Texas Law Review
Readings of the Constitution have changed. Sometimes they have changed because the constitutional text has changed. But more often they have changed while the text has remained the same. Can it be that these changed readings-changes that track no change in constitutional text-can nonetheless be readings of fidelity, faithful to the Constitution's original meaning? On some readings of originalism, the answer must be no. But this essay argues that any complete account of interpretive fidelity must allow--indeed require--changes in constitutional readings even when there has been no change in the constitutional text. If meaning is a function of both text and context, the claim made here is that fidelity in interpretation must accommodate changes in both. Drawing on the interpretive practice of translation, the author models an argument of interpretive fidelity that tracks changes in the background context, justifying changed readings as necessary translations to preserve constitutional meaning in different interpretive contexts. Using this model, the author then examines ten examples of changed readings unsupported by changes in text and argues that these may best be understood, through the device of translation, as arguments based in fidelity. Finally, the author points to limitations on a practice of fidelity as translation present in the practice of literary translation itself. These suggest a practice of translation in law that would not be as radical as first impressions may. suggest, and indeed, may be required to understand some of the most significant moments in American constitutional history.
Lawrence Lessig, "Fidelity in Translation," 71 Texas Law Review 1165 (1993).