Recentering Concerns about Uneven Enforcement of Criminal Laws

David Super

      As I am not on this blog for sophisticated constitutional analysis, I will leave that to my colleagues whose talents lie in that area.  I do, however, want to comment on another case that keeps coming back to me during the requiem for Roe v. Wade.

     This case was decided half a year before Roe.  It was quite sickly from the beginning, in marked contrast to Roe’s impressive seven-justice majority.  It survived only four years, and the principles it sought to vindicate have been seriously eclipsed in the years since.  The case is Furman v. Georgia, which struck down capital punishment as cruel and unusual punishment in violation of the Eighth and Fourteenth Amendments.

While Our Minds were Elsewhere

Mark Graber

An obscure dissent by Justice Clarence Thomas may be nearly as disturbing for the future of judicial review as the dismal line of decisions on the merits this past week.  The case was Coral Ridge Ministries Media, Inc v. Southern Poverty Law Center.  The issue was whether the Southern Poverty Law Center had the legal right to describe Coral Ridge as a ‘hate group” because that group condemned same-sex marriage and homosexuality.  Two lower federal courts said this was an obvious exercise of free speech rights.  Thomas disagreed.

That Thomas would overrule New York Times v. Sullivan (1964), a case which requires persons suing public figures for defamation to prove falsehood and actual malice, is not disturbing, standing alone.  Most constitutional democracies have looser requirements for proving libel than the United States and those regimes seem about as democratic as the United States.  Thomas’s timing may be suspect.  As is true of much of the Thomas oeuvre, he discovers historical objections to practices at about the time conservatives raise political objections to practices.  Donald Trump complains of being libeled and, lo and behold, Thomas tells us that he never realized before that American libel law was inconsistent with history (unsurprisingly, the story is far more complicated).

The more disturbing problem is what speech Thomas thinks is not protected.  He excoriates the South Poverty Law Center for “lump[ing]” Coral Ridge's Christian ministry with groups like the Ku Klux Klan and Neo-Nazis."  Apparently, this is a falsehood.  If, however, you believe persons have a fundamental right to choose their intimate and marriage partners, Coral Ridge starts to resemble the Ku Klux Klan and Neo-Nazis.  That Coral Ridge, as Thomas points out, claims they love homosexuals but not homosexuality is hardly dispositive.  A great many members of religious hate groups claim to love Jews who convert to Christianity, just not their Jewishness.  One wonders why Thomas has nothing to say about pro-life advocates who call doctors who perform abortions “murderers.”  The one is no more false than the other.

A great many people have pointed out that the Court’s solicitude for religion is limited to conservative religions.  Jews who have religious obligations to provide and seek abortions are not likely to be treated as well as Christians who have religious objections to vaccines.  Now we learn conservatives are preparing the rest of the First Amendment to be a shield for conservatives and a sword against liberals.  While Thomas's first amendment may not protect the right to hime and Samuel Alito bigots for their views on women and sexuality, right-wing radio is apparently the epitome of speech protected by the Constitution.  Stay tuned.

Roe as the new Lochner

Gerard N. Magliocca

I want to pose a pedagogical question in light of Dobbs. Is there still any reason to teach the liberty of contact cases in an introductory constitutional law course? (I only get one semester for everything, so I must choose wisely.)

The rationale for teaching these cases was clear until yesterday. They represented an example of an unenumerated constitutional right that emerged, was applied, and was then undone. Accordingly, looking at that doctrine was a useful counterpoint or contrast to the right of privacy. Now, though, you don't need to teach Lochner and West Coast Hotel to make that point. You can just use Roe, Casey, and Dobbs. 

Another point along these lines is that courts will probably no longer use Lochner as an anti-canonical example in the way that, say, Chief Justice Roberts did in his dissenting opinion in Obergefell. Roe will now be that example. If Lochner is not canon and is no longer meaningful anti-canon, then why teach it?

The Rule for Rights, Rewritten

Guest Blogger

Joseph Blass

A few weeks ago I wrote that Justice Alito’s leaked draft opinion in Dobbs changed the test courts use to determine whether an unenumerated right is protected under the doctrine of Substantive Due Process. Where previously, I wrote, Substantive Due Process protected rights that are “fundamental to our scheme of ordered liberty, or deeply rooted in this Nation’s history and tradition” (Timbs v. Indiana), Justice Alito’s opinion would only protect those rights that are “fundamental to our scheme of ordered liberty and deeply rooted in this Nation’s history and tradition” (emphasis added and internal quotations and citations omitted throughout).

Well, the decision in Dobbs has been released, and Justice Alito’s opinion for the majority is largely the same as the leaked draft opinion. But in a new Section responding to the joint dissent by Justices Breyer, Kagan, and Sotomayor, the majority opinion goes a step further. “[T]he established method of substantive-due-process analysis,” it declares, “requires that an unenumerated right be deeply rooted in this Nation’s history and tradition before it can be recognized as a component of the ‘liberty’ protected in the Due Process clause. . . . The dissent cannot establish that a right to abortion has ever been part of this Nation’s tradition.” That is: there will be no need to ask whether a right is fundamental to ordered liberty when we cannot find historical evidence for it in American tradition, because that is enough to complete the constitutional inquiry.

