— Chief Justice John Marshall, in McCulloch v.
The State of Maryland, et al., 17 U.S. 316 (1819)
lawrence lessig1
I. Introduction
. . .
. . . In an article published in this review just last year, Nicholas Zeppos divided the world of interpretive practice (for statutes at least) into three parts.2 At the core is a practice of originalism, a commitment to “fidelity” needed to “counter anxiety over judicial lawmaking.” Originalism, said Zeppos, “resolves interpretive questions in statutory cases by asking how the enacting Congress would have decided the question.” Quoting Rich- ard Posner, Zeppos continued, “[T]he judge should try to put himself in the shoes of the enacting legislators and figure out how they would have wanted the statute applied to the case before him.” . . .
As method, of course, originalism is not unchallenged, and Zeppos con- trasts its two main competitors. The first, what Zeppos called “dynamic” or “public values theories,” urges “courts to decide cases by applying current public values or practical considerations.” These public values schools teach that judges need to “focus on the current needs or values of society,” that their method should be “‘nautical’ (not archeological) and ‘dynamic’ (not static),” and that “[t]he views, beliefs, or values of a Congress long gone and unaware of the current structure of society are unlikely to provide a useful or meaningful guide for decision.” Thus, the public values theories “openly acknowledge[] a role for evolutionary considerations and societal values in the interpretive process.” The second competitor of originalism, what we all call “textualist” theories, are more ascetic, working to reduce the discretion of the originalist judge by reducing the “potentially wide ar- ray of originalist sources.” Like originalists, “textualists envision no role for the judiciary in updating statutory law,” but unlike originalists, textualists abstain from a broad view of the context within which a statute is written, fearing the judges cannot be trusted with all that context may allow. That is the claim—that interpretive theory divides into these three schools, only the first of which (originalism) may claim for itself the virtue of fidelity. Dynamic and textualist theories depart from fidelity, even if they depart for good reason. Or so Zeppos suggests.
1 Lawrence Lessig, Fidelity in Translation, 71 Tex. L. Rev. 1165 (1993).
2 See Nicholas S. Zeppos, The Uses of Authority in Statutory Interpretation: An Empirical
Analysis, 70 Tex L. Rev. 1073 (1992).
from
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. . . [According to Zeppo], [c]onstancy is the virtue of originalism;
change the vice (even if the necessary vice) of dynamism. Thus, in Zeppos’s scheme, once we know that readings are changed readings, different from those the originals would have given, we are already on to justification, not of the readings, but of our act of interpretive infidelity. With changed reading comes our expulsion from the domain of faithful interpreters. Fi- delity requires constancy; change betrays infidelity.
. . . [Zeppos] captures what I believe is a common understanding about the relationship between interpretive change and interpretive fidelity, and one which I believe is, in important ways, mistaken.
The mistake is suggested by the following: We emerge from a genera- tion where the badge of infidelity was affixed to those who desired to keep the Constitution “in tune with the times.” So charged the great fidelitist Justice Black, and before his righteousness have cowered the Constitution’s tuners, defending their “adjustments” on grounds of necessity, meekly at- tacking his rigidity with claims of impossibility.3
But just think of the image that Black’s metaphor evokes. Is “tuning” unfaithful? A concert pianist plays a series of outdoor concerts. On the third night, the temperature falls dramatically, causing the piano to fall “out of tune.” Is it more faithful to Beethoven to leave the piano out of tune? Would tuning the piano be the same kind of infidelity as adding a couple of bars to the end of the first movement? Is there no difference between tuning so the music sounds “the same” (the same?) and changing the tempo or cutting some particularly dark passages so the music sounds better? Is it really “tuning” when one makes the music sound better? Is it really infidelity when one changes the music to make it sound the same? What Black’s metaphor misses is a distinction between fidelity and change, a distinction that is the subject of this essay: Can an interpretive change be interpretive fidelity and, if so, how can we know when? For we all know that sometimes fidelity to an original meaning requires doing something different, and that, in those cases, doing the same thing done before would be to change the meaning of what was done before. Take a simple example to make the point: If a diplomat is ordered to “be polite” while in Iraq (where belching after eating signals approval) and belches loudly at the end of her meal, it would not be fidelity to her order to belch loudly at the end of her next meal with the British Monarch, even though (in an importantly impolite sense) she would have done the same thing as before. . . .
3 See, e.g., Katz v. United States, 389 U.S. 347, 373 (1967) (Black, J., dissenting).