Translation in the wild

Geoffrey P. Miller, The Unitary Executive In A Unified Theory Of Constitutional Law: The Problem Of Interpretation, 15 Cardozo L. Rev. 201 (1993)

Miller advances a unified constitutional theory, “a theory that includes issues both of rights and of structure within a single conceptual system.” Under this theory, “the core value of the other branch of fundamental law can be brought into the analysis [of rights or structure issues]” and then questions would be considered in light of the “overarching concepts of energy [in government] and faction-avoidance.” He discusses the implication of his theory for the question of the “unitary executive,” concluding that “the proper relationship between the President and the administrative agencies falls on a continuum, with the points on the continuum being determined by the considerations of preserving liberty of citizens, ensuring a government energetic enough to protect citizens against foreign or domestic violence and expropriation, and [faction-avoidance].” Miller links this reading to translation theory’s view of the unitary executive. He views his account as consistent. Finally, he briefly mentions the role of the courts in his model, stating that “[in] areas where presidential control over interpretation is large, the role of the courts should be correspondingly small.”

Abner S. Greene, Checks and Balances in an Era of Presidential Lawmaking, 61 U. Chi. L. Rev. 123 (1994)

In this article, Greene adopts “a brand of originalism that seeks to adapt the framers’ checks and balances principles to an era of presidential lawmaking they could hardly have foreseen.” He argues that the Framer’s intent was not any specific designation of particular powers to particular branches but was instead to maintain checks on each branch. Because of this, Greene suggests that “if we accept sweeping delegations of lawmaking power to the President, then to capture accurately the framers’ principles we must also accept some…congressional efforts at regulating presidential lawmaking.” Greene recounts the translation argument (made by me and Sunstein) that viewed independent agencies as unconstitutional because of “accountability and coordination concerns.” He criticizes this view because 1) the historical evidence shows that there’s no original intent regarding a strong, unitary executive shows that the Framers were much more relaxed about accountability and coordination and 2) translation fails to deal with the problem of concentration of executive/legislative power in the hands of the President. Greene believes that fidelity to the checks and balances principle can justify much of the Supreme court jurisprudence in this area. Though he disagrees with the translation I offer, Greene claims to be following the principle of translation.

Peter B. McCutchen, Mistakes, Precedent, And The Rise Of The Administrative State: Toward A Constitutional Theory Of The Second Best, 80 Cornell L. Rev. 1 (1994)

McCutchen advances an interesting if extreme claim — that the administrative state is unconstitutional. However, he also acknowledges that it would be imprudent if not impossible to dismantle the administrative state today. He therefore proposes the “constitutional theory of the second best,” under which the Court, while “[adhering] to constitutional structures whenever possible,” should “tolerate [unconstitutional] structures or practices…when such structures or practices have become institutionalized.” When this occurs, McCutchen argues that the Court “should allow (or even require) the creation of compensating institutions that seek to move governmental structures closer to the constitutional equilibrium[,] …even where they would have been unconstitutional if considered standing alone.” The example he gave of such compensating mechanisms was the legislative veto, which would compensate for the unconstitutional but entrenched practice of “open-ended delegation of legislative authority to administrative agencies.” McCutchen rightly relies on translation theory for the creativity of his compensating design. His approach liberated me — much like Fallon’s — to recognize the other fidelities that may force radically unfaithful readings.

Akhil Reed Amar, Fourth Amendment First Principles, 107 Harv. L. Rev. 757 (1994)

Amar is the foundation for my own approach to translation and the Fourth Amendment. In this article, he outlines the approach: critiquing current Fourth Amendment doctrine by arguing that the Amendment does not require “warrants, probable cause, or exclusion of evidence,” but instead simply requires that “all searches and seizures be reasonable” and that “constitutional reasonableness” requires considerations of “principles embodied in other parts of the Constitution.” He also argues that we need to “recover the lost linkages between the Fourth and Seventh Amendments” as well as use “twentieth-century legal weaponry like Bivens actions, class actions, structural injunctions, entity liability, attorney’s fees, administrative regulation, and administrative remedies” in considering remedies for government violation of the Fourth Amendment. Amar cites translation theory as support for his claim that we should translate “traditional eighteenth-century civil model” into the twenty-first century rather than switch to “criminal exclusion model” in determining remedies for Fourth Amendment violations. Amar claims that using the latter model “violates the principle of ‘conservatism’” articulated in the theory. He also claims that one of his suggestions to “refurbish” the civil model — administrative relief in the form of “citizen review panels” — to be “an excellent example of ‘fidelity’ in “translation” as American law becomes more bureaucratized, yet continues to pledge allegiance to the democratic and participatory ethos underlying the jury system at the Founding.” I build upon this idea in the book.

Cass R. Sunstein, An Eighteenth-Century Presidency in a Twenty-First Century World, 48 Ark. L. Rev. 1 (1995)

In this article, Sunstein describes the changes in presidential power which have occurred since the Framing without changes in constitutional text. He offers thoughts on how they might be defended against charges of illegitimacy. Some possibilities he discusses and applies in the context of Presidential power include flexible provisions and silences in the Constitution, emergencies, common law constitutionalism, translation, and Ackerman’s idea that there might be several constitutional regimes. With regard to translation, Sunstein believes it is a useful metaphor, although he cautions about complexities in the theory. One such complexity is the fact that what is translated is not “a brute fact, but itself the product of interpretation, in the form of a constructive account of some sort, one that has important evaluation dimensions.” This observation steered me away from suggesting that there was ever anything but interpretation on this field. Turtles all the way down.

Michael Herz, A Symposium On Legal And Political Hermeneutics: Rediscovering Francis Lieber: An Afterword And Introduction, 16 Cardozo L. Rev. 2107 (1995)

In this introduction to a symposium in which I had made a contribution, Herz suggests several reasons why Lieber’s work merits attention. He acknowledges that I agree that Lieber’s conception of “construction” — what I have called “translation” — is indispensable to constitutional interpretation. But he recognizes that Lieber’s “construction” is ultimately inadequate because it fails to take into account institutional constraints on the Supreme Court. Herz agrees that Lieber’s Hermeneutics doesn’t have too much discussion on institutional consideration. That, he says, if true, would go to “the heart of Lieber’s project,” since Herz believes that the lack of discussion on institutional considerations is not accidental but results from Lieber’s optimism that as long as his rules of interpretation are followed in good-faith, who actually interprets will not make a difference.

Michael Treanor, The Original Understanding Of The Takings Clause And The Political Process, 95 Colum. L. Rev. 782 (1995)

In this powerful reconceptualization of the scope of the “takings clause,” Michael Treanor grounds the scope for judicial policing of takings in the institutional failure identified by the framers. As he argues, the limited scope of the original Takings Clause “reflected the fact that…the framing generation believed that physical possession of property was particularly vulnerable to process failure.” Thus, relying on translation theory, Treanor argues that the Court should “mandate compensation” only in situations where political processes are most likely to fail — in situations where “property interests are, given modern political realities, particularly unlikely to receive fair consideration from majoritarian decisionmakers.” In other situations compensation should be determined by political process only. As part of his argument, Treanor provides reasons why translation is better than traditional originalist or non-originalist models. Some of these reasons include constraints on judiciary, the preference for majoritarian decision-making, a better reflection of original approach to constitutional interpretation, and a non-originalist rationales such as adaptability and better allowing us to benefit from Framers’ insights. Treanor also provides non-originalist arguments for his thesis, claiming that his approach is more consistent with constitutional structure, is “consistent with a sensible reading of the language of the Takings Clause,” and reflects the “presumption that majoritarian decisionmakers should resolve property questions whenever their judgment is not suspect.”

Willard Shih, Note: Assisted Suicide, The Due Process Clause And “Fidelity In Translation,” 63 Fordham L. Rev. 1245 (1995)

This Note demonstrates a surprisingly restrained application of translation theory. The author, Shih, explores the question of whether there is a constitutional right to assisted suicide. He examines the then most recent of cases as well as the then current Supreme Court jurisprudence regarding Fourteenth Amendment liberty interests. He conncludes that the Fourteenth Amendment doesn’t extend to assisted suicide. He then examines three methods of constitutional interpretation by which judges might establish that right, finding translation preferable to both originalism and fundamental rights theory because it is “capable of respecting the ratifiers’ intent while also adapting the law to the present-day context.” He summarizes translation theory and describes how it has been applied to various specific issues. But when he applies translation theory to assisted suicide, he finds that under this theory there is no constitutional right to assisted suicide: there was no such right at the time of ratification and relevant legal and non-legal factors have not changed since that time. Shih thus believes that permission for assisted suicide, if it comes at all, should come from the legislature. I found this a valuable essay, if only because translation is usually an argument in justification and rarely an argument to limit the scope of constitutional rights.

Akhil Reed Amar, Edward L. Barrett, Jr. Lecture on Constitutional Law: Reinventing Juries: Ten Suggested Reforms, 28 U.C. Davis L. Rev. 1169 (1995)

Akhil Amar believes that the idea of the jury is one of the most central in the Bill of Rights and the American “government of the people.” He grounds this view on historical evidence, then acknowledges that there has been large amount of change in context since 1789. He argues that this doesn’t mean that “the core populist idea of the jury trial must be retired.” Instead, it should be “translated.” Amar then offers a sketch of his vision of the jury as well as some “broad and tentative suggestions for reinventing juries today [and for] preserving the Founders’ big idea in our modern world.” Translation theory surfaces: 1) when Amar tentatively proposes to forgo the unanimous verdict currently required for criminal trials, grounded on an “Erie-effect” — that “unanimity [requirement at the Founding] may have drawn its strength from certain metaphysical and religious ideas about Truth that are no longer plausible: some may have thought that all real Truths would command universal — unanimous — assent,” and 2) in suggesting an administrative grand jury, grounded on “fidelity to deep constitutional structure” “[n]ow that a massive administrative branch has arisen.” I was inspired by this extension of the theory to suggest a more creative remaking of the jury in my book.

Jim Chen, Law As A Species Of Language Acquisition, 73 Wash. U. L. Q. 1263 (1995)

Chen develops a powerful critique of the idea of translation as an alternative to textualism. He seeks an intermediate position between the texualists, who find clarity in abstracted texts, and the critical theorists, who believe “they can dismantle any text.” Chen agrees that the metaphor of law as translation may begin to clarify the relationship between law and linguistics. He agrees that translation encompassing a greater area of law and legal practice. But he does not endorse the idea of “taking sides in the debate over whether judges are properly seen as agents of the legislature.” And he fears translation will lead to translation as textual manipulation: “[t]he living law does not and should not resemble the paleolinguistic exercise of excavating ancient texts so that today’s scholars can project modern readings onto them.” Ultimately, he believes translation is not a complete metaphor for law, because it “presupposes the existence of multiple languages in law [as well as] the process by which lawyers attain their talent as polyglots.” He believes the metaphor exacerbates the law’s obsession with the written language, which emphasizes rigidity, at the expense of the dynamism of oral language. Chen offers a modification of translation to accommodate these weaknesses. I see the normative virtue in the modification. However, in my view, the weaknesses he identifies are built into the practice.

Terrence M. Messonnier, Neo-Federalism, Popular Sovereignty, And The Criminal Law, 29 Akron L. Rev. 549 (1996)

Messonnier uses a version of translation to argue for re-examination of what crimes should be punished at a federal level. In his view, too-extensive federal criminal laws may raise constitutional problems. He suggests a greater cooperation between federal governments and states in criminal prosecution and argues that criminal procedural laws should be analyzed from the viewpoint of popular sovereignty/agency theory. Under this view, for example, exclusionary rule is justified because the agent’s (police’s) behavior exceeds the grant of authority by the principal (the People). He acknowledges that his analysis is subject to the caveat that context has changed since the time of Framing and that translation of the Bill of Rights might be a difficult project. He nevertheless argues that “a discussion of criminal procedure within the framework of popular sovereignty would lead to a more accurate and faithful analysis of those provisions within the Bill of Rights affecting the criminal justice system.”

David A. Strauss, Common Law Constitutional Interpretation, 63 U. Chi. L. Rev. 877 (1996)

David Strauss is most responsible for defining the conception of common law constitutionalism. In this article, he that rather than textualism or originalism, common law constitutional interpretation is the best interpretative method for the Constitution — both descriptively and normatively. He describes the Austinian idea that laws are “commands” from the sovereign as the greatest opponent to common law. He includes translation theory in this category because of its emphasis on fidelity to the Framers. However, Strauss believes that translation may have more in common with the common law view because its allows for “changes based on the evolution of social understandings.” I developed the constraint of role to distinguish between changes in meaning that track these understandings, and changes effected because of the constraint of role.