In their dissent, Justices Breyer, Kagan, and Sotomayor note the dangers of this new standard. “The lone rationale for what the majority does today,” they say, “is that the right to elect an abortion is not deeply rooted in history . . . . The same could be said, though, of most of the rights the majority claims it is not tampering with,” such as the rights to use contraception, to engage in same-sex sexual behavior, or to marry a same-sex partner.  If the Constitution only protects unenumerated rights that are grounded in American historical tradition, then “all rights that have no history stretching back to the mid-19th century are insecure.”

The hypothetical has become concrete. The dissenting Justices are not alone in fearing that Dobbs will lay the groundwork for further restrictions of Americans’ rights.

The Establishment Clause Has Been Dead For a Long Time

Guest Blogger

Stanley Fish

This week in Carson v. Makin,  the Supreme Court ruled that the state of Maine violated the Constitution when it banned the use of public funds to support children attending religious schools. Chief Justice Roberts, writing for the majority, declared that  the denial to religious parents of a benefit accorded to non-religious parents is clearly “a discrimination against religion.” In  dissent , Justice  Sonia Sotomayor warns that “Today the court leads us to a place where separation of Church and State becomes a constitutional violation. “ In fact we have been at that place ever since the first high profile Establishment Clause case , Everson v. Board of Education, was decided in 1947.  In Everson the Court considered a New Jersey statute authorizing the reimbursing of the funds spent by parents to bus their children to  parochial schools. On its face, this policy is a  clear violation of the Establishment clause which says, basically, that no act of government should  have the effect of turning the state into an instrument of religious purposes.  Using public monies to aid religious institutions has always been an example of the kind of activity the clause forbids. Here is James Madison making just that point in 1785: No citizen should be compelled to “contribute  three pence only of his property for the support” of any religious establishment. Even so small an amount should provoke “alarm at the first experiment on our liberties.”

LevinsonFest on Law, Literature, and Other Performing Arts: Collected Posts

Guest Blogger

Ashley Moran

Below are the collected posts on the LevinsonFest 2022 roundtable on law, literature, and other performing arts: 

1. Ashley Moran, LevinsonFest on Law, Literature, and Other Performing Arts

2. Samuel Levine, The Art of Legal Interpretation

3. Robert Pushaw, Interpreting Law and Literature

4. Stanley Fish, The Theory Debates of the 1980s: A Retrospective

5. Richard Weisberg, Sandy’s Joyfully Divided Soul and a Glimpse at a Constitutional Poethics in View of Roe’s Leaked Demise

6. Sanford Levinson, Law as Performance and as Theory 

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Law as Performance and as Theory

Guest Blogger

Sanford Levinson

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022.

Again, the first thing to do is to thank the participants in this gathering and the team of colleagues at UT without whom none of this would be possible, Ashley Moran, Richard Albert, and Trish Do.  My gratitude is boundless.

I think it is fair to say that the papers in this session are quite disparate, perhaps in keeping with the notional celebration of what I consider the best single thing I’ve ever been part of in my forty years at the University of Texas Law School.  That was the organization, in 2003, of a week-long symposium, running literally morning, noon, and night, on the general theme of “From Text to Performance: Law and Other Performing Arts.”  The “star” of the symposium was the wonderful-in-every-way polymath Jonathan Miller, but in fact everyone was terrific.  The central idea was that law, like ballet, music, and theater, could not possibly be understood only by reading texts, scores, notations, or scripts.  Instead, they required “performance,” which, among other things, involved multiple performers of varying ability and sympathy with the authors’ presumed intentions, assuming one had any idea what they were and, just as importantly, whether the answer really matters.  One of the most memorable occasions of the week was a luncheon speech by the English playwright Arnold Wesker, the author of a play Shylock, that in effect was a response to Shakespeare’s own Merchant of Venice. The morning of the last day of the symposium, on Friday, was devoted to a number of different performances of the courtroom scene from The Merchant of Venice and the analogous scene from Wesker’s play, directed by Miller himself, a high honor (or so I thought).  Wesker took the occasion of his speech, though, to describe Miller, famed for his directorial innovations in both plays and operas, as a “necrophiliac,” because he liked “to fuck dead playwrights” by ignoring their intentions.  For better or worse, Wesker was on premises!  After a dustup, Miller continued in his directorial role and at a concluding dinner they sat at the same table and behaved like old friends.  It was all extraordinarily exciting and illuminating about how disagreements could be handled.

In any event, the point of the overall analogy was to demonstrate that courts, like all participants in any “marketplace of ideas,” had to “sell” their particular interpretations to a variety of critics who would play important roles in gaining them a receptive audience—or not.  Linda Greenhouse, then still the New York Times Supreme Court reporter, was an essential participant in the symposium, as was Anthony Tomassini, then the chief classical music critic for the Times.  Richard Weisberg, who has a distinctive take on The Merchant of Venice, was part of a group that put together its own version of the courtroom scene from that play.  So the symposium featured artistic performances as well as detached analyses of the idea of performance more generally and what the basis of our evaluations might be.  It’s not simply how one tells the dancer from the dance; it’s also how one evaluates performances of Mozart or Beethoven on “original instruments,” as Malcolm Bilson performed, or on the most advanced Steinways, as was the case with Russell Sherman.  For me it was an unforgettable experience, but, quite obviously, one might wonder exactly how, if at all, everything hung together.  So now on to the presentations.

Sandy’s Joyfully Divided Soul and a Glimpse at a Constitutional Poethics in View of Roe’s Leaked Demise

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Richard Weisberg

In his version of the iconic story, Goethe has his hero say, “There are two Fausts in my soul!”[1] And a century or so later, Camus’ lawyer narrator in The Fall[2] puts his own first-person story under the sign of Janus, the Roman god with two faces looking in opposite directions. There is a bit of this doubleness in my friend Sandy's soul. I’ve thought for a while that his trained intuition follows a literary tune, but that his less Dionysical and more Apollonian mind points him towards history and the social sciences. 

