. Court of Appeals, Sixth Circuit) & Joe Masterman: Fidelity and Construction  (129 Yale L.J. 774 (2020)) (reviewing Lawrence Lessig, Fidelity & Constraint: How the Supreme Court Has Read the American Constitution).  Here is the abstract:

Lawrence Lessig’s Fidelity & Constraint: How the Supreme Court Has Read the American Constitution makes an important contribution to “New Originalism.” Lessig observes that judging is defined by two principles: fidelity to meaning and fidelity to role. To determine meaning, he argues, judges should engage in a two-step process: first determine the original meaning of the provision at issue, then translate that meaning into the modern context. But he also suggests that meaning should sometimes give way to other considerations—that balancing fidelity to meaning and role might sometimes require judges to compromise one to further the other.

We agree with Lessig about the basic nature of these two fidelities, but not about their relationship. Fidelity to meaning and fidelity to role are not in tension—they are complementary. Fidelity to role should never override fidelity to meaning. But it can inform what it means to be faithful to meaning. An originalist understanding of the judicial role may itself show how a judge should construe an underdeterminate constitutional provision.

This Review explores what the original understanding of the judicial role can tell us about how to construe such provisions. Specifically, it considers whether, as an originalist matter, judges should construe underdeterminate provisions against government action (that is, apply a presumption of liberty) or in favor of government action (that is, apply a presumption of democracy). After reviewing the debates between the Federalists and Anti-Federalists, as well as debates at the Constitutional Convention, we tentatively propose that judges should apply a presumption of liberty in cases about federal power but a presumption of democracy in cases about state power. Our primary hope is to suggest a direction for further historical analysis.

(Via Larry Solum at Legal Theory Blog, who says "Highly recommended.")