Charles A. Reich, Property Law And The New Economic Order: A Betrayal Of Middle Americans And The Poor, 71 Chi.-Kent. L. Rev. 817 (1996)

In this article, one of America’s most interesting legal scholars develops the argument of translation to defend a more vigorous constitutional protection for “new property.” Charles Reich argues that there has been a significant change in the forms of property, which was one of the underlying assumption of our constitutional structure, since the Founding. Further, he maintains that during the New Deal there was a new social contract made which involved greater power to the government in exchange for these new forms of property (such as welfare) to the citizens. The government, however, and especially the courts, have not provided legal protection for these new forms of property. That means the government has not been faithful to the grand design of the Framers — to establish an economic basis for individual independence and citizenship.” This infidelity has resulted in extremely unfortunately circumstances, both economic and political.

Elena N. Broder, Note: (Net)workers’ Rights: The NLRA and Employee Electronic Communications, 105 Yale L.J. 1639 (1996)

In thie brilliant note (by a former student!), Broder translates labor law, particularly the underlying values of the National Labor Relations Act, and the protection of rights of workers, from an age in which the dominant model of work involves physical centralization of labor to an age of telecommuting. Broder discusses the presumptions under current labor law — such as presumptions “regarding the time of communications” and “the limits the NLRB and the courts have imposed on the places where employees may engage in oral solicitation and distribution of written materials” — and argues that if rigidly applied in the “(net)workplace,” these presumptions, which were developed with the traditional model of the workplace in mind, may violate underlying values of the NLRA. She proposes “alternative methods of accommodating employer and employee rights in light of the realities of (net)work.” This was an exceptional application of the theory, outside of the context of the constitution.

Paul Horwitz, The Past, Tense: The History of Crisis — And The Crisis Of History — In Constitutional Theory, 61 Alb. L. Rev. 459 (1997) (book review)

This essay — far more than a mere review — reviews Laura Kalman’s book, The Strange Career of Legal Liberalism (1996), but aims its considerable power at originalism, and the rise of the use of history in law as an attempt to re-legitimize legal scholarship and revive legal liberalism. Horwitz considers both a classical originalist approach as well as more modern approaches, using my theory of translation. He describes a number of problems of originalism: whether “originalism is required as a matter of history,” whether originalism can achieve “reasonably determinable answers,” how judges can use originalism as a way to legitimize Constitutional interpretation and still abandon originalism for the sake of other legal values such as stare decisis, and whether or why past meanings should have authority in a popular sovereignty. While he is sympathetic to the idea that history should be a part of constitutional interpretation, Horwitz raises powerful questions the standards of accuracy and integrity in the project of originalism, as well as (and most interestingly) whether the selectivity of “public historians” will eventually make historical arguments lose their legitimacy in legal contexts. He powerfully names “mythistory,” a way of using history that is less concerned with accuracy and more with whether it tells the kinds of stories of the past that is credible and will lead us to the kind of future we want. It wasn’t clear to Horwitz where my position falls on the scale between the classical originalists and non-originalists who use history, since I also talk about social and legal contestations as constraints on translation. He is correct that my approach is closer to the originalists because my focus is ultimately (in part at least) on fidelity to meaning. Horwitz correctly argues that my theory is subject to many of the same criticisms that apply to originalism generally. Like originalism, my approach is “question-begging”: do the Framers want their document to be interpreted differently with changing context? He is also correct that I did not answer the question of why be faithful in the first place. As I have developed the account in my book, my answer to that question can be nothing more than practice: If an account of fidelity is actually faithful, that fact (the “is/ought” fallacy notwithstanding) is at least persuasive to the normative question.

Martin S. Flaherty, The Removal Power: Relearning Founding Lessons: The Removal Power and Joint Accountability, 47 Case W. Res. 1563 (1997)

This article discusses presidential removal power, and responds to Calabresi and Yoo’s argument that post-ratification history suggests support for authority of Presidents to remove executive officers. That claim was grounded in the argument that no President had ceded removal power to Congress, so it remained with the President. Flaherty argues that there was no “exclusive presidential removal power” for Presidents to cede to Congress in the first place. Instead, as he maintains, “the Founding does not yield a specific understanding about removal power” but does “display a more general commitment to, among other ideas, a notion of joint accountability that aimed to prevent any one part of government from taking ill-considered or oppressive measures in the name of last year’s election results.” He uses the idea of translation, as well as Bruce Ackerman’s idea of interpretive synthesis, to show that changes in context should be taken into account when interpreting the Constitution. In this case in particular, the relevant change in context would be the dramatic increase in power of the President since the Founding. Thus, he concludes, “it follows that congressional involvement in the removal of officials who implement laws does not frustrate a key Founding value, but furthers it.” Though much of my early work about translation was grounded in an understanding of executive power, exchanges such as this led be to step away from basing too much in my book on this application of the argument. I fear the debate has become too tied to politics, or, more importantly, to a more systematic failure of Congress. That systemic failure is the focus of my work on “institutional corruption.” See, e.g., America, Compromised (University of Chicago 2018).

Frederick Schauer, Fidelity As Integrity: Constitutional Invocations, 65 Fordham L. Rev. 1295 (1997)

Schauer is one of our traditions most important legal philosophers. In this essay, he considers whether how a law — such as the Constitution — is written has much impact on the outcome of particular cases. Schauer builds on my work to support the importance of “the existence or non-existence of a background social or political context as the primary determinant of constitutional outcome.” He contrasts that view with the Dworkinian idea that certain texts — such as the Equal Protection Clause — require a moral reading, while others — such as the Third Amendment — would not. Schauer offers a number of examples that are in tensions with the Dworkinian view, and concludes that it is the American legal practice rather than “the stylistic features of particular legal texts” which permits moral readings of the law. Schauer’s pragmatic instinct is critical to the understanding I came to, and was not present at the time he wrote.

James E. Fleming, Fidelity As Integrity: Fidelity to Our Imperfect Constitution, 65 Fordham L. Rev. 1335 (1998)

In this very powerful article, Fleming maps three conceptions of fidelity: narrow originalism, broad originalism — of which my theory is an example — and Dworkin’s moral reading. Dworkin’s is the conception Fleming supports, though he agrees with translation to the extent that it’s used “in service of the moral reading.” He rejects it as an independent alternative. Fleming advances a strong argument that the resistance to a moral reading of the Constitution comes from an “originalist premise” of fidelity, which he believes assumes that originalism is the only type of fidelity. But, he argues, those reasons don’t prevent broad originalists from “endorsing the ‘moral reading,’ properly conceived.” Fleming rightly accounts for the resistance to the moral reading as linked to the question of fit. I certainly believed then (and now) that a moral reading of our tradition does not fit the cases. But Fleming offers a strong account that the moral reading does fit, and to the extent it doesn’t, justification should trump fit. In the end, the piece convinces me that that the moral reading could be a correct “as if” account; I don’t believe it is as complete as the dual fidelities account I offer in the book.

Steven G. Calabresi, Fidelity As Translation: The Tradition of the Written Constitution: A Comment on Professor Lessig’s Theory Of Translation, 65 Fordham L. Rev. 1435 (1997)

This is a strongly critical (though constructively so) essay that shifted the direction of my work in an important way. In the essay, Calabresi argues that the theory of translation is an incomplete description of constitutional change. He offers six points against my theory: (1) constitutional “tragedies” such as Dred Scott, which get driven by context rather than text, and thus speak against a context-driven theory; (2) cases in which dormant constitutional ideals suddenly come to life, which aren’t explained by a context-driven theory; (3) changing conceptions of the judicial role; (4) the applicability of the ideals of “founding commitments/translation” rather than “text/application”; (5) the question whether translation theory is necessary since moderate originalists (which he thinks Scalia and Bork were) already do what translation suggests; (6) the timing of the shifts as tied to translation. While I don’t have an account for (1) and (2), and I’d disagree with (4), (3) is a critical addition to the theory since Calabresi was reviewing it, and it was driven by this essay in particular. Fidelity to role is the effort to understand the contextually driven evolution of judicial role. That is then deployed to address (6). And as to (5), obviously, I intend translation to reach into contexts (such as privacy) that Scalia and Bork do not. But in the end, this essay was critical in the evolution of the account in the book.

Sanford Levinson, Fidelity In Constitutional Theory: Fidelity As Translation: Translation: Who Needs It?, 65 Fordham L. Rev. 1457 (1997)

Levinson is skeptical that translation adds anything new. It is offered as something more than a synonym of interpretation, which it plainly is, it can’t add much because of a central peculiarity: translation is only necessary for people who do not understand the original text, yet those people, Levinson argues, will have no way of critiquing the various translations and choosing the one which is the best. But this isn’t quite right. It may be that you need translation for people who can’t understand the source text; but certain translators understand the source text as well as the target text. The measure of a good translator is then made among those who understand both. Yet in any case, this essay helps make clear that standing along, translation to aid fidelity to meaning isn’t adding much; the interesting part I suggest is the interaction with fidelity to role.

Abner S. Greene, Fidelity As Translation: Discounting Accountability, 65 Fordham L. Rev. 1489 (1997)

In this article, Greene questions “the role of accountability, or responsibility” in my account of our constitutional tradition — specifically, deference to science, to “normal politics” in institutional cases, and to “constitutional politics” in rights cases. Greene first “challenge[s] [the] descriptive account of both institutional power and rights cases, and…dispute[s] normatively the underlying preservationist mode of [] translation theory more generally.” He then examines the role of accountability in your writings regarding the “constitutional status of independent agencies.” He argues your account of 3 types of judicial deference are problematic both descriptively and normatively. Descriptively problematic because there is no neat divide between rights cases and institutional cases, and because judges often don’t defer to science (he cites the example of scientific evidence of cruelty in methods of execution.) The account is normatively problematic because it’s not clear to Greene that accountability should play such a large role in government. He offers three arguments to that end: 1) the Framers created our particular form of government to preserve buffer between popular will and government, 2) “good reasoning” might protect liberty better than popular will with accountability, 3) deference masks the responsibility of the judges, since when to defer is also a normative decision. I agree that the distinction between structure and rights is not conceptual. To the extent it manifests itself in the cases, it is practical. And likewise with deference: My account is not normative to the end of deference, it is positive to the end of describing the practice, and then ultimately offering justification. In this way, the Framers’ sense of accountability would never determine the present contestability of preserving or establishing accountability. Those factors, as this later account tries to make clear, are contingent, even if determinant.

Martin S. Flaherty, Fidelity In Constitutional Theory: Fidelity as Synthesis: The Practice Of Faith 65 Fordham L. Rev. 1565 (1997)

Flaherty first addresses the problems raised by a theory’s dependence on history: he agrees that history matters, and agrees that there must be a normative justification for it mattering — the past cannot be justified by the past itself. He describes the various categories of theorists who emphasize history in their work, including originalists like Thomas, dual theorists like Ackerman, historicists like me, as well as those who adopts rights-oriented approaches. Flaherty then explains that usually a legal scholar’s attempts to apply history ends up with unfortunate results, both because of the difficulties inherent in interdisciplinary work but also because in Constitutional law the stakes — rights, democracy, etc. — are so high that the temptation is to use history to further a predetermined end. He describes three justifications for this view of history as rhetoric: 1) there are always competitive accounts of history and thus lawyers should be free to choose from among them; 2) the goal of lawyer’s history is different from that of the historian’s history, and its success should be judged by different criteria deriving from the legal discipline, and 3) historical revisionism, which argues that history does not provide constraint on interpretation because it is so heavily influenced, if not entirely constructed, by the present. I agree with Flaherty’s ultimate conclusion — that there should be a reliance on historical standards as employed by historians — though the law can’t be trapped by the questions the historians themselves find interesting. Neither can a normative account of a practice of interpretation be held hostage by the research interests of historians. Historians have a discipline; that discipline doesn’t necessarily overlap with the law.

Jeanmarie K. Grubert, Note: The Rehnquist Court’s Changed Reading Of The Equal Protection Clause In The Context Of Voting Rights, 65 Fordham L. Rev. 1819 (1997)

The wonderful note uses translation theory to examine the Court’s changing view of whether in voting rights cases, any race-based districting is unconstitutional regardless of whether discriminatory effect is shown. Translation theory, Grubert writes, remedies many of the problems of strict originalism, by allowing the Constitution to evolve with the context. She also argues it is more consistent with the intent of the Framers. She then argues that the legislative history of the Fourteenth Amendment shows that it was not intended to bar racial classifications; likewise, she insists, Madison’s view of representative government was incorporated in the Amendment, which thus “sanction race-conscious legislation to ensure that racial minorities are provided with equal access to the political process…[and]…preclude the application of strict scrutiny to race-conscious legislation enacted by the majority to benefit the minority.” She then argues that there had been no “changed presupposition” and that the Court’s changed reading in voting rights cases is thus unfaithful under your theory to the Equal Protection clause. The note is a useful application of fidelity to meaning, crafted before I had described fidelity to role extensively.