Fortunately for me and many others celebrating him now, Sandy has followed his intuition often in his presence and writing as a scholar. Appraising fairly recently his own most enjoyable and noteworthy career contributions, Sandy gave the gold medal to the famous University of Texas week-long symposium he organized some years ago on Law and the Performing Arts. At this gala event, the impresario in Sandy came to full fruition as famous stage directors, actors, musicians, and other artists joined with scholars to explore in a highly convivial environment created by Maestro Sandy the ties between law and performance.

Using Section Three Against Our Former President

Gerard N. Magliocca

Ed Foley has an excellent essay in today's Washington Post arguing that Congress should take steps to invoke Section Three of the Fourteenth Amendment against Donald Trump. Last year, Bruce Ackerman and I made a similar argument. There is still time for Congress to act on the bill introduced last month in the House. 

Balkinization Symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Joseph Fishkin and William Forbath, The Anti-Oligarchy Constitution: Reconstructing the Economic Foundations of American Democracy (Harvard University Press, 2022).

1. Jack Balkin, Introduction to the Symposium

2. Emily Zackin, Constitutional Meanings

3. David Pozen, Inside or Outside the Modalities?

4. Mark Tushnet, A Contemporary Manifesto for a Left-Liberal Constitutional Political Economy

5. Ken Kersch, Constitutional Politics After Defeat: Fidelity to What?

6. Kate Andrias, The Hard Questions about Constitutional Political Economy

7. Gerald Torres, Common Sense Constitutionalism

8. Bertrall L. Ross II, The Constitution We Have and the Constitutions We Want

9. Mark Graber, The People's Constitution

10. Joseph Fishkin & William E. Forbath, The Future of Progressive Constitutionalism: A Response

The Theory Debates of the 1980s: A Retrospective

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Stanley Fish

What were the debates in the 1980s about? In general, they were about the nature of interpretation, especially, though not exclusively, legal interpretation, and they were driven by three questions: 

• ·        What if anything constrains interpretation?
• ·        What is the source of these constraints—the text, rules, authorial intention, the moral foundation of the law, the structure and conventions of practice, divinely revealed truths?
• ·        In order to have constraints must you first have a theory? If so, what kind of theory—linguistic, formalist, economic natural law, pragmatist, feminist, postmodernist, realist?

And who were the participants? Owen Fiss, Sandy Levinson, Ronald Dworkin, Stanley Fish, Gerry Graff, Walter Michaels, all of whom glance sideways at Judge Posner; each with a connection to literature and the liberal arts, each a Jew of a certain age. 

These main figures were engaged in a dance-like series of encounters in which temporary alliances and oppositions gave way to new oppositions and new alliances. 

In the background of these debates is a picture of the scene of interpretation that is either being affirmed, or challenged, or declared completely false. 

• ·         A free-standing independent text that has a meaning
• ·         A free-standing independent interpreter whose job it is to decode the meaning
• ·         Some method or theory that serves as a bridge between, and a constraint on, (1) and (2). 

Constraint is necessary because, it was said, interpreters will always be tempted to substitute their own meanings for the meaning the text contains. Texts in their turn are inherently ambiguous, capable of being read in many ways, and, because ambiguous, a possible ally of the willful interpreter. Just as an interpreter must be prevented from going his/her own self-serving way, so must a text be prevented from releasing all the meanings that could possibly be assigned to it. 

The question then is how exactly do you do that, and the answer Sanford Levinson gave in 1982 is that you can’t. For years he reports, he organized his course on constitutional interpretation around the question “Did the court get it right,” a question that required for an answer “the development of a full set of principles and methods of correct interpretation”. Now however he is less and less confident that “this is a sensible enterprise”; he has become convinced by reading Rorty, Bloom, Kuhn, and Fish that the reader not the text controls because language is “unavoidably ambiguous”; and that in turn means that “meaning is created rather than discovered” and as a result nothing can prevent the interpreter from doing what Richard Rorty says he will always do; beat the text into a shape that will best serve his own purposes.

The Future of Progressive Constitutionalism: A Response

Joseph Fishkin

Interpreting Law and Literature

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Robert Pushaw

Sandy Levinson maintains that literary theory and the performing arts can inform legal interpretation. Are such analogies useful, since legal analysis has such major political, economic, and social effects?[1] Perhaps “yes,” as hermeneutics (the rules, methods, and theories of interpreting texts) has yielded various approaches that have parallels in law.[2] Alas, almost all attorneys have ignored hermeneutics and characterized legal interpretation as sui generis. Debates over hermeneutics and law, then, will remain the province of academics.

Leading that field is Professor Levinson, who published a seminal article forty years ago.[3] It can be summarized as follows.[4] Modern linguistic and literary theorists deny that an interpreter can ascertain a text’s objective meaning. Rather, the indeterminacy of language results in a process through which readers subjectively engage with the text to construct its meaning. This critique has radical implications for interpreting law texts. Legal professionals cling to the illusion that they can impartially discern a law’s true meaning. Unlike literature, however, law would collapse if multiple interpretations were deemed equally valid, so ultimately one view will be accepted because it is set forth by an acknowledged authority who can coerce compliance.

