Friday, June 24, 2022

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.

Samuel Levine brings up the fact that I have in fact over the years been associated with, shall we say, a certain kind of “indeterminacy” with regard to legal statements as well as publicly drawing on my being Jewish and my interest in certain kinds of hermeneutic questions linked especially with Talmudic inquiry.  One of the most important associations in my life has been with the Shalom Hartman Institute of Jewish Philosophy in Jerusalem, with which I had an incredibly rich thirty-year relationship.  It undoubtedly shaped the way I look at a number of “legal” issues, especially with regard to the meaning of “interpretation.”  As I said in remarks following the death of David Hartman, a truly charismatic figure, that thirty-year relationship did not in the slightest make me any more “religious” in a conventional sense nor, for that matter, any more Zionist.  Nor did David care.  What he really wanted was to encourage everyone, Orthodox and secular, for that matter Jewish and non-Jewish, to wrestle with the endlessly fascinating issues presented by encountering the Talmud and trying to figure out its potential relevance to modern life, especially in the relatively new State of Israel to which he was devoted.  What I learned was the legitimacy of multiple interpretations, that both the House of Hillel and House of Shammai articulate the voice of the living God, even though they differed on almost every substantial issue.  The idea that there is only “one answer” to a Talmudic dilemma seems almost fatuous, even if one also learns that the Sages might command a specific answer and write it into Halacha, basic Jewish law.  But they also preserve the dissenting opinions. And, of course, there is the omnipresent question for any Jew as to the actual normative power of Halacha, which is substantially absent in my case and the case of almost all self-described “secular Jews” (a category, I think, that might be unique to Jews).  Stanley Fish in his remarks on the “interpretation wars” of the 1980s notes that most of the key participants were Jewish, whether or not observant.  Is that mere correlation or of any causal significance?

My students are often frustrated by my tendency to avoid any kind of closure, instead to emphasize the “reasonableness” of conflicting views of the law and suggesting, therefore, that something other than the sheer quality of the legal argument might account for where one actually comes out.  (In my sunset years, I am increasingly referring to myself as more of a political scientist, for which I was initially trained, than a lawyer, although I am certainly pleased to possess a J.D.)  So where does this tendency come from?  One suspects the answer might lie deeply in my childhood or in my subconscious, but it is hard to deny the extent to which the Hartman Institute and my encounters there fed whatever instincts I had already developed toward theories of “indeterminacy” and, therefore, the legitimacy of multiple responses to legal conundra.  “The role of a legal interpreter” Levine writes, “is to examine the evidence motivating each of the possible conclusions, and to determine which conclusion appears most accurate and convincing.”  Perhaps one difference between being an academic and being an actual judge or playing any other role that requires adjudication of competing positions, is that I am content, by and large, to note why two reasonable persons committed to playing the “legal game” and engaging in what I’m inclined to use “law talk” can end up believing altogether sincerely in two conflicting positions. 

Stanley Fish reminds me, however, that long ago I defined my role as a teacher in part as hectoring students to declare who is “getting it right” and for what reasons.  Frankly, I had repressed that part of my background, so deeply is it now embedded in my approach to law—and pedagogy—that I almost wouldn’t dream of asking a student to offer a Dworkinian “right answer” to a complex legal question.  Obviously, I was already on my way to changing my approach when I first encountered literary theory in the writings of Fish and others, but there can be no doubt that the Hartman Institute thoroughly solidified those tendencies.