Michael Dorf, Integrating Normative and Descriptive Constitutional Theory: The Case of Original Meaning, 85 Geo. L.J. 1765 (1997)

Dorf grounds his critique on the “descriptive-normative gap” in both originalist and non-originalist theories of constitutional interpretation. He examines various attempts — by Monaghan, Ackerman, me and others — to bridge this gap. Not surprisingly, he finds these efforts inadequate. Specifically with translation, Dorf describes two difficulties: first, the risk that translation may justify a too-loose reading of the Constitutional text; second, the incompleteness of the account for many post-New Deal cases. The first criticism is certainly correct, conceptually; the question depends ultimately on the interaction with fidelity to role. The second criticism depends upon rejecting, as Dorf does, any distinction between structural cases and rights cases. But my claim for a difference is not conceptual. It is empirical. The same is true for the balance of the argument in Dorf’s essay: My claim is about what originalism is within our legal culture, or more precisely, how much can be explained assuming it is as I describe it to be. We can — and should — have an argument about crafting a different legal culture.

Richard H. Fallon, Jr., 1996 Term: Foreword: Implementing The Constitution, 111 Harv. L. Rev. 54 (1997)

This article by Richard Fallon is properly within the core canon of American constitutional law. Like translation theory, it provides a normative justification for the gap between the simple meaning of constitutional text and the actual doctrine of constitutional law. Fallon argues that “[c]ritics [who protest] that [some of] the Court’s [doctrines] are inappropriate because they do not plausibly reflect the Constitution’s true meaning…are… miss[ing] a crucial point,” because in addition to “[i]dentifying the ‘meaning’ of the Constitution,” the Court also has the mission to “implement the Constitution successfully,” which may result in doctrines which are “driven by the Constitution, but [do] not reflect [its] meaning precisely.” This article led me to conceive more fully of separating fidelity to meaning from fidelity to role. Fallon describes both, together, yet separately, I argue in the book, they can better track how law develops.

Andrew N. Adler, Translating & Interpreting Foreign Statutes, 19 Mich. J. Int’l L. 37 (1997)

This is a rich and subtle account of how translation functions within the discipline of law. Adler argues that “interpreters should engage in…study of the values underlying the foreign legal system as the best first step on the road to optimal interpretation. In particular, interpreters should look to such underlying values in order to determine which canons or methods of statutory interpretation fit the case at hand.” He “presents similarities among translation, comparative law, and statutory interpretation” and strongly (and rightly, in my view) defends a contextualist, rather than textualist, stance. Adler draws on translation theory — specifically, the two steps of familiarity and equivalence — in discussing the translation of foreign laws. He also relies on the two types of humility I had described then — ”structural humility” and “humility of capacity” — to describe the role of translators of foreign statutes. I had meant to use the metaphor of translation to understand constitutional theory; this is a powerful example of the theory being used to understand translation.

Bradford R. Clark, Ascertaining The Laws of The Several States: Positivism and Judicial Federalism After Erie, 145 U. Pa. L. Rev. 1459 (1997)

I rely on Clark’s account in my description of Erie in the book. In this essay, he examines the problem of federal courts facing a state law issue that does not have a clear answer. Clark describes the three approaches currently employed by federal courts — predicting what highest state court would do, abstaining, or applying existing state law without prediction — and he discuss problems raised by each. Clark suggests that these problems might largely be solved by creating a presumption of certifying a state law question with indeterminate answer to state courts when state law permits. Clark agrees that Erie was in part a product of changing background understanding.

Lawrence Sager, Fidelity In Constitutional Theory: Fidelity As Synthesis: The Betrayal Of Judgment, 65 Fordham L. Rev. 1545 (1997)

Sager is a critically important influence on my thinking about fidelity, even if I don’t agree with the conclusions he draws. This essay in particular was incredibly rich and suggestive, though from my perspective, it took a few extra unnecessary steps. He begins by discussing the idea of fidelity as role. He describes this as the idea that “courts should follow instructions rather than act on their independent judgment.” Sager describes the irony of this position in certain theories about fidelity because in those theories “in order to follow the instructions [a judge] must exercise her own normative judgment.” He uses translation and Ackerman’s theory of synthesis as the clearest examples. Sager first describes the two theories as similar, in that they both have “a basal, unmitigated commitment to fidelity in principle, coupled with the discovery that pure or complete fidelity is impossible.” He then makes a distinction between the agency model — of which translation is a less extreme version — and the partnership model — which he supports — of the “role of constitutional judges.” Sager believes that translation is more plausible than the extreme versions of judges-as-agents theories, because it provides an explanation for how judges can interpret patently abstract and normative provisions in the Constitution such as free speech clause. However, he believes that translation misses the idea of collaboration between the Framers and present generation judges rather than instruction-taking by the judges which is built into the Constitution. Furthermore, he believes that translation theorists are constrained to see constitutional practices — such as the Ninth Amendment and other more abstract provisions — as an embarrassment. In a theory which considers normative judgment by judges to be an unfortunate necessity, Sager believes even the idea of a Constitution becomes suspect. The challenge, however, is not whether normative judgments are required; it is when normative judgments become either contested, or uncontested in a way that is inconsistent with the framers. That sets up the “creative” role for courts, even if the creativity is to the twin ends of fidelity.

Michael Klarman, Fidelity In Constitutional Theory: Does The Constitution Deserve Our Fidelity: Fidelity, Indeterminacy, And The Problem Of Constitutional Evil, 65 Fordham L. Rev. 1739 (1997)

Klarman is among the most skeptical of constitutional historians and theorists about the plausibility of a theory of fidelity. He believes theories such as translation cannot succeed because 1) it faces a dead-hand problem (the Framers themselves, if faced with modern conditions, would wish to reject some of their fundamental commitments), and 2) judicial subjectivity remains because we don’t know which circumstances to hold constant and which to vary and because even if we knew that, we can’t know what the Founders would do in light of the changes. Both arguments are, in my view, overly framers obsessed: Who cares what the framers would want to do today — the point is they established a higher order commitment that should survive (in a properly interpreted form) until rejected (even if they would have rejected it); and yes, judgment always includes some subjectivity, but the complication with the framers doesn’t render the subjectivity fatal.

Thomas C. Berg, Religion Clause Anti-Theories, 72 Notre Dame L. Rev. 693 (1997)

Berg develops a substantive conception of the Religion Clause, arguing against the idea that “there is no single viable principle or approach available for courts to use to decide cases under the Religion Clauses.” Instead, on his view, there is “a theory of voluntarism in matters of religion, sometimes referred to as ‘substantive neutrality,’ [which minimizes] government’s impact on the religious lives of the people, and [recognizes] that a pervasive government may need to take affirmative steps to ensure its impact on religion is minimized.” Berg believes that this approach “best translates the original understanding of the Religion Clauses into current circumstances.” He responds to the argument that the original understanding of the Religion Clauses offers no principle to apply, since it originally was based on federalism principles, which counseled leaving question of religion to the states, rather than offering any substantive principle regarding the relationship between Church and state. He first questions the argument that there was no substantive religious liberty principle behind Religion Clause. He then argues that, even if this was the case, there was certainly a federalist original understanding that the federal government should have “no power over religion.” Since “[t]hat same goal of minimizing effects on religion is precisely what is sought by the rule of voluntarism or substantive neutrality,” Berg argued that federalist rule can be adapted into voluntarism. Berk invokes translation theory to suggest that his theory “should not even be nearly as controversial” “since … a translation can be legitimate even if it conflicts with the express language of the relevant text.” Berg then turns to the question of applying the Amendment to the states, which Smith has argued to be incoherent. Berg claims that at least by Reconstruction, the Religion Clause has acquired the substantive meaning that government cannot prefer one denomination to another. Berg argues that, while it might have been possible at a time of religious homogeneity for the government to promote religion in general without violating the no-preference of denomination rule, pluralism in modern society means that voluntarism “may be the only approach consistent with a ‘no preference’ rule today.”

Michael J. Klarman, Antifidelity, 70 S. Cal. L. Rev. 381(1997)

This piece founds Klarman’s normative arguments against both originalist and non-originalist interpretative methods of constitutionalism. Both, he believes, are vulnerable to charges of anti-majoritarianism, because of (1) the dead-hand problem, and (2) judicial subjectivity. To Klarman, the dead-hand problem seems troubling especially because of the vast differences that exist between modernity and the Founding Generation. Nor does the Amendment process solve this problem because of its privileging of the status quo. “[C]onsider[s], and criticize[s], [three] scholarly strategies that [seek to ameliorate] the dead-hand problem while maintaining fidelity to the Constitution”: 1) special circumstances at Founding justifies “prioritizing that era’s ‘constitutional politics’ over the ordinary politics of today”; (2) it’s possible to amend the Constitution by non-Article V means, and (3) “living Constitution” or translation theory. Klarman criticizes translation because of its indeterminacy, which according to him invites the same problem of judicial subjectivity. He summarizes the problem with the theory as the difficulty (or the arbitrariness involved) in answering two general questions: 1) what circumstances to hold constant and what to vary in translation, (or at what level of generality to consider Framers’ intentions) and 2) how we can decide what the Framers would have done even if we could determine which changes are relevant. According to him, the dead-hand problem persists because we are still translating concepts from the past, which could conceivably be rejected by current majority or by Framers transplanted to modern times. A second problem he specifically discusses is the indeterminacy involved in deciding whether, even if we decide certain concepts justifies translation rather than repudiation, we would need to make “compensating adjustments” in another context. Klarman also discusses the problem of when relevant factors (if we could agree on them) have changed sufficiently to justify translation. Finally, Klarman argues that “[s]ome concepts simply don’t translate because the Framers had completely different problems in mind.” His conclusion is to advocate anti-constitutionalism as the solution to the twin problems of judicial subjectivity and dead-hand control, arguing that it’s not as radical as it sounds because “[i]n a significant number of areas…the Court already has adopted that position in everything but name.” As I’ve described elsewhere in this document, Klarman moves too quickly with both concepts. In my view (and the view our tradition at least implicitly embraces), constitutions are dead-hand documents in their nature. That’s not a “problem”; it’s a feature. No doubt our constitution makes it too difficult to amend; that flaw is the necessity to translation. “Subjectivity” is a concept that must itself be localized: the question as I’ve developed it in the book is whether a translation can stand as relatively uncontested within a particular interpretive context — not whether, across contexts, it seems arbitrary, or “subjective.”

William W. Fisher III, Texts and Contexts: The Application to American Legal History of the Methodologies of Intellectual History, 49 Stan. L. Rev. 1065 (1997)

In this foundational article, Terry Fisher considers how four methodologies of intellectual history — structuralism, contextualism, textualism, and new historicism — have influenced American legal doctrine and legal thought. He argues that the methodologies should be evaluated from a “purposive” standpoint, and offers nine uses of legal history to evaluate them. One of these nine uses is “[assisting] contemporary judges in construing constitutional texts.” Fisher asks whether, assuming some form of originalism is practicable and a desirable method of interpreting the Constitution, any of the four methodologies would be useful to that enterprise. He concludes initially that only contextualism seems helpful to this use. Contextualism, however, problematic for strict originalism, because contexts often change between the writing and the reading of the text. Fisher introduces translation theory to respond to this change, not by abandoning contextualism, but by attempting to “neutralize” the effect of the changing contexts. This solution, however, has its own problems, Fisher believes. It is more plausible than strict originalism, but the idea of “equivalence,” he argues, seems “chimerical” when the change in context is “a shift in ideology or worldview.” What equivalence means then “seems wildly indeterminate — and the more serious the contextualist inquiry on which the analysis is based, the more glaring the indeterminacy becomes.” Fisher thus concludes that “[although] contextualist intellectual history at first seems a potentially powerful tool in the hands either of an originalist judge or a judge committed to the sort of ‘fidelity through translation’ … its utility, in the end, proves doubtful.” This analysis helped shift my approach to locating the source of determinacy in fidelity to role. Translation is motivated by judges striving to keep values alive (admittedly, and maybe problematically, those values they also value), subject to the constraint of role.

William Michael Treanor, Private Property And The Future Of Government Regulation: The Armstrong Principle, The Narratives Of Takings, And Compensation Statutes, 38 Wm and Mary L. Rev. 1151 (1997)

Treanor is a powerful practitioner of translation as applied to the Takings Clause. This is a great example of how the theory keeps a value alive despite radical change in both the context and nature of legal regulation.