The Art of Legal Interpretation

Guest Blogger

This post was prepared for a roundtable on Law, Literature, and Other Performing Arts, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

Samuel Levine

It is both a pleasure and an honor to participate in this fitting tribute to Sandy Levinson. Over the years, I have had the opportunity to engage Sandy's scholarship, both in person and in writing, across a number of areas in which we share considerable interest, including, among others, constitutional law and interpretation, law and religion, legal ethics, legal history, and the work of Robert Cover. In addition to appreciating a common interest in these fields of inquiry, I have repeatedly been drawn to Sandy's incorporation, sometimes expressly and at other times implicitly, of themes related to Jewish law and Jewish thought, themes I have often explored and expounded substantially in my own scholarship. As it turns out, the co-authored article I have been asked to discuss for the LevinsonFest, Law, Music, and Other Performing Arts,[1] contains few references to Jewish themes.[2] At the same time, the article focuses on a number of important issues that prove central in Jewish law and tradition. Accordingly, this reflection paper will briefly address three interrelated issues, comparing and contrasting Levinson's analysis with discussions found in sources of Jewish law and tradition.

First, as the title of Levinson's article indicates, the basic premise he develops in the piece is the recognition that law is an art—perhaps even a "performing art"—akin to music, thus to be distinguished, in important ways, from a science. As such, Levinson positions Richard Posner, as a foil of sorts, representing the view that as disciplines, the study and practice of law and legal interpretation remain far removed from literature and similar fields of seemingly less precise methods of interpretation.[3] For many centuries, Jewish legal authorities have observed that by its nature, legal interpretation resists analogies to the exact sciences. For example, writing in the thirteenth century, Nachmanides identified an inherent difference between legal reasoning and the logic of engineering.[4] While it is possible in engineering to prove demonstrably, with mathematical precision, that a particular theory is correct, legal reasoning often involves questions that can be resolved logically in more than one way. The role of a legal interpreter is to examine the evidence motivating each of the possible conclusions, and to determine which conclusion appears most accurate and convincing.[5]

The similarities between Jewish legal interpretation and other forms of literary interpretation are particularly pertinent in the context of Levinson's argument, which acknowledges, at various points, Posner's distinction between interpreting the law, which commands, and literature, which does not.[6] Notably, the Torah and other Jewish legal sources function, most basically, as commands, but owing to their literary form—indeed, owing to the nature of written, or even orally formulated, commands—Jewish legal sources are often inherently susceptible to multiple contrasting interpretations, all of which may be plausible, and each of which takes into account both the literary characteristics and the normative substance of the commands. Perhaps most strikingly, the written text of the Torah has been compared to a song or a poem[7]—a literary form that Posner deems to be paradigmatic of art rather than law.[8]

Of course, the reality of multiple—and alternatively viable—interpretations of a legal text is not unfamiliar to Posner, though Jewish legal thought may provide one of the most dramatic illustrations of this dynamic. The Talmud relates an account of a debate among legal decision makers in which a lone dissenter invokes a series of miraculous events, culminating in the emergence of a heavenly voice, apparently affirming his minority opinion. Nevertheless, the dissenter's opinion is rejected, as the law is to be determined in accordance with the majority view,[9] rendered on the basis of human reasoning—even, as it were, when the majority view contradicts Divine transcendental logic.[10]

Second, the recognition that legal texts and rules often prompt multiple interpretations, not unlike other forms of literary and artistic interpretation, dovetails with another theme underlying Levinson's analysis, the notion that law is better understood—if not best understood—through a broader perspective that draws upon other disciplines, including the arts.[11] After all, among various other functions, the law serves on a fundamental level as a means of representing society's collective assessments of communal and individual roles within social structures. By definition, these assessments incorporate multiple societal interests and perspectives, and thus, would inevitably benefit from incorporating multiple disciplines and areas of study. As Levinson notes, there are, of course, important factors to consider as to the degree of time and attention to be allocated to other disciplines, but these practical questions do not undermine the underlying appreciation for the potential contributions of these fields to the effective interpretation and administration of the law.[12]

Here too, Jewish legal intellectual history may provide a helpful analogue, demonstrating the salience of Levinson's observations, as applied to a legal system that accords centrality to the legal corpus while also recognizing the relevance of other forms of knowledge. Indeed, over many centuries, Jewish legal scholars have explored the potential—if not indispensable—contributions of other disciplines and areas of thought to enhance the interpretation and implementation of the law. At the same time, though, scholars have often debated the relative value of other disciplines, anticipating Levinson's acknowledgment of practical limitations on the amount of time and energy to be dedicated to the study of other fields, vis-à-vis the abiding necessity and priority of mastering legal materials on their own terms.[13]

Finally, as a further corollary to both of these themes, the law's inherent and deep connection to human judgment and social realities complicates—and enriches—efforts to remain faithful to authoritative legal sources and traditions amidst the inevitable changes and differences that emerge within the human experience. In fact, as Levinson emphasizes—perhaps somewhat paradoxically[14]—fidelity to legal principles and traditions may entail a healthy dose of adaptation, necessitating flexibility and modification rather than unflinching repetition of past decisions.[15] Conversely, as Levinson likewise notes in the context of constitutional interpretation--perhaps representative, but certainly not unique as a form of legal interpretation—"[i]t has always been feared, though, that too much 'adaptation' would mean not the endurance, but rather the death of the Constitution."[16]

