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). 

Constitutional veneration undermines the possibility of constitutional amendment because the act of updating a sacred text contains within it a tacit admission that its adherents had been worshiping a false idol. Thus, constitutional veneration is like religious veneration. The books of the Christian Bible were canonized by the 4th century, and although an omnipotent God could reveal a new prophet at any point, that has not happened. As biblical veneration increased over time, the probability of apocrypha being elevated to canon declined. Time and tradition, not authoritative command, provide the strongest reasons why the scriptural and U.S. constitutional canons seem closed. 

The fundamental problem with constitutional veneration is that it conceives of the Constitution as an end in itself. But Sandy’s scholarship on democracy reminds us that a constitution is only a means, designed to serve the ends of a polity. Sandy asks us to return to Aristotle, who never required a constitution to be a document, much less one to be worshipped. To Aristotle, constitutional design is as much a sociological project as it is a political or legal one. “This community...[of citizens],” Aristotle (1944) argued, “is the constitution.” Thus, to Aristotle, constitutional faith does not mean faith in a written constitution. 

To mark this celebration of Sandy’s 40 years at the University of Texas, I want to argue that constitutional faith provides a path back to democracy in the United States. To understand why, we must move beyond thinking of the Constitution as the object of our faith. I am not asking you to become Garrisonians—to abandon the Constitution and begin from first principles. I merely observe that in the phrase “constitutional faith,” the word constitutional acts as a modifier, not a direct object. It suggests constitutional faith is one among many potential forms of faith. Samuel Taylor Coleridge, for example, famously conceptualized aesthetics as “poetic faith,” which requires “that willing suspension of disbelief for the moment” (see Tomko 2015). 

What does faith require in the realm of constitutionalism? I begin by considering a prominent Christian definition of faith. In Hebrews (11:1), Paul writes “[F]aith is the substance of things hoped for, the evidence of things not seen.” I quote from the King James Version of the Bible, the preferred translation of Primitive Baptists—including Sandy’s paradigmatic constitutional Protestant, Hugo Black (Levinson 1988, 31-33). 

The substance of our constitutional hopes, Sandy (2012, ch. 3) tells us, can be found in the Preamble. There we learn the constitutional canon can never be closed. Each generation of the polity needs new prophets who endeavor to make ours “a more perfect Union.” Strengthening the commitment to democracy must be part of that constitutional reinvention if we, like John Dewey (2008, 228), truly believe that “[d]emocracy and the one, ultimate, ethical ideal of humanity are...synonymous.” 

The notion of having “evidence of things not seen” is potentially problematic to a social scientist (like me). One could adopt an anti-intellectual interpretation: empiricism requires evidence based on observation. If something cannot be seen, perhaps faith provides a substitute for evidence. On this account, faith is reduced to obedience to God’s will. I think this phrase is amenable to empiricism, if one concedes that the absence of evidence is not evidence of absence. That is, the substance of our hopes may seem ephemeral, but it does not follow that those desires are impossible. What is required is a careful assessment of how we fall short, and how we can make progress. 

Thus, constitutional aspiration and empirical evaluation go hand in hand. Sandy’s work on democracy can perhaps best be described as diagnostic political science, another Aristotelian concept (Zug 2019). The task of a political scientist, according to Aristotle, is to evaluate the health of the body politic in the same way a doctor assesses a physical constitution. But physicians do not perform exams for their own sake (the incentives of the American fee-for-service healthcare model notwithstanding). They do their jobs to reach the aspirations set out in the Hippocratic oath. 

In the rest of Hebrews 11, Paul expands his argument by analyzing how Old Testament prophets exhibited faith. He chronicles the deeds of Noah, Abraham, and Sarah, among others. To Paul, their faith was not based on blind obedience. Instead “they desire[d] a better country” (11:16)—their version of a “more perfect Union.” They made sacrifices in service of their community, in the same way that constitutions must serve the people. They “embraced” God’s promise even though they could only see deliverance “afar off” on the horizon (11:13). More importantly, they all must have known that they were updating scripture through their actions, not working within the terms of some perfect and unchangeable covenant. The Bible was not the object of their faith. 

In chapter 12, Paul turns from history to the obligations of faith in his day. “[L]et us lay aside every weight, and the sin which doth so easily beset us,” he writes, “and let us run with patience the race that is set before us. Patience, however, does not mean compromise. In other translations, the word perseverance is used instead. What can undermine this perseverance? The word for sin, hamartia, means metaphorically (or in the case of Greek archery, literally) to miss the mark. Aristotle also uses hamartia to describe an error of judgment that leads to the downfall of the hero in a tragedy (Stinton 1975). 

To lay aside sin, on this account, does not require some kind of saintly purification. We must merely learn from our mistakes and try again. And so it is with constitutional amendments. By adding amendments as “new [constitutional] texts rather than directly editing old ones,” Akhil Amar (2005, 460) has observed, “We the People have made amends without hiding our past mistakes.” 

Many scholars have resisted Sandy’s call for constitutional amendments in favor of other ways of dealing with American democratic dysfunction. One alternative is, if I may, Balkinian: pursue incremental reforms, and trust that the cycles of constitutional time will produce more democratic leadership (Balkin 2020). This approach takes seriously the notion that the pursuit of constitutional perfection comes with the risk of political calamity (Graber 2006). At the same time, incrementalism reinforces the corrosive nature of constitutional veneration: by placing the blame with our leaders, the Constitution appears blameless. 

