Balkinization: The Greatest Constitutional Protestant of the Twenty-First Century

The Greatest Constitutional Protestant of the Twenty-First Century

Richard Primus

So far, anyway.

For the last ten years or so, I’ve had a framed New Yorker cartoon on the outside of my office door. It’s a courtroom scene, with a man sitting on the witness stand, being cross-examined by a lawyer. The witness is speaking. The caption reads as follows: “As a matter of fact, I have read the Constitution, and, frankly, I don’t get it.”

I love that cartoon for more than one reason. One is the way the joke deflates the implicit grandstanding of the cross-examining lawyer, who has presumably just thundered “Have you read the Constitution?” at the witness. I’ve also thought that putting that cartoon on my door might be a hospitable gesture toward introductory students, who might be coming to my office because of their own feeling of not getting something. But there’s also a deeper reason why I’ve had an affinity for that cartoon, a reason tied to a point about constitutional theory. The witness is speaking an important truth, though perhaps not consciously: reading the Constitution is not, in fact, the best way to get it. That’s not to say that reading the Constitution isn’t important. Of course it is—it’s hard to have a good grasp of constitutional law without reading the Constitution. But constitutional law is a great deal more than, and sometimes in tension with, the text of the Constitution. So if you read the Constitution and stopped there, you probably wouldn’t get it.

In Sandy Levinson’s wonderful typology of Protestant and Catholic constitutionalism, that

perspective makes me a Constitutional Catholic, at least on the first of Levinson’s two questions. For the sake of quick review: Levinson’s first question is “What is the Constitution?” The Protestant answer is “A document,” and the Catholic answer is “That document, and also a broad apparatus of practices and traditions and received understandings about American government.” Levinson’s second question is “Who is authorized to interpret the Constitution?”, and the Protestant and Catholic answers are, respectively, “Anyone who can read,” and “Only those who have been specifically authorized to do so,” the latter answer coming down essentially to the federal judiciary acting as a priesthood.

I largely agree with Jack Balkin’s suggestion that Catholicism and Protestantism in Levinson’s system can profitably be understood as a nested opposition rather than a strict dichotomy—but that’s beside the point for the moment. For the moment, I’ll say that I’m a Catholic on Question 1, albeit a Catholic who thinks it’s important to be attuned to the way that all those things that “aren’t” the document shape our understanding of what the document means, such that the boundary between what “is” and “isn’t” in the text is not always straightforward. Both in my writing and in my teaching, I try to draw attention to the limits of the text and the role of other sources of constitutional authority. To make the point that just reading the Constitution, though important, isn’t enough.

That said, I also try to make sure that my students understand the power of Constitutional Protestantism. If you’re trying to win a case in court, or a cause in politics or in the broader public discourse, you’re often well advised to present the Constitution—the document—as plainly on your side.

This summer, we all met the man whom I regard as the greatest Constitutional Protestant of our time: Khizr Khan. He played the part perfectly, on both of Levinson’s questions. Khan brandished his copy of the Constitution—the physical document—the way a Bible-thumping preacher brandishes his sacred text, like a magical artifact with the power to ward off evil. And the power of Khan’s rhetorical question to Donald Trump—“Have you even read the U.S. Constitution?”—lies in the idea that anyone who reads the thing will understand plainly what it means.

It will have been lost on nobody, of course, that Khan’s line at the Democratic National Convention--"Have you even read the Constitution"--is also the cross-examining lawyer’s line in my New Yorker cartoon. But that lawyer is the butt of the joke, and Khan should be understood—I say this without hyperbole or irony—as a hero of the Republic.

My Catholic law-professor brain saw in Khan’s speech what it usually sees in the best performances of Constitutional Protestantism: conviction, and strength, and also some corner-cutting, at least as measured by a certain set of standards that I would apply to speech or writing in an academic space. After Khan asked if Trump had even read the Constitution, and offered to lend Trump his copy, Khan went on to direct Trump to look for the words “liberty” and “equal protection of law.” Those words are in the Constitution, of course. But I’d be disappointed in any of my students who did not recognize, at the end of an introductory course, that Khan has not made his case against Trump merely by pointing out that those words are in the document. It’s not clear from the text of the Constitution what “liberty” means, as applicable to a conflict between Khan and Trump. And even the most awful of Trump’s suggestions about immigration policy or banning Muslims from entering the United States might not contravene anything the text of the Constitution says about “equal protection of [the] law[s],” if only (and perhaps not only) because those words are addressed, as a textual matter, to state governments rather than to the federal government. To see why Trump’s policy prescriptions here are flagrantly unconstitutional, which they are, one needs to do more than read the text of the Constitution.

But to scold Khan for those reasons might be to practice a sort of Catholicism that justifies a Reformation. Or, put more soberly: It might be the case that there are times and places for Constitutional Catholicism and times and places for Constitutional Protestantism, or that there are different roles in which these different approaches are appropriate. A speech at a political convention is neither an article in a law review nor a class at a law school. And the summer of 2016 might be a moment for Protestantism in the name of—well, of liberty, and equal protection of the law. And the Constitution.

I’ve taken the New Yorker cartoon down from my door. Maybe in better times I will put it up again.

Posted 5:06 PM by Richard Primus [link]