Lawrence M. Solan, Learning Our Limits: The Decline Of Textualism In Statutory Cases, 1997 Wis. L. Rev. 235 (1997)

In this important contribution, Solan critiques “New Textualism,” which he ascribes to Justice Scalia. “New Textualism” is not, Solan maintains, a good theory of interpretation — in the sense of getting to the meaning that the speaker, such as Congress, is trying to convey — because it ignores the “most basic strategies that we have for understanding natural language,” such as contextual information and knowledge of prototypes in everyday speech and understanding. He builds upon translation theory in advancing this claim, and notes two distinct trends in recent Supreme Court jurisprudence: “Scalia’s reliance on a more sophisticated notion of word meaning that allows for much more complete analysis of statutory language even within the textualist framework; and the Court’s (sometimes surreptitious) rejection of the textualist approach altogether.” Solan concludes that “the recent trends are generally healthy ones that are far more in keeping with our cognitive strategies for interpreting language, and therefore more likely to lead to a coherent and thoughtful jurisprudence of statutory interpretation.”

Beth Stephens, Human Rights On The Eve Of The Next Century: U.N. Human Rights Standards & U.S. Law: The Law Of Our Land: Customary International Law As Federal Law After Erie, 66 Fordham L. Rev. 393 (1997)

Beth Stephens argues that customary international is a federal question — despite Erie. She argues that the cases that I had relied upon, in which the Court refused to “defer to international norms when evaluating statutes and executive actions,” do not support the Bradley/Goldsmith critique of customary international law as federal law. This is because such refusal to defer when there are statutes/executive actions does not constitute “a rejection of either the federal status of such [international] norms or their validity in the absence of contrary political branch action.” She also believes I gave “too much credence” to Bradley/Goldsmith view that judges enforcing international customary law are imposing a “political” judgment. She believes that this is the result of the false view that “changing nature of customary international law [eliminates] the ‘implied consent’ of the United States government” — when in reality such changes do not “presuppose a less active role for the U.S. government in their development [and in decisions regarding their adoption as binding].” They could, obviously. But the claim about their political character is a reading of the reaction to the cases as political. Sousa confirms — both in Justice Souter’s opinion and Scalia’s dissent — this sense of their character.

Michael C. Dorf, Recipe for Trouble: Some Thoughts on Meaning, Translation and Normative Theory, 85 Geo. L.J. 1857 (1997)

Responding to the objections raised by Lawson, Fleming, and me to his article Integrating Normative and Descriptive Constitutional Theory, Dorf offers a rich account in response. He answers Lawson’s charge that he did not separate interpretation from adjudication (morality) by arguing that this is because, in many cases, there is no sharp distinction between interpretation and morality. He argues that there are many plausible meanings other than Lawson’s “public meaning,” and how we choose from these plausible meanings depends on why we care about the meaning in the first place. This claim is no doubt true, as is his argument that to privilege original meaning (as opposed to current meaning, evolved meaning, etc.) requires a normative argument. (In my view, Dorf is not giving enough weight, however, to a dualist account of why original meaning remains relevant.) Dorf argues that Lawson’s normative argument — that as long as original meaning doesn’t lead to terrible consequences, getting a consensus on an acceptable substitute for original meaning will be too costly compared with privileging original meaning — is weak because (1) the claim that we can more easily reach consensus on original meaning is dubious and (2) the claims that it’s less costly to adopt original meaning and that originalism doesn’t lead to terrible consequences are false. Dorf believes the same applies to my argument. He agrees with the emphasis on context, but he fairly criticizes my work for insufficiently accounting for the contexts between the original and current context. He acknowledges that translation does recognize the “interaction effects” with new text, but he believes it does not give enough consideration to the history that doesn’t lead to new text. I had criticized Dorf’s assumption that a normative theory was required for interpretation; Dorf fairly answers that such a theory need not be foundational. It doesn’t, in his words, have to “undergird” the descriptive account. Instead, all it need mean is a process by which a judge takes into account “considerations of justice.” Finally, he agrees with Fleming that his original article provided no full normative account. This is because his goal was primarily negative and because he believes that attempting to develop a normative account in the foundational sense is “misguided.” On this we certainly agree. The difference that remains is simply the extent to which an account of our tradition can lead with “a normative theory.” My argument, extended in the book, is that such an account is not responsive to the data, however compelling it might be, either normatively, or aspirationally.

William Michael Treanor, Fame, The Founding, and The Power To Declare War, 82 Cornell L. Rev. 695 (1997)

This masterful account of the Constitution’s war-making power considers briefly translation as an alternative to one-step originalism. “Having established the concrete understanding of the founding generation, the translator must still answer a threshold question: Has the world changed in such a way so that the concrete understanding of the constitutional text should change? In other words, the Founders gave Congress, rather than the Executive, the power to decide whether to start wars because they wanted the warmaking decision to be disinterested, and they feared that Presidents would lead the nation into war in order to achieve a place in history. The translator must answer whether it continues to be true that the Executive is the branch of government most likely to have self-interested reasons to wage war.” The article develops both a translation and non-originalist account of a modern reading of the war-making power. This is a topic I avoided in my book. Treanor advances it masterfully.

Barry Friedman, Valuing Federalism, 82 Minn. L. Rev. 317 (1997)

This powerful account of the ideal of federalism without our constitutional design builds upon translation theory. Friedman argues that we don’t really value federalism in American constitutional law, because we haven’t made an effort to reckon the value of federalism. Since there is no analytical exploration of the benefits of federalism in large parts of the doctrine, the doctrine permits judges to make ad-hoc decisions that, without theoretical justification. He examines the various methods by which national authority has thus increased: interpreting enumerated and implied powers broadly, ignoring the distinction between enumerated and unenumerated powers, preemption, and the courts’ “[displacing] state authority, even when the national legislature hasn’t done so.” Friedman then discusses the various forces that account for the trend toward regulatory centralization: various events in history, technological advances, “the death of legal realism,” judicial deference to political actors, the “political economy” of centralization, and the advantages of uniformity for trade. Finally, Friedman attempts a beginning of a theory of federalism. He focuses first on the value of state autonomy, reviewing the “shopworn” and untested arguments by constitutional lawyers as well as arguments by political economists, whose focus on efficiency makes them unrealistic and incomplete. He suggests a cooperation between the two groups, offering some reasons why state autonomy might matter as an area for further study: public participation in democracy, accountability, states as laboratories for experimentation, protection of citizens’ health, safety, and welfare, cultural and local diversity, diffusion of power to protect liberty. Friedman then turns to benefits of national authority, urging here that constitutional law to take into account the work of political economists, which have provided a partial list of such benefits: provision of public goods, control of externalities of state regulation, prevention of race to the bottom, and uniformity.

Paul E. McGreal, Alaska Equal Protection: Constitutional Law or Common Law?, 15 Alaska L. Rev. 209 (1998)

McGreal’s essay focuses on Alaska Equal Protection doctrine. It explores one of the main justifications of federalism — namely, that it allows for state experimentation. In describing federal Equal Protection doctrine, the article powerfully uses the idea of shifting uncontested discourses to describe the history of gender discrimination cases.

James E. Fleming, We the Unconventional American People, 65 U. Chi. L. Rev. 1513 (1998) (review essay)

In this review of Bruce Ackerman’s We the People: Transformations (Harvard, 1998), James Fleming critiques the idea that we should recognize other methods of Constitutional transformation outside of the formal amendment process in Article V. He critiques specifically Ackerman’s claim that the New Deal had effected such a transformation or “amendment.” Fleming believes that Ackerman’s focus on transformation results from the absence of a theory of interpretation. He predicts that Ackerman’s view of the Founding, Reconstruction, and New Deal as discontinuous will hinder his attempt to elaborate such a theory in his next book. Moreover, he claims that as long as Ackerman relies on some sort of originalism for his theory of interpretation, he will create “myths of rediscovery” — the very thing that Ackerman criticizes as the alternative to his explanation of the New Deal. Fleming cites me as one of Ackerman’s acolytes to evince this claim. According to Fleming, my account of the New Deal “deradicalizes Ackerman’s account of the creativity of transformation in favor of a quest for fidelity in translation of original meaning, which amounts to a sophisticated myth of rediscovery.” This is a fair criticism of this version of my argument. It was one of the points that pushed me to develop a more comprehensive understanding of constraint. Fleming favors “a theory of interpretation that conceives fidelity to the Constitution as integrity with the moral reading of the Constitution” rather than originalist in the various meanings of the word. He advocates “a concept of interpretation like Dworkin’s,” which argues that “the Constitution embodies abstract moral principles…rather than…relatively concrete rules” and that “interpreting and applying those principles requires fresh judgments of political theory, rather than historical research to discover relatively specific original understanding or original meaning.” I would favor that interpretive as well — but it is not an account of the Court’s actually practice. And given the diversity of our political culture about many things, but especially “abstract moral principles,” I’m not sure it could ever be.

Eric J. Segall, A Century Lost: The End of the Originalism Debate, 15 Const. Commentary 411 (1998)

Segall is a powerful critic of what we could call a results-based-understanding of originalism. He argues instead for a view of the role of original meaning in which “judges refer to the original meaning of the Constitution to provide an important link to our past culture and traditions, but the original meaning rarely dictates results in real cases because the context within which that meaning is applied is constantly changing.” As he argues, scholarly attempts to criticize or justify important Supreme Court decisions on an originalist basis are futile: unless judges follow strict originalism, Segall believes there is no meaningful distinction between originalism and non-originalism because general principles rather than specific intent of the Framers cannot resolve difficult current Constitutional issues. Using Brown as an example, Segall usefully builds on my analysis. As he accounts, my reading does not try to justify Brown on originalist grounds but rather “attempt[s] to understand how a change in the factual context led to a change in a legal decision.” Segall supports the approach that takes into account social debates, which he believes are much more influential in judicial decision-making than the Framers’ specific intentions. He also agrees with a view of the proper place of history in constitutional interpretation — requiring study not just of the original meaning but also of how that meaning has been applied through history.

Curtis A. Bradley, The Status Of Customary International Law In U.S. Courts — Before and After Erie, 26 Denv. J. Int’l L. & Pol’y 807 (1998)

Bradley rejects the idea that customary international law should be considered a federal law, claiming in particular that “customary international law did not have the status of federal law in the nineteenth century…and…that customary international law’s purported status today as federal common law is…in tension with the Supreme Court’s decision in Erie Railroad v. Tompkins.” He rightly states that I had misstated his and Jack Goldsmith’s argument about the domestic application of customary international law as requiring a prior ratification by statute: The only requirement their position entails is “political branch authorization,” which can take a variety of forms. He also criticized my characterization of whether or not to have “political branch authorization” before domestic application of customary international law as a choice between “a particular philosophy of law and a value of justice,” saying that it reflected a tendency to “focus on rights to the exclusion of structural and institutional considerations,” a tendency which “ignores the possibility that institutional considerations may themselves have implications for justice” and “may also reflect an assumption that courts are the principal agents for justice, a proposition that is both uncertain and controversial.” This is an important point about the source of interpretative force, and I accept it about institutions. It’s the same point I offer against the position Goldsmith and Walt’s argument that legal positivism is “irrelevant” to Erie: Just as institutions have interpretive force, so too do legal cultures — regardless of the logical entailments. See Fidelity & Constraint, 519–20 n31.

Gregory E. Maggs, Translating Federalism: A Textualist Reaction, 66 Geo. Wash. L. Rev. 1198 (1998)

Maggs rejects the need for translation to understand the modern commerce clause cases, arguing a proper application of textualism is sufficient. Under that view, Lopez is correctly decided because the statute regulated something that would not have been seen as “commercial activity” 200 years ago. Separately, Maggs worries translation might often be seen as politically motivated. I certainly agree with the second point — indeed, as the book argues, that is precisely the perception that threatens the enterprise. But the first point ignores the Necessary and Proper Clause. Whether or not the activity was “commercial activity,” if Congress views it as necessary and proper to regulate commercial activity, how does the textualist decide?

Deborah Jones Merritt, Textualism and Federalism: The Third Translation of the Commerce Clause: Congressional Power to Regulate Social Problems, 66 Geo. Wash. L. Rev. 1206 (1998)

In this essay, Merrit makes a powerful extension of the translation argument: that the Court should use translation rather than textualism to justify Congress’ power to regulate social issues such as racism through the power granted in the Commerce Clause. Under that approach, the argument would hold that we can abstract from the powers granted to Congress in Article I, section 8 the general principle that Congress should be able to regulate those issues that states cannot effectively regulate and translate this principle to the 20th century. Merritt is not certain, she insists, whether the argument is correct, but she believes that it raises the right questions. The contrasting non-translation based textualist approach of the Court raises several problems: first, it leads the Court to ask meaningless questions such as the connection between regulated activity and commerce; second, it cannot differentiate between activities which can and cannot be regulated effectively by the states themselves; third, there is “a loss in our failure to articulate national values other than commerce” when regulations are justified only by their relationship to commerce; fourth, it leads to strained reasoning which cannot be understood by ordinary citizens. Merritt raises questions about my assumption of the extent of a political constraint on translation. Sustaining those assumptions is a big burden of the book.