Or perhaps the problem is rooted in the way we have interpreted the rules of the game. Veneration could become a boon, rather than a hindrance, to democracy if we rediscover a democratic meaning to the existing Constitution. This was the strategy of (among others) Franklin Delano Roosevelt. To defend the New Deal, FDR became an evangelist, telling citizens that the Constitution is “a layman’s document, not a lawyer’s contract” and “like the Bible, it ought to be read again and again.” Roosevelt’s rhetoric contained two messages: first, Supreme Court decisions are not infallible papal edicts. Furthermore, if citizens read the open-textured language of the Constitution, they could convince themselves that the New Deal was already authorized by it. While this Protestant message helped Roosevelt prevail over the Supreme Court’s resistance, his failed attempt to pack the Court had dramatic repercussions for constitutional Catholicism: it cemented judicial supremacy into the American political order (Whittington 2008). 

Returning briefly to religious conceptions of faith, Paul’s argument is communicated quite differently in biblical translations used by Catholics. There, Hebrews 11:1 reads: “Now faith is the assurance of things hoped for, the conviction of things not seen Constitutional Catholics will appreciate this phraseology. The word “assurance” comes from the Greek hypostasis, meaning literally “under” and “to stand.” Hypostasis was used to communicate legal standing in Ancient Greece, as well as a legitimate claim or title of possession. Providing assurance, to a Constitutional Catholic, seems like the work of judges. 

Are courts the institutions we should trust to provide the assurance of our democratic hopes? Maybe, maybe not. The romantic stories of the Warren Court’s deeds do not measure up well to empirical scrutiny (Rosenberg 1991), although on certain issues where incentive structures align with judicial capacity, courts can be remarkably powerful institutions (Hall 2010). Thus, it should come as no surprise that the Court is responsible for much of our present democratic discontent (e.g., Keck 2004; Tushnet 2013). Protestant constitutionalism, by contrast, privileges social movements, which have been responsible for the most democratically-transformative amendments to the U.S. Constitution (e.g., Beaumont 2014; Milkis and Tichenor 2019). 

Sandy (2005, pp. 95-96) rightly points out that the “iron cage” of Article V makes amendments extremely difficult. Outside of formal amendment, how can we “run with perseverance the race” to democracy? Sandy has offered insightful, Protestant critiques of how his two disciplines—law and political science—conduct education and scholarship. He (e.g., Balkin and Levinson 1998) has urged law schools to teach constitutional debates that occurred outside of the courtroom. Pedagogical omissions lead to missed opportunities in appellate advocacy. Constitutional Protestants would have implored the Solicitor General’s Office to add the Republican Guarantee Clause to their arguments in Shelby County v. Holder (Chin 2014). And Sandy (2009) has always questioned the notion in political science that “to become normative is to become biased.” Unfortunately, it took the election of Donald Trump for many of us to realize how ludicrous this scholarly posture is. Diagnostic political science offers a much more productive direction for my field. 

Ultimately, we must recognize that constitutional faith and faith in the Constitution are opposing concepts. The latter is oriented towards a document, the former privileges the people who are constituted. In the United States, the document is not adequately serving its people. I will not dwell on what changes are needed; Sandy (e.g., 2005) has done much of that work for us. I merely wish to emphasize that constitutional faith, rightly understood, asks us to make amends. To some, constitutional reform may seem a fool’s errand. To others, it may seem too risky. Nevertheless, constitutional faith requires us to pursue amendments, even if a better country seems so out of reach that we cannot see it. 

William D. Blake is Associate Professor and Associate Chair in the Department of Political Science at the University of Maryland, Baltimore County. You can contact him at wblake@umbc.edu. 

References: 

Amar, Akhil Reed. 2005. America’s Constitution: A Biography. New York: Random House. 

Aristotle. 1944. Politics. Translated by Horace H. Rackham. Cambridge: Harvard University Press. 

Balkin, Jack M. 2020. The Cycles of Constitutional Time. New York: Oxford University Press. 

Balkin, Jack M., and Sanford Levinson. 1998. “The Canons of Constitutional Law.” Harvard Law Review 111(4): 963–1024. 

Beaumont, Elizabeth. 2014. The Civic Constitution: Civic Visions and Struggles in the Path toward Constitutional Democracy. New York: Oxford University Press. 

Chin, Gabriel J. 2014. “Justifying a Revised Voting Rights Act: The Guarantee Clause and the Problem of Minority Rule.” Boston University Law Review 94(5): 1551–88. 

Dewey, John. 2008. 1 Early Works. Carbondale, IL: Southern Illinois University Press. 

Hall, Matthew E. K. 2010. The Nature of Supreme Court Power. New York: Cambridge University Press. 

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Levinson, Sanford. 2012. Framed: America’s 51 Constitutions and the Crisis of Governance. New York: Oxford University Press. 

Milkis, Sidney M., and Daniel J. Tichenor. 2019. Rivalry and Reform: Presidents, Social Movements, and the Transformation of American Politics. Chicago: University of Chicago Press. 

Rosenberg, Gerald N. 1991. The Hollow Hope: Can Courts Bring About Social Change? Chicago: University of Chicago Press. 

Stinton, T. C. W. 1975. “Hamartia in Aristotle and Greek Tragedy.” Classical Quarterly 25(2): 221–54. 

Tomko, Michael. 2015. Beyond the Willing Suspension of Disbelief. London: Bloomsbury. 

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Tushnet, Mark. 2013. In the Balance: Law and Politics on the Roberts Court. New York: W. W. Norton & Company. 

Whittington, Keith E. 2008. Political Foundations of Judicial Supremacy: The Presidency, the Supreme Court, and Constitutional Leadership in U.S. History. Princeton, NJ: Princeton University Press. 

Zink, James R., and Christopher T. Dawes. 2016. “The Dead Hand of the Past? Toward an Understanding of ‘Constitutional Veneration.’” Political Behavior 38(3): 535–60.