Like most secular Jews, I’m particularly interested in a particular Talmudic passage that Levine cites, Bava Metzia 59b, from the Babylonian Talmud.  As he notes, the point of the story—and story it is, rather than the dry laying down of commands—is that even a voice from heaven is not enough to legitimate the views of the dissenting rabbi.  “The Torah is not in heaven,” the majority respond.  God presumably had his chance to make things clear when delivering the Torah; thereafter, it is up to human beings to decide what the document might mean. As James Madison declares in a powerful passage in Federalist 37, the Bible is in fact not transparent in its meanings.  There will be inevitable disagreement among presumably faithful interpreters.  And for the Talmudists, even intervention by the Divine author does not supplant the power of the human interpreters.  There are, needless to say, many ways to read this passage.  To a political scientist, one way is by viewing it as a power play by the rabbinate, an attempt many centuries before the United States Supreme Court’s decision in Cooper v Aaron to engage in a performative utterance establishing themselves as the “ultimate interpreters” of the document in question, whether the Torah or the Constitution.  But such performative utterances may or may not be successful.  They depend, obviously, on the willingness of the audience to accept the authority of the performers, and that might be precisely what is in dispute. 

One finds within the Talmud sometimes astonishing “interpretations” or what might be regarded by some as “adaptations” sensitive to what Levine acknowledges as “flexibility and modification rather than unflinching repetition of past decisions,” a mindless adherence to what we would call precedent.  Other times, though, modernists might find less happy guidance, where “adaptation” seems to have been subordinated to what much later became known as Orthodoxy.  Levine notes the different ways the Talmud treats decisions made by Moses and by Joshua. 

I had the pleasure of reviewing Chaim Saiman’s book Halakhah: The Rabbinic Idea of Law; the title of my review was “Reading Halakhah as a Secularist.” I made two central points.  One was the desirability of integrating “Jewish law” into the materials studied by those interested in “comparative law.”  The other, though, was to wonder whether one’s interpretations of the materials would substantially differ if one were indeed, a religious believer, as is the case with Saiman and Levine, as against a secularist like myself.  I think the question applies as strongly to those tasked with interpreting the United States Constitution and the importance, if any, of a genuine devotion—or what Madison called “veneration”—for the text in question.

My friendship with Richard Weisberg goes back almost forty years.  We share a common interest in “law and literature,” but the nature of that interest differs somewhat sharply.  I have been interested primarily in law as literature, i.e., in the ways that those charged with articulating what “the law means” or requires make use of a wide variety of rhetorical tropes designed to persuade the listener or reader as to the correctness of only one position.  The adversary must be shown to be—or, more accurately, described as being—“wrong” in arguing for the contrary point of view.  The fundamental debate about the nature of legal argument goes back at least to Socrates and the Gorgias dialogue, which I taught as one of the introductory readings in the courses on professional responsibility that I taught (by choice, I emphasize) for roughly 20 years at three different law schools.  Are lawyers anything more than sophists learning the skills ultimately of “making the lesser appear the greater” if the rhetorician believes, for whatever reason, that to be desirable.  I.e., are there legal “truths,” or are there instead only legal “arguments” dressed up in the language and grammar of the “law talk” that we teach to our students, to be used for instrumental purposes?  And how is that “we,” as listeners to or evaluators of such “law talk,” evaluate its use and, equally important, feel bound, in some important sense, to follow?

For better or worse, this panel was coterminous with the national debate triggered by the leak of Justice Alito’s opinion in the forthcoming Dobbs case on abortion.  Richard notes that he wrote long ago “predicted that Roe v Wade would not last—NOT because of political events or the composition of SCOTUS at any given time but because it was so poorly crafted as an opinion.”  This raises an extremely interesting and important question for anyone interested in the process of legal development; it is no coincidence that Richard is a devotee of Justice Cardozo’s Nature of the Judicial Process and the emphasis placed there on the elegance of legal reasoning.  I suppose I’m not at all certain about the relationship between judicial “craft” and the staying power of a case, particularly when we realize that an initial case, like Roe, will inevitably be followed up, if it is truly significant, by many others that will go in a variety of different directions and leave the original decision more a myth and symbol than an actually operative legal command.  Many have argued, for example, that Roe was effectively overruled in Casey or, at least, transformed into a quite different legal regime, which was in turn modified by yet other cases.  Moreover, and as much to the point, it is possible to demonstrate that many canonical cases that no one would think of overruling—think only of Brown v. Board of Education—had notorious lacunae in their reasoning.  Why exactly do The Civil Rights Cases survive 140 years later?  It is surely not because of some ineffable quality of the reasoning.  Perhaps it’s similar to asking why certain pieces or music or plays—or styles of interpreting that music, or drama—survive long after scholars have pointed to key deficiencies.  One response is simply that audiences keep buying the product because of the pleasure even kitsch might give them. 