Michael C. Dorf, Foreword: The Limits Of Socratic Deliberation, 112 Harv. L. Rev. 4 (1998)

In this critically important piece, Dorf outlines the interpretative debate between textualists and purposivists, and then criticizes the common law method common to both approaches: That method, Dorf argues, is unsuited to a world in which context may change rapidly. That reality suggests the need for more experimentation, both by states and by lower courts, and it suggests the Court treat precedents more provisionally than would be required under stare decisis. Dorf acknowledges that movements such as law and economics and legal realism have had an impact in a similar direction, but argues that their effect on how the Supreme Court decides cases is limited. He cites “fidelity in translation” as “nicely captur[ing] the leading place of deference in the modern constitutional order.” But he criticizes the theory as having very little to say about issues in cases actually litigated. More specifically, the theory does not direct whether a right exists or whether government classification should receive heightened scrutiny, which is the core question in constitutional adjudication. I agree the theory does not provide that account. My aim in the book has been to provide a richer sense of how that understanding develops from the interpretive context.

Susan Bandes, “We The People” and Our Enduring Values, 96 Mich. L. Rev. 1376 (1998) (reviewing Akhil Amar, The Constitution and Criminal Procedure: First Principles (New Haven: Yale University Press. 1997)

In this review essay, Susan Bandes criticizes the restrictive scope of Amar’s understanding of the 4th, 5th, and 6th Amendments. On her reading of Amar, their focus is on truth-seeking and the protection of the innocent; Bandes believes they should include other values such as “fairness, judicial integrity, equality, and…political concern for the abuse of government power.” Amar’s more restrictive notion is grounded, Bandes argues, on the intent of the Framers. He argues that both the rights involved and the proper remedies in 4th amendment violation should be based on tort law, translated into the 21st century, rather than on the exclusionary rule, because “the modern-day equivalent of a horse and buggy is a car, not an Andy Warhol poster.” According to Bandes, Amar relies on translation theory to support this argument. But she criticizes this reliance, arguing that both translation theory and Amar’s own use of the theory in noncriminal constitutional protection are much less restrictive. For example, she cites my approval of “using the takings clause to create a new cause of action to advance environmental justice.” This is an important point, though, in my view, the scope of the freedom to reach beyond the original values will turn on a discourse that is background to those values. Environmental justice could be less contested as an aim than “fairness.” If it were, it could support a more expansive scope for Takings than the parallel within the Fourth Amendment.

Richard A. Posner, Against Constitutional Theory, 73 N.Y.U.L. Rev. 1 (1998)

Judge Posner is a famous critic of constitutional theory. He grounds his criticism on the view that it can’t progress because 1) it can’t persuade people who don’t already agree with the theorist’s policy prescriptions, 2) it can’t be resolved, either theoretically or factually, and 3) it’s not responsive to empirical data. Posner groups me with the procedural constitutional theorists, and acknowledges the significance of “turn[ing] the tables on Scalia by showing that originalism is compatible with what Scalia would think an impermissibly flexibility of interpretation.” However, as he argues, “whether a literal translation is good depends on the purpose of the translation; for some purposes, literal translations are best. Then, too, fidelity to original meanings need not be the sovereign virtue of constitutional interpretation.” This is of course true. But again, my account is not one of logical necessity; it is an account of (legal) cultural understanding.

Margaret Raymond, Rejecting Totalitarianism: Translating The Guarantees of Constitutional Criminal Procedure, 76 N.C.L. Rev. 1193 (1998)

This critically interesting essay argues that translation theory (linked to my own work but not exclusively) explains constitutional interpretation in the context of criminal procedure. She “examines the courts’ use of…totalitarian comparisons and explores the role that the comparisons played in the development of constitutional criminal procedure doctrine.” From that, she concludes that “in using the comparisons to provide contemporary context for their decisions, the courts demonstrated the principle of constitutional interpretation as translation.” She argues that these comparisons were used to translate the meaning of “tyranny,” against which the criminal procedure amendments were drafted, into the modern world and that their widespread use shows an acceptance, though unarticulated, of the translational model of constitutional interpretation. This, as she argues, while some consider the entire translation enterprise to be invalid, she believes translation theory to be of real descriptive value.

Jeffrey L. Dunoff, Linkage As Phenomenon: An Interdisciplinary Approach: Article: Rethinking International Trade, 19 U. Pa. J. Int’l Econ. L. 347 (1998)

This is an extremely provocative essay drawing on the theory of contestability that I had developed (and develop more in the book) to explain a dynamic at the WTO. Dunoff identifies the “linkage problems” that have arisen recently in trade law (“trade and” issues) which have made WTO dispute resolution difficult. Dunoff notes that scholars criticize WTO for obscuring or ignoring the “conflicting values at stake.” However, he argues that WTO cannot openly resolve conflicts among these values precisely because they are contested in such a way as seemingly to remove them from the “legal” domain and place them in the “political” domain. And WTO, like domestic courts, faces an institutional competence problem when confronting such contested issues; indeed, for WTO to openly struggle with the conflicting values present in linkage problems might be self-defeating. This was a fascinating extension of the approach I’ve tried to develop to an interestingly parallel context.

Barry Friedman and Scott B. Smith, The Sedimentary Constitution, 147 U. Pa. L. Rev. 1 (1998)

In this important essay, Friedman and Smith argue that constitutional interpretation is more than a choice between “anachronistic originalism” and “non-historical living constitutionalism.” They argue that history is essential to constitutional interpretation, “but the relevant history is not just that of the Founding, it is that of all American constitutional history.” This history can be seen in “all of the sources that reveal the deeper commitments that we share,” written or unwritten, found in “the decisions of the Supreme Court, in statutory law, in the actions of our governmental bodies, in the works of our forbearers, and the common practices of our people.” They argue that attempts to reconcile originalist fidelity and a living constitutional, while creative, is attempting to achieve the impossible. As they write, “in order to label a responsiveness to background structural changes as ‘faithful’ to the Founding, one must adopt an impossibly strained understanding of the concept of ‘fidelity.’” They question whether fidelity still has meaning when judges have to translate not just changes in facts but changes in understanding. Likewise, they write that if constitutionalism is about “historically identified, deeper values,” then judges should worry more about history, not democracy. I have less concern about the ability of the concept of fidelity to bear the weight of the practice I’ve described. And while I agree that constitutionalism is — in part — about “historically identified, deeper values,” it does not follow that judges should worry more about history, not democracy. The values are a commitment which the judges try to perform. Democracy is the constraint within which they perform. They can’t control the constraint. But by enacting the commitment, they demonstrate fidelity.

Brett Scharffs, The Role Of Humility In Exercising Practical Wisdom, 32 U.C. Davis L. Rev. 127 (1998)

In this essay, Scharffs develops a more general account of using “humility” as a technique for resolving the conflict between fundamental values. Arguing that “practical wisdom” is the best model we have of what judges do, although acknowledging that currently the concept, its importance, and its practical implications for adjudication are not well explained, Scharffs examines the various elucidations of the concept and focus on the central conflict between justice and mercy. Humility, he argues, is the best method to reconcile these two values.

Jack Goldsmith and Steven Walt, Erie And The Irrelevance Of Legal Positivism, 84 Va. L. Rev. 673 (1998)

I discuss this article in the book. In it, Goldsmith and Walt challenge the conventional wisdom that Erie resulted from a judicial commitment to legal positivism, claiming that there is neither a well-supported historical nor a conceptual or normative connection between positivism and the holding in Erie and that constitutional considerations alone explained Erie. They argue that I have asserted all three connections at various points in my writing, and that the “Erie-effect,” if understood as a causal explanation, is not adequate either: First, it explains neither the time gap between the rise of positivism and Erie nor the significance of other factors or positivism’s relationship to those factors; second, positivism was believed by everyone involved in the debate and was not explicitly central to it; third, they argue it doesn’t provide a convincing mechanism connecting the illegitimacy costs and Erie. As I describe in the book, the essay understands legal change as if it were a chain of logic. But the constraints I am describing are not arguments, they are understandings. Against the background of one theory, certain moves are easier than against the background of others.

Bret Boyce, Originalism and The Fourteenth Amendment, 33 Wake Forest L. Rev. 909 (1998)

Boyce’s article is a powerful attack on originalism generally, and as applied to the 14th Amendment in particular. He argues “that both the conservative and ‘liberal’ originalist projects have been a failure” and that despite many originalists’ assumption that “current constitutional jurisprudence is essentially rooted in original understanding,” “originalism is difficult to reconcile with democratic principles, and a nonoriginalist approach lies at the core of actual constitutional practice, if not current constitutional ideology and academic discourse.” More specifically, Boyce argues that originalism is especially problematic when applied to the Fourteenth Amendment and that its inability to justify many decisions that are now firmly part of “constitutional bedrock” undermines its legitimacy. This leads Boyce to endorse a common-law constitutionalism. Translation theory is classified as a kind of neo-originalism, embracing a generalized form of “semantic originalism.” He rightly describes my project as taking originalism almost as an axiom, as distinct with others who use it pragmatically. That fact ultimately frames the nature of our disagreement. If you believe, as I do, that the judicial project is inherently originalist — in just the sense that the court could not deviate from grounding its opinions in the meaning of the constitution — then the question is always simply what form of originalism are we describing.

Frances H. Foster, Translating Freedom for Post-1997 Hong Kong, 76 Wash. U. L. Q. 113 (1998)

This article applies translation theory to the question of how China might interpret Hong Kong’s “mini-Constitution” generally, and in particular, the guarantee of freedom of the press. While acknowledging that there are problems with analogizing constitutional interpretation methods of foreign countries to those of the US, Foster argues that the most likely method for China to employ is something that resembles translation in US constitutional scholarship. Foster believes that this method allows China to maintain credibility by maintaining a commitment to the “one country, two systems” policy while also giving it the flexibility to accommodate changed circumstances. However, Foster identifies significant dangers to Hong Kong in this approach, since it allows China to “unilaterally [define] the values and purposes of translation” and since China is not subject to the two constraints on translation that I had described in the US context: familiarity and humility.

Paul E. McGreal, The Flawed Economics Of The Dormant Commerce Clause, 39 Wm and Mary L. Rev. 1191 (1998)

This is a powerful application of the Erie-effect, demonstrating that advances in economic theory have now rendered contestable an economic assumption standing behind the Court’s dormant commerce clause jurisprudence. That contestability, McGreal argues, should lead the Court to be more deferential to states.

Joel R. Paul, The Geopolitical Constitution: Executive Expediency and Executive Agreements, 86 Calif. L. Rev. 671 (1998)

Paul argues that the judiciary has been too deferential to claims of “executive expediency” in expanding Presidential power in foreign policy. He agrees that interpretations must change in the face of changing context. But he believes that the judiciary has given to much credence to self-serving characterization of the foreign affairs context by the executive branch. His grounds his argument for shifting power back to Congress, however, not on originalist arguments, but on a belief that such a shift would result in a “more effective, coherent, and democratic foreign policy.” As part of his argument, he criticizes some originalists’ claim that the Framers intended the President to be the “sole organ of foreign relations.” For this conclusion, relies in part on my and Sunstein’s argument, which he sees as having “refuted originalist historiography about the executive branch while questioning the validity of originalism.”

Vicki C. Jackson, Federalism And The Uses And Limits Of Law: Printz And Principle?, 111 Harv. L. Rev. 2180 (1998)

Examines the recent revival of federalism in Supreme Court jurisprudence, using Printz as a starting point. She argues that neither Printz nor Lopez has “identified a doctrine that combines in appropriate degrees recognition of the fundamentally political character of federalism, its overarching goal of creating a strong national union, and a textually and historically plausible account of when that national power is limited by the constitutionally secured interests of the states.” However, she believes that Lopez may be salutary if it can be understood as “a mild application of a reinvigorated requirement that Congress’s means of carrying out its powers must be ‘necessary and proper’ to enumerated ends.” While sympathetic to the argument that the judiciary is less competent than the national political process to protect interests of the states, Jackson rejects views such as those of Rubin and Feeley that there should be no judicial enforcement of federalism principles. She argues that Rubin and Feeley underestimate the value of federalism and that, because of rule of law and process rationales, judicial review is desirable even if one disagrees with federalism’s value. Instead, Jackson advocates judicial review of federal actions on federalism principles — but with considerable judicial deference and a flexible, “all-things-considered” approach. She also supports a “process-based rule requiring justification,” similar to the “clear statement” rule I had identified in Translating Federalism.