Not surprisingly, perennial and sometimes perplexing tensions between continuity and change have played a central role in thousands of years of Jewish legal history, during which a Divinely mandated and immutable law has been interpreted and applied through countless changes in time and place.[17] Among many telling illustrations of this dynamic, one of the most instructive may be found in one of the earliest and most momentous transitions in Jewish history, from the leadership of Moses in the desert to the leadership of Moses' most dedicated and faithful student, Joshua, upon entry into the Land of Israel. In short, the Talmud faults Joshua for imposing on the nation a ban against using property from the conquered city of Jericho—an enactment that the nation violated, prompting a Divine punishment.[18] Yet, the Talmud notes that Moses had previously imposed similar bans, seemingly serving as a precedent for Joshua's decision,[19] thus begging the question as to why Joshua's ruling is deemed to be problematic.[20] In response to this question, Talmudic commentators offer an insight with abiding relevance to legal interpretation and decision making, explaining that because societal circumstances had changed considerably, and in crucial ways, Moses would not have imposed the ban in the later times. Accordingly, rather than demonstrating fidelity to the teachings of Moses, Joshua acted in a way that was inconsistent with prior legal principles and traditions.[21]

As Sandy Levinson has demonstrated, both in drawing analogies between law and performing arts, and throughout his remarkable—and still expanding—oeuvre, the art of legal interpretation and legal decision making is inextricably linked with the careful study, and deep appreciation and understanding, of broader societal and intellectual currents. Sandy's work serves as a model for the rest of us, who continue to learn from him and to further apply his insights within our own scholarly pursuits.  

Samuel Levine is Director of the Jewish Law Institute and Professor of Law at the Touro Law Center. You can contact him at slevine@tourolaw.edu.

LevinsonFest on Law, Literature, and Other Performing Arts

Guest Blogger

Ashley Moran

We are back with a terrific set of short papers from our third LevinsonFest 2022 roundtable, discussing the intersection of law, literature, and other performing arts.

The roundtable includes essays from Samuel Levine (Touro College) on parallels between Jewish legal interpretation and other forms of literary interpretation, Robert Pushaw (Pepperdine University) on contextualist approaches to legal interpretation, Stanley Fish (University of Texas at Austin) on movies’ portrayal of law, Richard Weisberg (Yeshiva University) on channeling Sandy’s inner Faust and a poethics of constitutional law, and Sandy Levinson (University of Texas at Austin) weaving all of these themes together.

The event discussion, which also included remarks from Farah Peterson (University of Chicago) on the role of persuasion in legal interpretation, is available on the panel webpage. We hope you enjoy the discussions!

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

The Dangerous 303 Creative Case

Andrew Koppelman

The conflict between gay rights and religious liberty is back in the Supreme Court, this time in 303 Creative v. Elenis, which arrives under the guise of free speech. The religious claimant will almost certainly win. The question is whether she prevails on appropriately narrow grounds, or whether the Court will balloon the law of free speech into anarchical proportions.

I explain in a new piece at Canopy Forum.

LevinsonFest on Constitutional Faith and Veneration Collected Posts

Guest Blogger

Ashley Moran

Below are the collected posts on the LevinsonFest 2022 roundtable constitutional faith and veneration: 

1. Ashley Moran, LevinsonFest on Constitutional Faith and Veneration 

2. William Blake, Constitutional Faith, Not Faith in the Constitution: A Reflection and Call to Action 

3. Andrea Katz, On Parasitic Growths and America’s Rigid Constitution 

4. John Dinan, Explaining and Assessing the Decline of State Constitutional Conventions 

5. Brian Christopher Jones, Perhaps the Only Thing Worthy of Veneration: Brevity 

6. Aziz Rana, Du Bois and the Project of Constitutional Transformation 

7. Sanford Levinson, Reflections on the Future of Constitutional Faith: We Can’t Go On, We Must Go On

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Reflections on the Future of Constitutional Faith: We Can’t Go On, We Must Go On

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022.

Sanford Levinson

First things first:  My deepest thanks to all of the participants in this panel, as well as to Ashley Moran, Richard Albert, and Trish Do, without whom it never would have happened.  A full response to all of the papers would require an even far longer essay, so my comments will inevitably not do full justice to all of the issues they raise.

Brian Christopher Jones has written a fine book, Constitutional Idolatry and Democracy, which I have reviewed elsewhere.  Both of us agree that one ought not to “venerate” constitutions, but, instead, to subject them to almost ruthless instrumental evaluation on how well, in fact, its particular provisions serve contemporary society.  But that is almost a secondary issue for Jones.  Perhaps because he lives and teaches in the U.K., Jones is really suspicious of almost any written constitutions for fear that they will inevitably be too rigid and generate “dead-hand” problems that will prove dysfunctional as time goes by.  I agree with much of his analysis.  However, I think that his emphasis on brevity per se can be misleading.  After all, one can imagine a quite brief constitution, shorter even than the unusually short United States Constitution, that says, simply (something like) “The United States will be governed by a national Congress, which shall consist of a House of Representatives chosen in single-member districts on a first-past-the-post basis and a United States Senate in which each of the constituent States of the Union shall have two senators.  Members of the House shall serve six-year terms, senators, twelve-year terms.  Each may be re-elected indefinitely.  This Congress shall have plenary power.” 

