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Stanford Law Review


In this article, Professor Lessig proposes a theory to explain how new readings of the Constitution may maintain fidelity with past understandings of the document's meaning and purpose. After defining schematically some terminology for this exercise in "fidelity theory," the author proposes a general typology of four justifications for changed constitutional readings: amendment, synthesis, fact translation, and structural translation. Describing this last justification as so far overlooked, he illustrates, by way of four historical case studies, how structural translation results from a pragmatic institutional response by judges to subtle changes in interpretive context-changes both in what Professor Lessig calls the "uncontested" or background discourses of the larger society and, through what he labels the "Erie effect," shifts in law's understanding of its own genesis and nature. In the face of such change, Professor Lessig argues, legal actors maintain interpretive fidelity only by adapting old readings to new social reality. In Part II of the article, Professor Lessig describes the fact and structural translations he argues underlie the signal constitutional change of modern times, the New Deal He considers and rejects the notions that the New Deal was unconstitutional, that it restored first principles that had been lost, that the New Deal was itself a constitutional "amendment, " and that it flowed logically from the collapse of laissez-faire theory. Rather, he argues, the New Deal represents translation, both of fact economic discourse-and of structure-understandings of the political basis of law. The effects of such contextual changes, Professor Lessig contends, are both unavoidable and consistent with fidelity.

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Supported by the Sarah Scaife Foundation and the Russell Baker Scholars Fund

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