Robert Pushaw is almost unique among participants in these sessions by engaging in a full-scale legal analysis as a way of testing different hermeneutic theories.  His aim—perhaps the holy grail for many—is to achieve what he calls a “genuinely neutral contextualism,” i.e., a method of legal interpretation that would indeed be analytically separable from politics and the tilt given any possible interpretation by its accordance with one’s own preferred views or values.  He takes on one of the most contentious examples in modern constitutional law, the meaning to be accorded the term “interstate commerce” and, therefore, discerning the limits, if any, on Congress’s power to regulate that commerce. 

Pushaw makes an extremely important point midway in his presentation.  “Average Americans,” he correctly observes, “do not read the Court's opinions” and determine for themselves their degree of “fidelity” to some favorite theory of constitutional interpretation.  Instead, they “tend to accept even unpopular decisions because they defer to its superior legal expertise and assume that it is interpreting, not amending” (my emphasis).  One reason for this assumption, of course, is that this is what the Court itself is insisting upon.  James Boyd White might have (accurately) described John Marshall’s opinion in McCulloch v. Maryland as an “amendment” of the 1787 Constitution, but that is certainly not the way he presented his opinion.  Nor have any of its admirers offered it as an example of an Ackermanian “constitutional moment” where the Constitution is amended in some manner distinctly outside the limits of Article V.  Ackerman may view many of the classic post-New Deal decisions as de-facto non-Article V Amendments of the Constitution, but it is obvious that not one justice has ever adopted that own self-description of what was going on.  Pushaw is correct that I am fascinated by how this legerdemain actually operates in our constitutional culture.  He describes me as “candidly admitting that amendment is occurring” and, moreover, that we can understand many decisions only in terms of justices making the Constitution conform to their own ideas of public morality or sound public policy, as one reading of Cardozo might suggest.

But perhaps the even deeper reality is that I want to know how various scholars (and others) theorize about amendment.  Is it possible really to have an intelligent debate about whether McCulloch,  Dred Scott, the Insular Cases, West Coast Hotel v. Parrish, Brown, Roe (to take only some of the more obvious examples) were “amendments” of the Constitution, albeit outside Article V, or, instead, legitimate, even if perhaps somewhat surprising, “interpretations” of the Constitution and to be accepted as such even if we disagree.  I will confess that one of my own favorite pieces in my oeuvre is "Accounting for Constitutional Change (or, How Many Times Has the United States Constitution Been Amended?  (a) <26; (b) 26; (c) >26; (d) all of the above)." It was originally published in 1991.  When a revised version was published in a 1995 book that I edited on constitutional amendment, the title was changed: "How Many Times Has the United States Constitution Been Amended?  (A) <26; (B) 26; (C) 27; (D) >27:  Accounting for Constitutional Change," in Sanford Levinson, ed. RESPONDING TO IMPERFECTION:  THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 13-36 (1995).  The reason for the change of title is simple, perhaps deceptively so. 

In 1992, thanks to the efforts of a former University of Texas undergraduate, Gregory Watson, Michigan became the 38th state to ratify the original Second Amendment, proposed in 1789 but, obviously, failing to gain the required support to become part of what we later learned to identify as the Bill of Rights.  Yet the amendment as it emerged from Congress did not contain a time limit; that would come along only with the Eighteenth Amendment in 1918.  So did it remain on the table, available for ratification until the end of time.  Watson wrote an undergraduate term paper arguing that the answer was yes; he received a C (though the grade was later changed, in a public ceremony, to an A).  It simply seemed bizarre seriously to contemplate a process of constitutional amendment that can last 203 years.  Because the Amendment is of no real consequence, save for law professors interested in high theory, there is no genuine public debate about its presence in the Constitutions that are now distributed to citizens and found at the beginning or ends of almost all constitutional law casebooks.  But the point of the title(s) is that there may in fact be fewer or far more than 26 or 27 constitutional amendments, unless one’s “theory of amendment” is the almost literally mindless counting of the numbered textual additions to the 1787 Constitution.  I am confident that Bob Pushaw and I could have a useful and interesting conversation about the incidence of constitutional amendment and how we might tell. 