Michael J. Klarman, What’s So Great About Constitutionalism?, 93 Nw. U.L. Rev. 145 (1998)

In this important work, Klarman surveys the field of “constitutionalism” to summarize ten leading accounts: “enforcement of a principal-agent relationship; enforcement of societal precommitments; providing a mechanism for checks and balances; protection of minority rights; maintenance of continuity or tradition; symbolizing national unity; serving an educational function; securing finality for disputed issues; providing a rule of recognition for law; satisfying a majoritarian preference for constitutionalism.” Translation theory fits within the section on constitutionalism as justified by “maintenance of continuity or tradition.” As he describes it, translation attempts to preserve the virtues of continuity (“predictability, stability, ‘constitutive rationality’”) while ameliorating its vices (dead-hand control compounded by inequalities of the past). As described above elsewhere, however, he does not believe this approach succeeds in solving either “the dead-hand problem of originalist interpretive methodologies [or] the judicial subjectivity problem of nonoriginalist methods.” (As I’ve described, I think both of these problems flow from Klarman’s over-emphasis on originalism.) Klarman’s alternative description — “politically unpredictable” impositions by the Supreme Court of “culturally elite values in marginally countermajoritarian fashion” — raises problems democratically. He offers two ways to reconcile this constitutionalism with democratic premises — that we have no consensus on what democracy is anyway and that the culturally elite values are the desirable ones — but rejects them both.

Bradford R. Clark, Translating Federalism: A Structural Approach, 66 Geo. Wash. L. Rev. 1161 (1998)

Brad Clark resists my “radical translation” argument — specifically, the argument that the judiciary should impose “made up” limits on regulatory power that do not derive from constitutional text, in order to restore the original balance of power between federal and state governments that has been distorted by the growth in commerce power. He acknowledges that change in context has led to growth in congressional power, that there is a limit to judicial review in the form of the Frankfurter constraint, and that the two together have led to a distortion of the balance in federalism. But he believes that the solution I advance would appear political, because they do not derive from the Constitutional text. Indeed, he believes, it would appear even more political because 1) the original balance in federalism is already contested, 2) changes in context would lead to a constant fluctuation in current balance that would require a constant judicial “re-calibration” against that original balance, 3) the remedy would violate the structural balance between the judicial and political branches, which is at least as important as the federalism balance. Instead, Clark believes that there are rules that allow the courts to protect states and preserve federalism (even if they may not be able to restore the original balance) while remaining true to the constitutional text and its institutional role. First, he believes the Court can read plausible textual limitations into the commerce clause and to articulate principled structural limitations (such as enumeration of federal power and reservation of power to the states) on the Necessary and Proper clause. He believes that Lopez does this and thus views the Lopez decision more optimistically than I do. His second rule involves the negative Commerce Clause: Clark believes that “the [Supreme Court has] limited institutional competence to police ‘anything more than discrimination’” under this doctrine. He believes that a more activist approach by the court under this Clause would not be a valid translation and would instead lead to a violation of not only the judicial/political balance but also the federalism balance. He argues that the text, history, and structure of the Constitution suggests that the Court should abandon the negative Commerce Clause and anchor its current jurisprudence under that doctrine in the Privileges and Immunities Clause and the Import-Export Clause, which provides better textual support. Finally, he argues that anti-commandeering rule articulated in Printz “protects federalism in a manner consistent with the text of Article I” as well as the structure of the Constitution and is thus not a “second-best” rule as I have argued. I don’t agree with Clark about whether my account is “radical” — at least once one sees (as was not clear before the book) the same move being made on all sides. I also don’t agree that an interpretation would “seem political” simply because it did not rely upon constitutional text. The words “federalism,” “separation of powers,” and “democracy” also don’t appear in the constitutional text. But at different times, courts have been able to invoke them without “seeming political.” Instead, what constrains the court (in what I had called the “Frankfurter constraint,” but which I describe more generally in the book) is a present political and intellectual balance. Those are the walls within which a court can fill out the constitutional value it is determining to protect. Perhaps the rhetoric of an opinion should not acknowledge it in this way, but my account is offered for understanding, not opinion drafting. Overall, though we stand on different spots, this piece was critical in sharpening my thinking about the argument generally.

Jeffrey Rosen, Translating The Privileges Or Immunities Clause, 66 Geo. Wash. L. Rev. 1241 (1998)

Rosen builds his argument upon a distinction. I had argued that “in Commerce Clause cases, the problem of Lochner could be avoided by deference in the face of uncertainty.” Rosen contrasts that view with his belief that, “in the context of affirmative action…the escape from Lochnerism is not so simple.” That is because the problem with Fourteenth Amendment jurisprudence stems not from which clause–the Due Process or the Privileges or Immunity Clause–is used to protect substantive rights, but rather from the fact that the historical context of the Fourteenth Amendment had become obsolete. He therefore applies the notion of translating to the Privileges or Immunities Clause in the context of affirmative action–addressing Adarand in particular–and finds that the exercise does not solve the problem of Lochner. Instead, he believes, it “look[s] very much like the textually unmoored substantive due process inquiry that the entire thought experiment was designed to avoid.” Likewise for “textualists and moderate originalist[s],” “the promise of textualism… — the promise that it would lead to fidelity and restraint at the same time — seems, in the Fourteenth Amendment context at least, increasingly elusive.” This piece helped me think more sharply about the nature of the views that constrain Lochnerism: what in a context makes that move both seem like Lochner and seem inappropriate?

Steven G. Calabresi, SYMPOSIUM BOOK REVIEW: We Are All Federalists, We Are All Republicans: Holism, Synthesis, and the Fourteenth Amendment, 87 Geo. L.J. 2273 (reviewing Amar The Bill of Rights: Creation and Reconstruction)

In this review essay, Calabresi contrasts Akhil Amar’s work with translation theory. He notes first how textualists such as Amar are careful to insist that text changes culture; by contrast, Calabresi argues I (and Ackerman) ignore that dynamic. I agree this is a potentially important dynamic; I’m not sure I agree that it has much of an effect in the contexts I am reckoning. Calabresi suggests I “let[] every twist and turn in the culture become an excuse for discarding its potentially transformative original meaning.” Certainly not “every twist and turn” could be relevant; the question is whether no twist or turn is relevant. Finally, Calabresi argues I have not “attempted a textual synthesis,” taking the text seriously. To the contrary, it is by taking, for example, the Necessary and Proper Clause seriously that one is presented with the difficulty of cases restricting the scope of Congress’s commerce-related authority. Likewise the transformative Civil War Amendments — it is by taking the text of §5 seriously that the scope of the Court’s §5 jurisprudence becomes difficult to account.

Stephen M. Griffin, Constitutional Theory Transformed, 108 Yale L.J. 2115 (1999)

In this article, Griffin criticizes the restoration theory of the New Deal — that New Deal can be justified as a restoration of principles expounded by Chief Justice Marshall. Instead, Griffin advocates for a historicist approach, arguing that “in order to understand our constitutional world we must transform constitutional theory by turning our attention from interpreting the Constitution, [which focuses too much on the values at the time of the Founding of the Republic,] to understanding the relationship between the Constitution and the historical development of state institutions.” He criticizes translation theory because he understands it to assume that “significant constitutional changes are solely a matter of changes in facts, rather than changes in values.” According to Griffin, even those values embodied by the Framers in the Constitution are part of a “larger historical worldview that no longer exists.” Readings of translation theory like this are what led me to more clearly separate role from meaning. I continue to believe you can’t faithfully interpret meaning by changing what would be seen as values. But fidelity to role may in effect achieve a similar result.

Richard H. Fallon, Jr., How to Choose a Constitutional Theory, 87 Calif. L. Rev. 535 (1999)

In this piece, Fallon considers the question of by what criteria a constitutional theory should be chosen. Argues that 1) the choice of a constitutional theory must be “based at least partly on considerations that are external to the constitutional text,” 2) some of the competing criteria which must be satisfied are “the requirements of the rule of law, …fair opportunity for majority rule under a scheme of political democracy, … [and] substantive justice by protecting a morally and politically acceptable set of individual rights,” 3) “theories should be judged by their likely fruits,” and 4) “questions of constitutional theory are not optional”; they have “necessary role in the work of judges and lawyers.” Fallon sees translation theory as a kind of positivism. I’ve tried in the book to resist that framing. He agrees, however, that “[a]s the constitutional community’s relation to the written Constitution [changes], interpretive methodology should also change.”

Ernest A. Young, Preemption At Sea, 67 Geo. Wash. L. Rev. 273 (1999)

Ernest Young is among the most adept scholars deploying translation theory. In this essay, he proposes that “there should be no special preemption doctrine in admiralty.” According to him, “such a doctrine raises substantial practical difficulties, and…fails to satisfy the basic constitutional objection that federal courts are generally able to make law — much less to preempt state law — only in the interstices of duly enacted federal statutes or constitutional provisions.” Young argued that Jensen, a leading case in maritime preemption, could be considered an effort to “‘translate’ the Framers’ conception of maritime law into a context in which assumptions about the available categories had changed. “ However, Young argues that Jensen was a problematic translation because “the new relationship it constructed between state and federal law fits neither the current [post-Erie] legal framework governing preemption and federal common law generally nor the Framers’ presupposition that the general maritime law would not have preemptive effect.” He argues that a “[h]olding that maritime law is not supreme” within the meaning of Article VI [“while retaining the federal courts’ authority to apply that law in cases of unique federal interest”
] would re-create the Framers’ critical presupposition concerning the relationship between state and maritime law; moreover, it would eliminate a particularly confusing exception to the general rules that federal common law is interstitial and preemption occurs only after a deliberate choice by Congress.” This approach would also, according to him, be consistent with the rule of conservatism in translation.

John Fabian Witt, Making the Fifth: The Constitutionalization of American Self-Incrimination Doctrine, 1791–1903, 77 Tex. L. Rev. 825 (1999)

Witt explores the history of the privilege against self-incrimination, to discover a fascinating application of the Erie-effect. Unsurprisingly, the history is complicated. Even though it was enacted through the Fifth Amendment, Witt argues that for a significant period thereafter, the privilege remained rooted in common law, which included broad disqualification rules of which the privilege against self-incrimination of nonparty witnesses was a part. Witt explains that these rules reflected common law ideas regarding fact-finding at the time and that their purpose was to “promote reliability of outcomes in the fact-finding process in an age before the institutionalization of cross-examination…and…to legitimate those outcomes by protecting the legitimacy of the oath as a guarantor of the reliability of sworn testimony.” Witt argues that it was not until ideas regarding fact-finding changed — and the common law rules regarding witness privilege were accordingly narrowed — that the privilege became constitutional. He argues that because of the changed conception of fact-finding, the constitutional privilege was originally narrow; however, later courts broadened the privilege by “[reaching] back into…decisions that were based on the [outdated,] broader common-law self-incrimination rules…, …[fashioning] a new set of expansive and often inconsistent constitutional self-incrimination doctrines, unmoored from newly transformed fact-finding methods and rooted instead in a set of tenuous privacy rationales.” Witt argues that “[t]he difficulty with [this] re-expansion of the privilege was that it anachronistically put old, broad common-law doctrines to a new and theoretically unprincipled use.” Finally, Witt suggests that “the common-law privilege’s role in promoting fact-finding — in guaranteeing the reliability and the legitimacy of criminal trial outcomes — offers a historically based rationale for reorienting contemporary constitutional self-incrimination doctrine.” However, he cautions that this does not mean the “[wholesale graft of the] broad doctrines of the common-law privilege…onto modern constitutional self-incrimination law,” since “the task of translating the…Self-Incrimination Clause raises an ‘Erie-effect’ problem in that the transformation in common-law fact-finding…represents a transformation of [an] uncontested discourse” that had partially formed the basis of the privilege.

John G. Osborn, Legal Philosophy and Judicial Review of Agency Statutory Interpretation, 36 Harv. J. on Legis. 115 (1999)

Osborn locates his account of statutory interpretation within agencies — that decisions concerning agency statutory interpretation “reflected the legal community’s vacillation between legal positivism and natural law, [with] Chevron signal[ling] a judicial move toward positivism” — within the framework of translation. Acknowledges that translation model might be too “linear and reactive,” Osborn argues instead that “a move out of contestability between natural law and legal positivism toward the relative dominance of positivism” better fits the cases. This is counter, he believes (and rightly so) to the account that I provided. Moreover, in his account, public attention plays less or no role, and that the decisions are best understood as “judicial reactions to general philosophical shifts rather than judicial resolutions of moments of contestability.”

