an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman marty.lederman at comcast.net
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Protestant Constitutionalism: A Series of Footnotes to Sanford Levinson
I can think of no better way to celebrate Constitution Day this year than to publish this little essay written in honor of my dear friend Sandy Levinson, on the occasion of the Lifetime Achievement Award he received from the Law and Courts section at the American Political Science Association convention on September 3rd. Protestant Constitutionalism: A Series of Footnotes to Sandy Levinson
Alfred North Whitehead once said that philosophy is a series of footnotes to Plato. There is a pretty good argument that modern American constitutional theory is a series of footnotes to Sandy Levinson. Examine the many issues roiling constitutional law faculties today, and you will discover that Sandy discussed them years before they became popular. The Second Amendment? Sandy explained why liberals needed to take it seriously back in 1989. Torture and national security? Presidential dictatorship? Constitutional amendments outside of Article V? Sandy focused on all of these ideas before they were widely taken up.
Wall Street investors are divided into two categories: growth investors, who chase the currently hot stocks, and value investors, who look for beaten-down issues that nobody wants but that may do better in the future. Sandy Levinson is perhaps the greatest intellectual value investor in the American legal academy. He is the Warren Buffett of investing in ideas about constitutional law. Every time Sandy discovered a new obsession, whether it be guns, or torture, or our defective Constitution, it was time to buy stock in it, because you could be certain that everyone else would end up talking about it, sometimes ten to twenty years later. Time after time, Sandy has been there first, buying low and selling high.
One of Sandy's most fruitful ideas is constitutional protestantism, the idea that each citizen has the right to decide for him or herself what the Constitution means. Sandy stated this idea prominently in an article in the Tulane Law Review in 1987, noting the importance of Attorney General Edwin Meese's arguments that the decisions of the Supreme Court bind only the parties before the court. Sandy offered these views in the middle of the 1980s, at a time, I should point out, when few liberal constitutional scholars wanted anything to do with Edwin Meese.
The idea is developed more fully in Sandy's great 1988 book, Constitutional Faith, in which he distinguishes between constitutional protestantism and constitutional catholicism. Constitutional catholicism stands for the view that a certain group of professional or learned authorities has the last word on interpretation, while protestantism, as we have seen, invites all believers to offer their views on the meaning of scripture. Sandy gives both positions their due, but he is essentially a constitutional protestant. Just as protestant believers must figure out what the Bible means for themselves in order to achieve salvation, so too individual members of the political community must decide for themselves what the Constitution means in order to go forward with the constitutional project.
Many of the big trends and movements in modern American constitutional theory flow from the idea of constitutional protestantism. Sandy’s book anticipates Mark Tushnet's populist constitutionalism, developed in his 1999 book, Taking the Constitution Away from the Courts, popular constitutionalism, articulated in Larry Kramer's important 2004 history, The People Themselves: Popular Constitutionalism and Judicial Review, and a wide range of people writing in the genre of what is now called "the Constitution outside the courts."
Protestant constitutionalism leads almost inevitably to the study of social organization and culture. Once you acknowledge that many individuals have different views about the Constitution, you must also acknowledge that these individuals, like good protestants, do not simply keep to themselves. They create congregations. They form groups of like-minded believers and go out into the world and try to convert others. Thus, a focus on protestant constitutionalism leads naturally to a focus on social movements and political parties as engines of constitutional change. Thus many scholars, like my colleague Reva Siegel, have emphasized how constitutional meaning gets produced by successive mobilizations and counter-mobilizations of groups in civil society. The idea of a community of protestant constitutionalists eventually leads to the notion of a constitutional culture, as described by my colleague and dean, Robert Post; and to Post and Siegel's idea of a democratic constitutionalism.
The work of the judiciary looks quite different from this perspective. We interpret what judges do in terms of their relationship to shifts in constitutional culture, to the work of political parties, and to the evolution of popular ideas about the Constitution. We find similar ideas in Levinson's and my theory of partisan entrenchment, in Barry Friedman's recent history of the Supreme Court, The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution (2009), and in Scot Powe’s two great legal realist histories, The Warren Court in American Politics (2000) and The Supreme Court and the American Elite (2009).
Each of these approaches are branches on the tree of protestant constitutionalism; and each has something else in common: Liberal academics offered them as a way of articulating the idea of a living Constitution in a way quite different from the living constitutionalism of earlier scholars. In the work of the previous generation, symbolized by scholars like Laurence Tribe or Owen Fiss, living constitutionalism is largely the product of legal professionals-- lawyers, scholars, and members of the federal judiciary--who work out and develop the meaning of doctrinal ideas and public values. Through their efforts--in litigation, scholarship and judicial decision--the Constitution progresses and stays in touch with the times.
By contrast, the next generation of living constitutionalists, influenced by various versions of protestant constitutionalism, argued that the views of ordinary citizens, social movements, and political parties were the drivers of constitutional change. Thus, Sandy's idea of protestant constitutionalism, announced in the 1980s, was the forerunner of most of the modern strands of living constitutionalism today.
The other major trend in constitutional theory today is originalism. Sandy is not himself an originalist, and I have no reason to believe that he strongly influenced modern conservative originalism. Nevertheless, the idea of a protestant constitutionalism sheds important light on the modern conservative movement's embrace of originalist rhetoric.
One important consequence of a protestant theology is schism. Once individuals get to decide for themselves what the Bible means, they reject centralized authority and split off into different sects and groups. The most obvious symbol of centralized interpretive authority is the United States Supreme Court. Ed Meese, of course, was only one of many modern conservatives who rejected judicial authority, and for decades now, the conservative movement has pitted itself against federal judges and particularly the "liberal activist" Supreme Court, even when that Court was stocked almost entirely by appointees of Republican Presidents.