Then there is Stanley Fish.  I must begin with a confession of deep debt to Fish.  My interest in law as literature—as distinguished from law as a subject matter of  literature, which is Weisberg’s primary concern, derives directly from reading his work in the late 1970s.  As everyone knows, and is manifested in his contribution here, he is a truly great writer, making important, sometimes mind-blowing arguments in the most accessible of prose and by offering often homely examples.  There is a reason that Steven Mailloux and I dedicated a book we co-edited together in 1988,  Law and Literary Interpretation, to Stanley.  I have never failed to be illuminated by our times together.  This past semester, he visited the UT Law School.  Two things were notable:  First, for the first time in my career, I did in fact offer, with Phillip Bobbitt, a course on “law and literature” which focused on law in various literary works, ranging from W. H. Auden’s “Law like Love” to Franz Kafka’s “In the Penal Colony.”  One of the other assignments, one is tempted to say “of course,” was Billy Budd, about which Richard Weisberg has notably written an important and controversial interpretation.  Stanley was kind enough to come to the class that day and to offer his own dazzling insights, based in part on the extent to which one should view Herman Melville as a Miltonian.  That brings up the second notable aspect of his visit:  A philosopher friend and I are reading Paradise Lost for the first time—and, I should add, loving it.  But it certainly helped that we had two lunches together with Stanley in which he offered his own incomparable mastery of Milton to help us understand what was going on in the poem.  Never have I felt so much like the proverbial student at the end of a log while privileged to have Mark Hopkins—or in this case, Stanley Fish—available to help me in my study of a truly wonderful piece of work.

So I offer two quite different responses to Stanley’s interventions.  The first takes note of the piece he contributed at the initial gathering.  The other is the one printed here on Balkinization.  The first is a forthcoming chapter from a book looking not at law in literature, but rather law in the movies.  The particular chapter he discussed analyzes both the text and the cinematography and, therefore, the lessons presumably taught by a great Western movie, The Man Who Shot Liberty Valance.  He also included some shorter remarks about another classic Western, High Noon.  Both become occasions for understanding the actual force of law as a social mechanism.  Indeed, perhaps one should emphasize the ambiguity within that phrase itself, inasmuch as one (self-serving) description of law is as the venue of detached reason, what Habermas might call “the force only of the better argument,” as against a mechanism attached to “real force,” i.e., the barrels of guns, as are featured in both movies.  Whether or not Chairman Mao was correct in asserting that political power grows out of the barrel of a gun, it is obtuse not to recognize the relationship between guns, violence (a close homonym of “valance”), and the actual creation of a “law-abiding” culture.  That is the central, and obvious, theme of High Noon, where the unequivocal hero, the outgoing sheriff, stands up (and shoots) the threats to the community even as most of his “friends” prefer to look away and avoid taking part in saving the communityBut The Man Who Shot Liberty Valance, in addition, is also about truth and opportunistic falsity.  What if one did not shoot Liberty Valance, but nonetheless takes credit for ridding the community of a fiend and rides that credit all the way to national office in Washington, far away from the local community?  There is both “literal violence” and the quite different violence that is done to communities of trust by deception.  But, of course, we may not want to know about the various ways that leaders have betrayed our trust in one or another way.  Perhaps George Washington could tell a lie, and in fact did so.  We feel better accepting Parson Weems’s reassuring picture, just as there are still people who wish to resist acknowledging the details of Thomas Jefferson’s activities as a slaveowner even with regard to his own children.  What most people remember about the movie, even if in fact they’ve never seen it, is the great line near the end:  "This is the West, sir. When the legend becomes fact, print the legend." It really doesn’t matter that the now-esteemed politician has been living a lie.  We are kidding ourselves, of course, if we think this refers only to “the [old] West,.”