Jordan J. Paust, Customary International Law And Human Rights Treaties Are Law Of The United States, 20 Mich. J. Int’l L. 301 (1999)

In this article, Paust severely criticizes Bradley and Goldsmith’s argument that customary international law (CIL) is merely general common law and that the treatment of CIL as federal law was a modern development. He also severely criticizes their argument that the newer human rights treaties “[do] not apply as domestic law and thus [do] not preempt inconsistent state law.” Finally, he criticizes their argument that the federal judiciary should not apply CIL because of balance of power concerns. He concludes that the Bradley/Goldsmith arguments are “antithetical to the expectations and strivings of the Founders, the policy-structure of our Constitution, …our rich history, [and] to our future in an increasingly interdependent world and the demands of countless souls for a measure of human dignity and effective human rights.” To the extent I build on Bradley and Goldsmith’s article, Paust likewise criticizes my “ahistorical bias against human rights” in the portion dealing with the Bradley/Goldsmith argument. According to him, I have made several incorrect assumptions: 1) that customary human rights law is new and is “divorced from or based less on other forms of customary international law than on patterns of expectation and practice,” 2) “that ‘consent’…was a primary ‘source’ of [CIL],” and 3) “that ‘consent’ is now less relevant, especially with respect to human rights.” He also states that, contrary to my argument, judicial use of “scholarly writings (among other indicia) to evidence the content of international law” has a long history and is not unique to customary human rights. This criticism is important, and I leave Bradley and Goldsmith to defend their claims (though the Supreme Court seems to have bent to their side). My argument was contingent upon their view and does not depend upon not seeing any “customary human rights law.” It is instead a point about balance — the more that there is, the more trouble it creates. This, ultimately, was the view of Justice Souter in Souza.

Paul E. McGreal, The Role of Suspicion in Federal Equal Protection, 8 Wm. & Mary Bill Rts. J. 183 (1999)

This is a subtle application of the contested/uncontested discourse analysis to explain the Court’s understanding of mental retardation.

Thomas Y. Davies, Recovering the Original Fourth Amendment, 98 Mich. L. Rev. 547 (1999)

This powerful historical article about the original meaning of the 4th Amendment rejects the idea of translating the original meaning into a current context. I note the piece only to highlight one recurring mistake in the way translation is understood. As Davies puts it, the effort of translation is to restate the Amendment at “higher levels of abstraction.” But I reject the very idea of levels of abstraction. A translation is not something at a different plane; it is something in a different context.

David Yassky, The Second Amendment: Structure, History, and Constitutional Change, 99 Mich. L. Rev. 588 (2000)

This is a powerful and compelling effort to use translation to understand the Second Amendment. I was hopeful that the book could include a more extensive account of the Second Amendment than it did. Had it, this account would have been central.

Brian F. Havel, Forensic Constitutional Interpretation, 41 Wm. & Mary L. Rev. 1247 (2000)

Havel smartly describes how modern values “dominate,” to use Sandalow’s term, constitutional interpretation, even (or especially) with the “conceit” of translation. He has deployed translation elsewhere, but uses it here in a masterful account of the full range of interpretive “monotheism.” As the book describes, I do believe that there is a sense in which modern values can dominate. Translation is always subject to that constraint.

David Fontana, Refined Comparativism in Constitutional Law, 49 UCLA L. Rev. 539 (2001)

This wonderful essay uses translation theory to help explicate the work of judges engaged in comparative constitutional law.

Larry Alexander and Emily Sherwin, The rule of rules: Morality, rules, and the dilemmas of law (Duke University Press, 2001)

Sherwin and Alexander criticize the fact/value distinction that the earlier approach insisted on, in accounting for permitted versus unpermitted changes. My book gives up that distinction, for many of the reasons advanced in this powerful critique.

Vicki C. Jackson, Holistic Interpretation: Fitzpatrick v. Bitzer and our Bifurcated Constitution, 53 Stan. L. Rev. 1259 (2001)

Jackson flags an important methodological blindness that translators are likely to engage — that they ignore the actual constitutional changes between the original text being translated and the current context. I agree that’s possible and an error. More should be done in the theory (and I’ve tried in the book) to emphasize both translation and synthesis.

John O. McGinnis and Michael B. Rappaport, Our supermajoritarian constitution, 80 Tex. L. Rev. 703 (2001)

McGinnis and Rappaport are concerned that translation gives judges too much latitude. I agree that in the abstract, it gives judges great latitude. The constraint on that latitude is the constraint of role. What’s theoretically powerful about relocating that constraint is that to the extent the political concerns become salient, they constrain; when they are not salient (because the political values are common) they do not.

Peter J. Spiro, Treaties, Executive Agreements, and Constitutional Method, 79 Tex. L. Rev. 961 (2001)

This piece helps show why the Erie-effect is an aspect of fidelity to role, not fidelity to meaning. It questions whether the dynamic supports the translation model. It doesn’t, as an aspect of fidelity to meaning. It does as an aspect on role.

G. Edward White, The Arrival of History in Constitutional Scholarship, 88 Va. L. Rev. 485 (2002)

In this very wise essay, White locates translation within a range of legal scholarship that embraces, and is driven by, history. The fields are obviously different as the purposes of the fields are different. As one of America’s most important historians, this account acknowledges the differences, while acknowledging the weakness from the perspective of history in the history of work such as the work behind translation.

Ben Glassman, Dialogic Fidelity: The Fourteenth Amendment, Historical Meaning, and Appropriate Scrutiny for Sex Discrimination, 18 Harv. Blackletter LJ 139 (2002)

Glassman smartly questions the use of context in translation theory, identifying two problems: “[1] treating text and context as separate entities and neatly identifying each precludes one from investigating how the text works and has worked with and on its contexts; [2] reference to context treats as a solution what ought to be investigated as a problem.” This is a fair criticism of the theory in application. But the most interesting part of Glassman’s analysis is his application of his more subtle account to sex and the 14th Amendment. Moving beyond a static one-step analysis of the original meaning of the 14th Amendment, Glassman shows how that original context took the separate spheres of social and political life for granted; but then as applied across time, that presupposition was rejected, most clearly in the 19th Amendment. Fidelity requires, as Glassman indicates, an elaboration of what “historical meaning is” — rendering the constitution vulnerable to these changes. His account is rich and a valuable addition. My only slight difference remains in the utility of separating these contextual constraints away from meaning and into constraint.

Nickolai G. Levin, Constitutional Statutory Synthesis, 54 Ala. L. Rev. 1281 (2002)

Levin usefully extends translation from constitutional to statutory interpretation. I did not follow the extension in the book, because the political presuppositions of the two contexts are so different. But the article is a useful example of the dynamic of doctrine.

Joseph Biancalana, Originalism and the commerce clause, 71 U. Cin. L. Rev. 71 383 (2002)

This article is critical of translation as it applies to federalism. As I read it, it felt as if the criticism was misdirected. If translation is offered as an account of an otherwise a-textual reading of the constitution (as I argue conservatives who have constrained the scope of Congress’s power have done), then the question is what the alternative account for the a-textualism is — other than infidelity.

Vicki C. Jackson, Holistic Interpretation, Comparative Constitutionalism, and Fissian Freedoms, 58 U. Miami L. Rev. 265 (2003)

As in her 2001 piece, Jackson argues for synthesis as methodologically prior to translation. I agree with this.

Cass, Ronald A. The rule of law in America (JHU Press, 2003)

Cass develops a generous account of “partnership model” of interpretation, within which he suggests translation fits. The book then develops an account of how these theories fit with the idea of the rule of law. The book is a powerful account of rule of law in general, translation theory specifically.

Caleb Nelson, Originalism and interpretive conventions, 70 U. Chi. L Rev 519, 590–94 (2003)

Nelson makes a valuable contribution by contrasting my account of meaning with the account offered by most originalists. His rendering helped constrain my account in the book. I don’t believe that the proper translation of an original text could “go beyond the rules that members of the founding generation actually understood the Constitution to establish.” Or at least, I don’t see this as flowing from fidelity to meaning. Fidelity to role might constrain the interpreter to results that are different from those presupposed in the framing context. But that flows not from a theory of meaning, but from a theory of institutional capacity.

Adrian Vermeule, Hume’s Second Best Constitutionalism, 70 U. Chi. L. Rev. 421 (2003)

In elucidating the concept of “second best constitutionalism,” Vermeule rightly describes how translation is consistent with the idea, though not entailed by it.

Cass Sunstein and Adrian Vermeule, Interpretation and Institutions, 101 Mich L. Rev. 885, 941 (2003)

This important account of the role institutions in interpretation was critical to the evolution of my own work. Sunstein and Vermeule say translation is “a valuable contribution to first-best theorizing about constitutional interpretation,” but that it is “insensitiv[e] to institutional considerations.” As I’ve developed the concept of constraint, or fidelity to role, my whole purpose has been to understand just how the constraints of institution account for the limitations within interpretation. Thus I agree with their claim that “the idea that judges should translate original structures by searching for offsetting constitutional adjustments is defective if unaccompanied by an account of judicial capacities.” Constraint is to be the companion.

Larry Kramer, On Finding (and Losing) Our Origins, 26 Harv. J.L. & Pub. Pol’y 95 (2003)

This piece powerfully critiques the idea that we could translate our problems for the framers to solve. I have come to agree with this criticism. As described elsewhere in this document, I believe the aim is not to find a way to tell them the problems we have, but a way to understand what commitments they made that can continue to be relevant to us.

Thomas E. Baker, Constitutional Theory in a Nutshell, 13 Wm. & Mary Bill Rts. J. 57 (2004)

Along with a range of other approaches, this piece nicely summarizes translation theory, at least circa 2000.

Ernest A. Young, Making Federalism Doctrine: Fidelity, Institutional Competence, and Compensating Adjustments, 46 Wm. & Mary L. Rev. 1733 (2004)

Ernie Young’s work has been especially influential to my own. I have discussed his understanding of Erie in the book. In this article, he develops a conception of institutional constraint and competence that mirrors my own. We both see the interpretive challenge to be constrained by institutional capacity. My own account is less subtle than he offers here.

Brian Baldrate, The Supreme Court’s Role in Defining the Jurisdiction of Military Tribunals: A Study, Critique, & (and) Proposal for Hamdan v. Rumsfeld, 186 Mil. L. Rev. 1 (2005)

Baldrate extends translation to the context of cases involving the military. He rightly insists the technique is not new, but quite old, and he powerfully demonstrates how it might illuminate the dynamic of the Court’s earlier military cases, in different military contexts. Translation, Baldrate writes, allows the court to “balance the political branches’ need to accomplish a military mission with the Constitution’s mandate that federal criminal trials be heard in constitutional courts. Most importantly, consistent application of translation theory over time will help the Court develop a coherent, rational, and principled distinction between federal courts and military tribunals.”

Peter Smith, Federalism, Instrumentalism, and the Legacy of the Rehnquist Court, 74 Geo. Wash. L. Rev. 906 (2005)

Peter Smith builds upon the account of cycling that I describe in the history of federalism, and extends it beyond Lopez. While he finds the account “normatively” satisfying, it does not, he suggests (rightly) account for the “schizophrenic pattern” of the cases. This is fair, though perhaps the Court’s own recognition of its own pattern might allow it to present its development in less “schizophrenic” terms.

Adrian Vermeule, Judging under uncertainty: an institutional theory of legal interpretation (Harvard University Press, 2006)

One of the books from the modern canon of interpretive theory, Vermeule ranges broadly and brilliantly. He criticizes translation as being insufficiently sensitive to institutional capacity. The book tries hard to up institutional sensitivity, by separating the institutional dimension (fidelity to role) from the interpretive (fidelity to meaning).

Curtis A. Bradley, David H. Moore, and Jack L. Goldsmith, Sosa, Customary International Law, and the Continuing Relevance of Erie, 120 Harv. L. Rev. 869 (2007)

Bradley , Moore and Goldsmith offer an account of translation in their account of customary international law. I discuss their approach in the book.

Lawrence B. Solum, Semantic originalism, Illinois Public Law Research Paper №07–24 (2008)

Professor Solum nicely unpacks the implicit theory of meaning within the fidelity to meaning branch of the theory I’ve articulated. As he describes, “to make sense of Lessig’s argument, we need to assume that he means that the applicative meaning of text in the context of application must be consistent with the semantic meaning of the text in the context of utterance.” This is indeed the sense in which translation operates — or at least, translation within the context of normative texts.

Lawrence G. Sager, Justice in Plainclothes: a theory of American constitutional practice (Yale University Press, 2008)

Sager describes an accommodation or reaction to originalism that he names “reluctant judgment theory.” He fits translation within this account, along with Ackerman’s approach. What ties the two together, Sager argues, is “a basal, unmitigated commitment to agency in principle, coupled with the discovery that pure or complete agency is impossible.” That’s a fair description of the motivation for translation. He concludes that reluctant judgment theories are better than more traditional originalist theories, but only relatively: they still, he insists, suffer from the same “objections that greet their more extreme conceptual cousins.” Those problems stem, Sager insists, from the liberty demanding parts of the constitution, which negate the instruction-taking role of courts. I like the world Sager’s theory would construct; I wish it were this world.