Protestant constitutionalism also suggests the tropes of restoration and return, which is a familiar theme of political conservative ideas about the Constitution; today's Tea Parties are only the most recent example.
A final feature of protestant constitutionalism is textualism. One restores or redeems the real Constitution by returning to the constitutional text. Not surprisingly, many conservative originalists have also been textualists; so too was the great liberal originalist of an earlier generation, Hugo Black. This is also the reason why I became an originalist beginning in 2005. I am a protestant constitutionalist, and ultimately I became convinced that the interpretive theory that best captured my views about constitutional change was a textualist theory, one that offered the text’s original meaning as a framework for constitutional redemption.
Because constitutional protestantism leads to perpetual calls for return, restoration and redemption among different groups, all of whom disagree with each other, their various mobilizations lead to constitutional change. Mobilized social movements, sure of what the Constitution means, and seeking to restore it to match their political vision, often change its practical meaning over time. Thus modern conservative originalism—the constitutional theory embraced by the conservative movement—is yet another form of living constitutionalism, although, to be sure, it does not understand itself in this way.
Thus, the idea of protestant constitutionalism helps us understand both modern liberal living constitutionalism and modern conservative originalism. It is indeed a most powerful idea.
One reason why protestant constitutionalism develops this way in the United States is that, as Stephen Griffin has pointed out, the Constitution is ultimately self-enforcing. It relies on different actors, with different interests and values checking each other. If other people aren't doing things the way you want them to do it, you will insist that they do things your way; that is, you will engage in schism and demand return, restoration and redemption of the true Constitution. Thus, a self-enforcing Constitution produces a wide variety of forms of protestant constitutionalism.
In sum, a self-enforcing Constitution in a political culture like that of the United States will likely produce (1) perpetual constitutional dissensus, and thus various forms of protestant constitutionalism on the left and the right; (2) perpetual changes in the Constitution-in-practice caused by mobilizations and counter-mobilizations, and thus various forms of living constitutionalism; and (3) perpetual calls by various parties to return, restore and redeem the Constitution, and thus various forms of originalism.
Finally, protestant constitutionalism, like its namesake, Christian Protestantism, is a form of faith. Sandy called his 1989 book Constitutional Faith, an allusion to Hugo Black's 1968 book, A Constitutional Faith. Justice Black’s title, "A Constitutional Faith," singled out one faith as the true faith, whereas Sandy is far more agnostic, suggesting that perhaps there are many different forms of constitutional faith.
A person’s constitutional faith is what he or she believes about the Constitution. For example, like the abolitionist Frederick Douglass, you might identify the Constitution with its text, and believe that the text should always be interpreted in its best light. Hugo Black's constitutional faith was faith in a written Constitution authored by the framers that protected We the People's liberties. Both of these are protestant ideas. In fact, the text serves many functions in people’s constitutional faith: The text is a symbol of popular sovereignty, a symbol of a Constitution that belongs to We the People and not to the judges. The text is also a powerful and convenient symbol of what you seek to restore or redeem.
In the last chapter of Constitutional Faith, Sandy asks whether or not he should sign a copy of the 1787 Constitution (i.e., one without the Bill of Rights or the Reconstruction Amendments) at a bicentennial exhibit in Philadelphia. Ultimately he decides to sign the document, but he does not sign because he has any faith in the text. Rather, he signs it because he has faith in what he calls an ongoing conversation about the Constitution and politics that the American constitutional project makes possible. Sandy assumes, like a good Rortyian, (as he said in his 1982 essay, Law as Literature), that you can take the text and beat it into any shape you want. What's really important, then, is not the content of the text; it is the development of the conversation.
By 2006, in his book Our Undemocratic Constitution: Where the Constitution Goes Wrong (And How We the People Can Correct It), Sandy has become a born-again textualist. And, ironically, his textualism causes him to lose his faith. He has lost faith in the Constitution because he believes that the hard-wired features of the Constitution, imposed by and controlled by the text, are bad for democracy. But has he lost faith altogether? No, Sandy is a man of faith, whether or not he believes in God. What, then, does he believe in?
I think Sandy believes in what he has always believed in. Sandy is a people person: He believes in people, both individually and collectively. He believes in the American people. That's why Sandy thinks it is a good idea for Americans to have a new constitutional convention. Together We the People will produce a better constitution. Sandy doesn't believe this because the Constitution as it exists is particularly good. Rather, it must be because he believes that the people are good. People will do the right thing if you give them the opportunity. (Although he would be amused at the comparison, this makes Sandy a little like Sarah Palin. Like Palin, he believes in the "real" America, and what real Americans can do if we give them the chance.)
I for one feel good knowing that Sandy has such faith in us, individually and collectively. Perhaps many constitutional scholars, in these troubled, times, full of anger and unrest, demagoguery and outright stupidity in public life, have lost faith in the American people. But Sandy Levinson has not. He believes--to quote those immortal poets, the Who--that the kids are alright: that the American people, despite their disagreements, will find the right path, and that things will ultimately work out ok.
In the meantime, Sandy, everyone in the academy is waiting for the next thing you will write about because it is what we will be writing about ten or twenty years from now. And I know as well that I speak for all of your many friends and colleagues when I wish you a thousand years of love, happiness and scholarship. Perhaps in such a wish we might hope to return to you just a little of what you have given each of us, with wisdom, grace and good humor, year after year, in abundance. Posted
by JB [link]