But, as already suggested, there’s still more, a marvelous retrospective on “the Theory Debates of the 1980s.”  That, too, could justify a far lengthier comment that I have time for, though I’m sure I will find an occasion in the future to spell out my reactions at greater length.  For now, I want to say the following:  First, I agree with him that it is fruitless to look for some outside-the-practice “grand theory” that can be “applied” to the quotidian acts of adjudication, whether one is a judge or any other official who is charged to be faithful to the Constitution (as required by Article VI of the Constitution for every public official). To be sure, there may be some parts of the Constitution that are truly rule-like, where one can legitimately say “just read the text” and close off further argument. I call them the “Constitution of Settlement,” which are, alas, never taught in law school precisely because there is nothing really to argue about save for their wisdom.  And it is a regrettable truth that legal education is interested only in disputes about meaning, what I call “the Constitution of Conversation.”  We therefore never debate the wisdom of parts of the Constitution that may be crystal clear, impervious even to the most Herculean feats of Dworkin’s mythical judge.  All members of what Stanley taught us long ago to call the relevant “interpretative community” would simply agree as to the meaning and then move on. My favorite example is Inauguration Day, set by the Twentieth Amendment as high noon on January 20 of the relevant years.  I personally consider the long hiatus between presidential election and inauguration to be at best unwise, at worst potentially disastrous, as we learned on January 6, 2021.  But, as a well-trained lawyer, I recognize that it would be fruitless to walk into a courtroom and tell a judge that because the delay until January 20 is stupid and at times a threat to the republic, it is therefore unconstitutional. It is enough to say, “what part of January 20 do you not understand?”  The same is true of the indefensible allocation of equal voting power to each state, regardless of its population.  Again, argument is shut down when one asks “what part of two do you not understand?” 

I doubt that Fish disagrees.  My argument is not based on a fancy theory of linguistics, so that January 20 or “two” always have precisely the same meanings.  I used to teach my introductory course about changes in calendar systems, with which the Framers were in fact familiar, given the late acceptance by the British of the Gregorian calendar.  But, as I often say, it is only in the highest of high theory seminars that January 20 or “two” actually become “indeterminate” and subject to conflicting interpretations.  Every competent practitioner, however polarized we might otherwise be, would agree on the answers to the questions “when are new presidents inaugurated?” and “how many senators do Wyoming and California each have?” as much as one might, or even should, rue the answers. 

What I am uncertain about is how a “practice-oriented” view of jurisprudence operates in times of deep and genuine polarization where what is an acceptable practice is no longer clear.  That is, there is a difference between “respectful,” even if caustic, disagreement in circumstances where the participants concede that each is trying conscientiously to play the game of “judging,”  and the accusation that one’s adversary is in fact cheating and in effect playing a very different game.  It is as if one’s opponents in a chess game suddenly started moving a knight along a diagonal (like a bishop).  Whatever else they might be doing, it is no longer playing the game of chess.  I suppose, though, that one could offer the caveat that if the relevant audience to the move applauded it and had no hesitation to award the point for winning the game to the innovator, then we might have a genuine disagreement as to what constituted “chess” instead of “shmess.” 

I think it important that Justice Scalia, in his livid dissent in Obergefell, did not simply insult his colleagues, which was par for his judicial course; I wrote shortly after his death that one of his “accomplishments” was to introduce “trash talk” to the United States Reports.  He also declared that they were in fact “not behaving like judges.”  Chief Justice Roberts was little better in his demagogic final paragraph of his dissent when he said that even supporters of the decision should accept the fact that the result “had nothing to do with the Constitution.”  If one takes those declarations seriously, then the judges in the majority should be impeached, for surely it is a violation of “good behavior” to stop acting like judges (whatever exactly one thinks that means).  Presumably few “sophisticates” really take them seriously and view Roberts and Scalia as engaging in what might be called simple venting by sore losers.  But perhaps some people do read it and take it seriously.  Then what? 