John F. Manning, Federalism and the Generality Problem in Constitutional Interpretation, 122 Harv. L. Rev. 122 2003 (2008)

Dean Manning describes the account of fidelity to meaning as applied to federalism. He then offers two reasons for “hesitation” before federalists might embrace it. First, he suggests it “presupposes a discernable state-federal balance to be restored.” Second, “the effort to return to a hypothetical balance begs the question of whether the underlying bargain itself left room for the accommodations of legal or factual developments that the founders did not contemplate.” These are helpful questions that helped me sharpen the point. I don’t think we need to know the “state-federal” balance to justify the effort at translation. We need only recognize that the current balance is, relative to the framing, out of balance. The Court will never craft tools that get us anywhere close to the original or “discernable” balance; it could only get is somewhat closer. And second, I don’t believe the meta-intent of the framers actually matters much to the project of interpretive fidelity. No doubt, the practice should be different with statutes and constitutions — especially effectively unamendable constitutions. Manning is right that the Court has not articulated translation in its account of the modern constraints that it has constructed. That suggests both fidelity and constraint operate as as-if accounts.

Joel M. Ngugi, Forgetting Lochner in the Journey from Plan to Market: The Framing Effect of the Market Rhetoric in Market-Oriented Reforms, 56 Buff. L. Rev. 1 (2008)

This piece develops the fidelity to meaning understanding of the changes circa the New Deal, consistent with my early writing. But as the book argues, the better way to understand those changes is through fidelity to role.

Richard Posner, Law and Literature (3d edition 2009)

Posner describes faithfully and skeptically the theory of translation, arguing that the literary translator is authorized to change text for reasons that don’t apply to the judicial translator. Maybe. Or maybe the judicial translator should be understood to be so authorized.

Richard Posner, The Problematics of Moral and Legal Theory (2009)

Posner describes translation as “turning the tables” of originalists like Scalia.

Jack M. Balkin, Framework Originalism and the Living Constitution, 103 Nw. UL Rev. 103 549 (2009)

This article develops the contrast between Balkin’s conception of living originalism, and translation. I have responded directly to the account in his masterful book.

Kenneth S. Klein, Is Ashcroft v. Iqbal the Death (Finally) of the Historical Test for Interpreting the Seventh Amendment, 88 Neb. L. Rev. 88 467 (2009)

This is brilliantly subtle effort at translating the Seventh Amendment’s concept of the “common law,” in light of the merger of law and equity. It is a perfect application of the theory, because it reveals the need to accommodate a constitutional commitment in light of changes themselves not ratified. Once law and equity merged, the appropriate scope for “common law” changed. In light of that change, “to be true to the intent of broadly giving citizens a role in the courts through the institution of civil juries, ‘common law’ ideally would have been understood to mean anything not in the sphere of chancery court responsibility, rather than that which was within the sphere of common law court responsibility.”

Ryan C. Williams, The one and only substantive due process clause, 120 Yale Law Journal 408 (2010)

Williams develops a powerful account of the different meaning of the identically phrased “due process” clause in the 5th and 14th Amendment. That difference conflicts, he suggests, with the holism of fidelity theory — an approach which, as he argues, acts (at least) as if “the entire Constitution, including later amendments, had been set forth by a single author or single group of authors sharing a common, mutually understood purpose and vocabulary.” I accept his historical account but don’t think it is necessarily inconsistent with fidelity. The scope of “privileges and/or immunities” has been recognized as shifting relative to the possession of a gun, for example — Amar believing it not clear at the founding but increasingly clear by the Civil War. Williams’ account could thus easily provide source material for a more subtle account of due process without undermining the holism of synthetic fidelity.

David Chang, Beyond Formalist Sovereignty: Who Can Represent We the People of the United States Today, 45 U. Rich. L. Rev. 549 (2010)

Chang offers perhaps the most extensive elucidation of translation theory in the literature. His reading is careful and complete, and helped convince me (as McKinley’s did) that the categorical parsing of changes was not helpful. I had, for example, argued in the face of “potentially changed normative presuppositions” “that accounting for such changes is illegitimate for interpretive translation.” As the theory has developed, their “appropriateness” will be tied more to constraint that fidelity to meaning. The difference between Chang (and Klarman’s implied) approach and mine is not that I believe the updated normative view is something we “would” accept if we were asked; I believe instead it is about preserving institutional role.

Michael Steven Green, Erie’s Suppressed Premise, 95 Minn. L. Rev. 95 1111 (2010)

Green offers a powerfully adept philosophical account of the theories that are consistent with the doctrine Erie rejected, rejecting the idea that Erie depends upon those doctrines. I address the place of philosophy in this cultural account in the book, discussing both Green and Goldsmith/Walt.

Maggie McKinley, Plenary No Longer: How the Fourteenth Amendment Amended Congressional Jurisdiction-Stripping Power, 63 Stan. L. Rev. 1213 (2010)

In this article, Professor (McKinley) Blackhawk usefully links translation theory to pragmatics, and identifies the common weakness/struggle in both: the effort to define a usefully precise conception of “context.” She clarifies the analysis by building more directly on the theory of pragmatics. Her account is convincing in its critique of the precise parsing of context that the original work tried to make. The book backs away from that parsing.

Jack M. Balkin, Living Originalism (Harvard University Press, 2011)

I’ve described Balkin’s important book extensively in the book.

David Chang, Beyond Formalist Sovereignty: Who Can Represent “We The People Of The United States” Today?, 45 U. Rich. L. Rev. 549 (2011)

Chang offers a subtle account of the continuing force of founding commitments in a range of contexts, applying faithfully the account of translation I had offered earlier. That account, I have come to see, was too cumbersome in separating facts from moral presuppositions. Some of the problems illuminated in this piece explain the move away from that distinction in the book.

Orin S. Kerr, An equilibrium-adjustment theory of the Fourth Amendment, 125 Harv. L. Rev. 476 (2011)

Kerr rightly concludes that his “equilibrium adjustment model” for the Fourth Amendment is consistent with the translation.

Alexander I. Platt, Preserving the Appointments Safety Valve, 30 Yale L. & Pol’y Rev. 255 (2011)

Platt nicely extends the question of the relevant context for purposes of translation to include the governmental context as well. He argues for a translated understanding of the appointment power, to match the reach of the removal power. This is a rich extension of the approach, grounded on the critical point: “Under the translation model, principles crystallized in text create a strong justification for judicial creativity in the name of preserving those principles.”

James E. Ryan, Laying Claim to the Constitution: The Promise of New Textualism, 97 Virginia Law Review 1523 (2011)

Ryan summarizes “translation” as an example of progressive constitutionalism. The summary is fair, though grounded in the first half of the theory I’ve offered in the book. It not clear, however, the sense in which a theory is “progressive.” A faithful reading should be as progressive as the constitution itself, properly translated, subject to the constraints of role.

James Fleming, Are We all Originalists Now: I Hope Not, 91 Tex. L. Rev. 1785 (2012)

Jim Fleming is a prolific and compelling critic of originalism. In this article, he insists that translation is not a form of originalism. I agree it is not a form politically — in the sense that its answers are not correlated with the politics of most originalists. But the article does help crystalize a perhaps “Borkish” thought (as he charges me): That fidelity in our tradition is about accounting for the source of values, and that values unsourced to political texts are not within the scope of fidelity to meaning.

Lawrence Rosenthal, Originalism in Practice, 87 Ind. LJ 1183 (2012)

Rosenthal provides a careful account of translation, concluding nonetheless that it is “non-originalism.” The gap between translation and originalism is opened up because he sees translation as allowing that “as long as someone can think of a good reason for [change] means that adjudication is ultimately based not on historical evidence of original meaning, but rather on a nonoriginalist consideration of whether framing- era practices and understandings have become obsolete.” But translation is more than an advocacy tool, and what one “can think of” is not sufficient for change under the account I’ve offered, at least in the book. Conceptual plasticity is given. The question is only (and ever) how much space the present context gives.

Franita Tolson, Benign Partisanship, 88 Notre Dame L. Rev. 395 (2012)

This article nicely builds upon the constraint of role in predicting how the Court will need to reckon partisan gerrymandering. “In order to do so, the Court has to assess the broader implications of this federalism benefit and how it affects the Court’s resolution of issues that emerge in substantive areas that have some impact on congressional redistricting.” As she argues, “this approach is preferable to constructing a new cause of action that will ignore the benefits of gerrymandering and is unlikely to capture the harm”

Brian T. Fitzpatrick, The Constitutionality of Federal Jurisdiction-Stripping Legislation and the History of State Judicial Selection and Tenure, 98 Va. L. Rev. 839 (2012)

This powerful article by Fitzpatrick rightly insists that translation offers value to both original expectation theorists, and original public meaning theorists — both need an account of context. He also rightly insists that “[p]roperly understood, translation is an originalist-friendly method to account for changed circumstances in constitutional interpretation.” Finally, he rightly insists that resistance to translation among originalists links to the weakness of the perceived constraint of translation on the willfulness of judges. That’s true, and accounts for the constraint of role.

Kevin G. Welner, Scholars as policy actors: Research, public discourse, and the zone of judicial constraints, 49.1 American Educational Research Journal 7 (2012)

Welner builds on translation theory to understand the ways in which shifting social facts help explain and drive changes in judicial interpretation. As he writes, Courts “can be expected only to protect rights within bounds shaped largely by popular and political opinion.” The challenge that this important work addresses is how best to carry the understanding of social science to this judicial frame. I determined not to accept the invitation of this article for the book, but I agree that this account is critically necessary, and not just for translation theory.

Helen Hershkoff, The Michigan Constitution, Judicial Rulemaking, and Erie-Effects on State Governance, 60 Wayne L. Rev. 117 (2014)

This piece builds on the idea of the Erie-effect to analyze the evolution of Michigan rulemaking authority. Not directly relevant to the US Constitution but a powerful application of the idea behind the Erie-effect doctrine.

Paul Horwitz, The Hobby Lobby Moment, 128 Harv. L. Rev. 154 (2014)

This wonderful account of the Hobby Lobby decision applies translation theory to explain the shifting Court doctrine. The movement of accommodation from an uncontested to a contested sphere forces the Court, Horwitz argues, to shift its understanding. I don’t touch the Religion Clauses of the First Amendment in the book. But this piece would have been at the center had I done so.

Yvette Joy Liebesman, Redefining the Intended Copyright Infringer, 50 Akron L. Rev. 765 (2016)

The brilliant article is the perfect Lessig-remix: Applying translation theory to the copyright act. Liebesman translates the Copyright Act to account for the changing presuppositions about who the targeted infringer for the Act was, given the changes in digital technology. The piece is beyond the scope of the book, but a brilliant application of the idea of translation.

Steven Semeraro, Interpreting the Constitution’s Elegant Specificities, 65 Buff. L. Rev. 547 (2017)

Semararo nicely contrasts his account of “farsighted originalism” with “two-step” translation. In the account he was critiquing, the two-step translator imports modern conceptions to the founding generation, to ask how they would react. Semararo’s approach looks to the range of possible original meanings to select the one for the moment. The book is less convinced than my early writing that time travel interpretation is possible. Klarman and others have convinced me that the key is not to try to gain founding credibility by asking how Madison would think about cell phones. But that does not eliminate the translation enterprise: given their commitments and some relevant change, “what is the best translation” can stand independent from “what would they have done.”

Leah A. Hamlin, Qualified Tenure: Presidential Removal of the FBI Director, 44 Ohio N.U. L. Rev. 55 (2018)

In this insightful essay, Leah Hamlin builds upon the translation account of the executive to explore whether the President’s power to remove the FBI director could be constrained.

Andrew Coan, Rationing the Constitution: How Judicial Capacity Shapes Supreme Court Decision-Making (2019)

This book by the brilliant Andrew Coan threatens to undermine everything I’ve said. But it came out after I completed Fidelity and Constraint so I’ve not had the chance to determine whether it has or has not.

Gil Seinfeld, Neglecting Nationalism, 21 University of Pennsylvania Journal of Constitutional Law 659 (2019)

Seinfeld criticizes my and Young’s effort at translating federalism, by arguing that the account ignores the amendments to the Constitution since founding — specifically the 16th, 17th and Reconstruction Amendments. But it’s not quite clear what the foundation for this criticism would be. No doubt, the Court could have interpreted the Civil War and later amendments to be radical (as opposed to important) changes to the federalism balance. That was the question in Slaughterhouse; that position the Court rejected — there, and later. And certainly, the 16th and 17th could have been read generatively, to reject the framing federalism balance. But given they were not, it is not clear how my account of the federalism balance is missing something. Certainly I (and Young) aren’t offering an account of federalism given how the Constitution could have been read. Given I am not a federalist, I certainly wish the Constitution were read as Seinfeld reads it. Wishes are just that. I don’t think ignoring those possibilities reflects a “lack of imagination as to the possibility of its further development.” It reflects the reality of the actual development.