What could be briefer?  That being said, it should be obvious that such a “constitution” could well be considered disastrous.  If one believes in a responsive electoral democracy, this would seem to fail the test in two quite different ways, first with regard to the length of the terms and second, of course, by reference to the indefensible allocation of equal voting power to remarkably differently-populated states.  One might also raise questions about permanent eligibility to run for re-election, though that is literally the least of the problems with the suggested clause.  The point is simple—perhaps even simplistic:  Even if one for good reasons is wary of such constitutions as Alabama’s or India’s, which do seem to go on forever, there is no good reason to believe that brevity will provide the solution.  One can do great mischief in under 50 words.  And one might well believe that there is a good reason that most modern states, because they are pluralistic, can no longer rely on “unwritten conventions” to provide the necessary basis for a stable polity.  After all, a major development in British “constitutional” politics was the passage of the Fixed Terms Act that, in theory at least, prevents Prime Ministers from calling “snap elections” to the detriment of the political parties seeking to take power themselves.

Du Bois and the Project of Constitutional Transformation

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Aziz Rana 

Sanford Levinson’s scholarship has long been a central influence on my own work. His critique of constitutional veneration and of the American “constitution of settlement” have driven my own interest in making sense of the history and politics of U.S. constitution worship. His call to expand the judicial canon has informed my efforts to incorporate the law of colonialism and empire more systematically into the study of American constitutionalism. With both of these Levinsonian ambitions in mind, for my reflection paper I aim to recover the arguments of a key voice of U.S. constitutional dissent: W.E.B. Du Bois.

Du Bois is rarely read by legal scholars as a constitutional thinker, but his arguments—especially in the 1930s and 1940s—offer among the most sustained accounts of the limitations of the American federal constitutional model. Indeed, for scholars today confronting the breakdown of our legal-democratic institutions, expanding the “canon” centrally concerns not only incorporating new cases, but also alternative foundational figures who rarely appear in conventional constitutional writing. These figures offer essential insight into basic struggles over the federal constitution’s legitimacy as well as the meaning of the text in contemporary cultural and political life.

Perhaps the Only Thing Worthy of Veneration: Brevity

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Brian Christopher Jones

Brevity may be the soul of wit, but you won’t find much wit in the American Constitution. The longer the document endures, the clunkier many of its qualities appear to contemporary readers: no direct election of the president, unbearably high amendment procedures, no mention of judicial strike down power for Acts of Congress, and no explicit acknowledgement of major constitutional principles such as democracy, the rule of law, or the separation of powers. And while new Supreme Court appointments often turn into a constitutional lovefest (at 1:15 and 6:30, respectively), many contemporary constitutional scholars harbor a growing tide of resentment against the American Constitution…and for good reason: its faults are many, not least when it comes to its democratic nature. And yet, the prospects of any formal constitutional change in the near future appears highly unlikely. With this avenue closed off for citizens, there are major questions as to what Americans should be thinking about in the coming years, as the US prepares to celebrate 250 years of nationhood. For all its faults and shortcomings, there may be one saving grace: brevity. Indeed, the brevity of America’s founding document may be worthy of veneration, and perhaps could be something to rally around in the coming years.

Here I articulate three reasons to celebrate brevity: 1) brevity provides more opportunities for democratic politics; 2) brevity encourages the development of institutional norms and practices; and 3) brevity facilitates opportunities for constitutional literacy among the general public. Scholars have highlighted that constitutional brevity may be preferable to longevity in terms of GDP output and levels of corruption, indications of social trust, and the effectiveness of rights protection. While these studies indicate benefits to brevity, other work demonstrates a trend in contemporary constitutions towards more specificity, resulting in longer constitutions designed to limit discretion, essentially telling agents “exactly what to do and not to do” (Versteeg & Zackin, chp. 15). But these constitutions appear to be more flexible, thus inviting more frequent revision. The issues remain far from settled, and debates will undoubtedly continue as to what strategy future constitutional drafters should take, and what qualities provide the best fit. However, in this post I argue the most important reason for brevity is simply this: to enhance the opportunity for self-government.

Explaining and Assessing the Decline of State Constitutional Conventions

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

John Dinan

Of the many aspects of constitutionalism that Sandy has done so much to illuminate and participants in Levinsonfest are addressing, I am especially drawn to Sandy’s exploration of American state constitutionalism, specifically state constitutional conventions. Sandy has highlighted Americans’ frequent reconsideration of and innovation regarding governing principles and institutions. And he has lamented the decline of state constitutional conventions that once served as forums for much of this reconsideration. And in work with William Blake, he has analyzed recent unsuccessful referenda on calling state conventions, with an eye to understanding the public’s views about conventions. 

I have also long been interested in state constitutional conventions and in my remarks, I will consider why, after more than 230 state conventions were held from the 1770s to the 1970s, none have been held in the last 30 years, and I will also discuss the consequences of this change. This is a good time to offer these remarks because in November 2022 three states – Alaska, New Hampshire, and Missouri – will vote on automatically generated referenda asking whether to call a convention. My remarks might be helpful not only in stimulating conversation about a subject that Sandy has thought and written about but also offering some perspective about these upcoming convention votes and informing the participants in these referenda. 

I will start by discussing why state conventions have been entirely absent in recent decades after they were once held on a regular basis. Conventions are less prevalent today in part because of a greater reliance on other mechanisms for changing state constitutions. In some states in the 18^th and 19^th centuries, conventions were the only means of changing constitutions. But once all states allowed for legislature-referred piecemeal amendments – New Hampshire was the last state to take this step, in 1964 – this removed some of the need to call conventions to make constitutional changes, because these changes could be made in an alternative forum and in a more focused way. The 20^th-century adoption of citizen-initiated amendments in 18 states (I am including Mississippi in this count, even though the Mississippi Supreme Court last year invalidated that state’s initiative process, in issuing a decision in a case challenging a recently passed medical marijuana legalization initiative) has provided still another vehicle for changing state constitutions and in this case avoiding any need for legislators to sign off on the changes. And then Florida has since the late 1960s allowed still another alternative to conventions, by providing that one of two constitutional commissions (one commission has broad authority and the other is limited to addressing tax and budget matters) shall convene every 10 years and have the power to submit constitutional changes directly to voters, though voters in November 2022 will vote on a measure to eliminate the more powerful of these two commissions. Efforts to bring about state constitutional changes that would at one point have been funneled into calling conventions are now channeled to other amendment mechanisms, reducing the pressure to call conventions.

On Parasitic Growths and America’s Rigid Constitution

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Andrea Katz 

In 1905, an Australian parliamentarian observing the United States used an unusual metaphor to describe our Constitution. Years before, Henry B. Higgins (not George Bernard Shaw’s professor of linguistics!) had been on a trip to the forests of New Zealand and had seen a massive pine tree, the rimu, gracefully encircled by a flowering vine called the rata. To his surprise, Higgins learned from his hosts that with time, “the fair and clinging” rata would grow stronger and thicker, eventually choking the rimu to death. Higgins reflected, “So it may be with America’s rigid constitution and [its extra-constitutional] parasitic growths.”

As Higgins saw things, by the early twentieth century there were several “parasitic growths” encircling the U.S. Constitution: for one, the fact that during wartime, the American president became “a dictator with almost unlimited powers.” The mighty impeachment power, intended to punish presidents who disregarded the law, seemed to be reduced, in Higgins’ words, to a “mere scarecrow,” while extralegal conduct by presidents like Jefferson, Jackson, Lincoln and Roosevelt was tolerated, even celebrated. Higgins noted, too, that the Vice President was essentially a figurehead. And he was disgusted by a Congress dominated by money and political partisanship, and by a judicial appointment process suffering from the same defects.

Constitutional Faith, Not Faith in the Constitution: A Reflection and Call to Action

Guest Blogger

This post was prepared for a roundtable on Constitutional Faith and Veneration, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law.

William D. Blake[1]

Sanford Levinson’s (1988) book Constitutional Faith is a monumental work of constitutional theory. It provides a rich framework to explore questions of constitutional identity, interpretation, and citizenship. Sandy conceptualizes debates over judicial supremacy through the lens of constitutional Catholicism and Protestantism. Constitutional Catholics view Supreme Court decisions as authoritative pronouncements of constitutional meaning, while constitutional Protestants democratize constitutional contestation (see also Kramer 2004; Tushnet 2000). Constitutional Faith also informed Sandy’s equally compelling scholarship on constitutional veneration (e.g., Levinson 1990; Levinson and Blake 2016) and the discrepancy between American constitutionalism and democracy (e.g., Levinson 2005; 2012). 

The concepts of constitutional faith, veneration, and democratic malfunction are intertwined. One might be tempted to think of the Constitution as the object of one’s civic faith. Madison assumes as much in Federalist 49. The strength of this faith creates veneration. As veneration grows over time, so does our aversion to changing the Constitution, even to improve its democratic performance (see Zink and Dawes 2016). 

LevinsonFest on Constitutional Faith and Veneration

Guest Blogger

Ashley Moran

I’m very pleased to share a riveting set of essays from our recent LevinsonFest 2022 roundtable on constitutional faith and veneration.

The roundtable includes essays from William Blake (University of Maryland, Baltimore County) on constitutional faith in the people who are constituted, Andrea Katz (Washington University in St. Louis) on the need for more than judicial constitutional development, John Dinan (Wake Forest University) on the decline of one mechanism of democratic constitutional development—state constitutional conventions, Brian Christopher Jones (University of Sheffield) on the value of brevity in constitutional design, Aziz Rana (Cornell University) on how W.E.B. Du Bois informs this debate, and Sandy Levinson (University of Texas at Austin) bridging these themes in assessing the future of constitutional faith.

The event recording is also available on the panel webpage. We hope you enjoy the discussions!

Ashley Moran is a Postdoctoral Fellow with the Comparative Constitutions Project and Distinguished Scholar with UT’s Robert Strauss Center for International Security and Law. You can contact her at ashleymoran@utexas.edu.

Rewriting the Rule for Rights

Guest Blogger

Joseph Blass

The right to an abortion is not the only constitutional rule rewritten in the leaked draft opinion for the upcoming case Dobbs v. Jackson Women’s Health Organization: Justice Alito also quietly slips in a three-letter word that would change the very criteria under which unenumerated rights receive constitutional protection. The opinion insists that reversing Roe v. Wade and Planned Parenthood v. Casey threatens no other precedents protecting unenumerated rights (though many commenters disagree, particularly regarding same-sex marriage and contraception), but by changing the rules under which such rights are protected, the new test may provide the legal basis to overrule those precedents without needing to rely on anything the Court says about abortion or privacy. And this new test will not only apply in cases challenging existing precedents, but will also block the recognition of rights that have not yet been claimed in court. 

It has long been settled that the Constitution protects rights not explicitly described in it: the Ninth Amendment specifically says that the document’s list is not exhaustive. Discerning and protecting unenumerated rights is important: at various times American governments have tried to prevent Americans from marrying, from teaching their children a language other than English, from refusing medical treatment, or from traveling across state lines, and the only reason they were unsuccessful is that the Supreme Court intervened and recognized an unenumerated right the government was not allowed to intrude on. And that list does not even include the panoply of privacy rights—like the right to use contraception or to privately engage in consensual sex—that commenters fear Dobbs will threaten. Even the right to be presumed innocent until criminal charges are proved beyond a reasonable doubt is not enumerated in the Constitution, and courts have had to protect it from government intrusion. But the Constitution does not specify a test for deciding whether some claimed right is protected. The Court has had to craft such tests, and they have become a body of settled law.  Justice Alito’s draft opinion announces that Roe and Casey must be overruled under a test used in three of the Court’s earlier cases, Washington v. Glucksberg, Timbs v. Indiana, and McDonald v. Chicago. But he mischaracterizes that test.

What NFL Rulemaking Can Teach Statist Legislators

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For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021).

Jodi S. Balsam

In their innovative book, Berman and Friedman investigate sports and games as legal systems, with one aim to draw lessons for statist legal systems. As a former in-house lawyer for the National Football League, whose role included managing the appeals process for league discipline imposed for game day rule-breaking, I was most fascinated by the discussion of the gamewright’s goals and constraints (Chapter 3), and what legislators can learn from the sports rulemaking, rule-changing, and enforcement process. I had a seat at that table while I was at the NFL, and offer an insider’s view as to how the goals and constraints are measured and horse-traded in practice. 

Most striking from a jurisprudential perspective, and perhaps offering a lesson for other sports as well as legislatures, is the NFL’s willingness and effort to perennially revisit and revise its rules to achieve their underlying purpose: ensuring the fairness, safety, and entertainment value of its football games. NFL rules are theory-driven to maximize competitive equity, authenticity, and drama. NFL gamewrights acknowledge that rules need to be as simple as possible while offering enough detail and specificity to be enforceable with consistency across officiating teams. The rules need to balance the opportunities for great offensive and defensive plays while generating enough scoring to hook the audience, especially in the last two minutes of each half. The rules need to protect player health and safety while enabling feats of athletic excellence. On an annual basis, the NFL returns to these first principles and reconsiders its rule book. 

While legislatures and regulatory agencies make periodic attempts to evaluate and reconsider the effectiveness of their enactments and enforcement efforts, it is rarely with the intensity and magnitude of the NFL’s process. Imagine a world where every law is regularly scrutinized to determine if it is serving its purpose, or whether instead it has become obsolete, resulted in counteractive cost and complexity, or generated unintended consequences. Imagine lawmakers open to ideas generated by any source or circumstance—or even by new technology—as long as the changes will offer improvement. That is the attitude and approach taken by the NFL and its Competition Committee, which serves as the league’s gamewright for all competitive aspects of the game. (The Competition Committee typically comprises nine or ten members, a mix of head coaches and club senior executives.)

Sports and Non-Originalist Interpretation

Mark Graber

For the Symposium on Mitchell N. Berman and Richard D. Friedman, The Jurisprudence of Sport: Sports and Games as Legal Systems (West Publishing 2021). 

The jurisprudence of sports is not a jurisprudence of originalism.  Officiating boards across the country have an officer called the “Interpreter.”  The Interpreter of Board 40 (might have been 41) of the International Association of Basketball Officials (IABBO) in New Haven, where I was paying my way through graduate school as a sports official, insisted that “we interpret the rules in light of the purposes of the game so that no team gains an advantage in ways not intended by the rules.”  This is purposivism.  Other officials were textualists.  The Interpreter of IABBO Board 10 on Long Island informed us that if an offensive player was in the lane for 3 seconds, we were to call a three second violation no matter whether the player was having any effect on the game.  The three second rule from this perspective needed no more interpretation that the two-senator rule in the Constitution of the United States (the New Haven Interpreter disagreed).  All interpreters were doctrinalists.  Maintaining our precedents was vital.  The pitch we call a strike in the first inning should be a strike in the last inning.  No Interpreter was an originalist of any stripe.  We might learn about what the framers intended when discussing a new rule just adopted that winter, but no Interpreter gave any instruction in history when discussing various vague rules such as the advantage rule in soccer (do not call a foul when doing so might disadvantage the fouled team) or unnecessary roughness in football.

THE JURISPRUDENCE OF SPORTS is not a jurisprudence of originalism.  In a fascinating study, Mitchell N. Berman and Richard D. Friedman catalogue the remarkable number of jurisprudential issues that occur in the sporting world.  Their text raises questions internal to sports about how these issues should be resolved and, as important, whether the way we think about the jurisprudence of sports ought to influence how we think about jurisprudence more generally.  This is a text that will inspire numerous professors to teach a course in the jurisprudence of sports, both because of interest in the subject matter and because how thinking about sports may help us think about laws more generally.  Professors and students who use THE JURISPRUDENCE OF SPORTS will learn much about interpretation, but little to nothing about originalism, public meaning originalism, living originalism, or any other originalism.  Berman and Friedman discuss textualism and purposivism in their chapter on how officials interpret sports rules.  The section on the role of practice is an implicit discussion of doctrinalism and precedent.  Nowhere will the reader find a discussion of the meaning of the rules at the time they were ratified.  Berman and Friedman point out that the ban on fraternization was one consequence of the Black Sox scandal of 1919, but neither the authors nor anyone else seems to think the interpretation of that ban depends on the public meaning of fraternization in the first quarter of the twentieth century.  The origins of rules in sports is ancient history, important for the study of classics, but not for either players or officials.