At the very least, might one not have to construct a theory of “judging” by which one can distinguish between that practice, whatever latitude can be found within it, and playing a different game.  It is a bit like answering the question about the number of amendments.  Generally speaking, our practice supplies and is satisfied with the almost literally thoughtless answer “27.”  Little rides on the fact that that is a remarkably unsophisticated response; indeed, I disclose my status as a “high-theorist” of sorts by wishing to problematize it.  But no one outside the academy really cares, and the number is really not much greater even inside the academy.  Perhaps it is viewed as the equivalent of asking how many angels can dance on the head of a pin, which was once a question of genuine interest to angelologists, but now serves as the very epitome of the pointless “scholastic” question that can be simply dismissed.

So let me conclude these remarks by borrowing from a forthcoming review I shall be publishing of a book by a Japanese scholar, Yasuo Hasebe, Towards a Normal Constitutional State:  The Trajectory of Japanese Constitutionalism.  For Hasebe, I think it is fair to say that a “normal constitutional state” is one where “theory” plays almost no role.  What constitutes a “normal constitutional state,” for example, is not at all that its legitimacy can be traced to some singular act of a sovereign founder (or group of such founders authorized, in some mysterious way, to speak in behalf of “the people” as a “constituent power”); instead what is key is the existence of a set of “customary practice[s] shared among judges, public officials and private persons who are in charge of applying rules recognized as valid in the legal system.”.  Such practices are “matter[s] of fact” and not grand theory. As he puts it later in the book, “practice not texts, generate constitutional law.”  Sociology takes precedence over jurisprudence and political theory.  Perhaps one might suggest that a test of “normality” is precisely that save for basically (and blessedly) marginalized academics there is no serious discussion of what does indeed justify the given order—and decisions made by judges acting within that order—because  all important actors simply accept it as a given and continue to go about their daily lives simply deciding cases and offering appropriate justifications written in “law talk” to assure everyone that they are indeed “behaving like judges.” This is basically the view adopted by my colleague Philip Bobbitt, who completely separates the questions of how or why particular legal answers are deemed true—or acceptable—from any questions about the underlying legitimacy of the legal order itself.  As a Wittgensteinian, Bobbitt appears to regard the question of legitimacy as illustrating a kind of philosophical pathology, and therefore one to be excised from our thought. 

But such “foundational” questions may be hard in fact to excise.  This literally “practice-oriented,” anti-foundational, view of a constitutional order is most satisfying (or perhaps satisfying only) in societies with a relatively low level of conflict, where “losers” in political (including legal) struggles are “good sports” who accept their losses and look forward to the next election (or the next lawsuit) to perhaps generate more palatable results.  Once societies become significantly polarized, it may become impossible to cabin discussions of legitimacy, sovereignty, and even constituent power, whatever their genuinely severe problems.  One of the great lines in all world literature comes from King Lear: “Thou hast seen a farmer's dog bark at a beggar? And the creature run from the cur? There thou mightst behold the great image of authority: a dog's obeyed in office.”  Ordinary practices, including running from a farmer’s dog or obeying the local authorities, might generally suffice…until they do not, and then affected individuals start asking awkward questions about the basis of obedience.  I do not want to argue that truly satisfactory answers can be provided by reference to some grand theory of jurisprudence; I share Fish’s skepticism that that is the case.  I agree that there is inevitable contingency all the way down.  But I do want to suggest that reliance on ordinary, almost literally thoughtless, acquiescence will prove problematic in riven societies (like many of our own today). 

What is not clear, of course, is what can be done to “cure” the rivenness.  To return to The Man Who Shot Liberty Valence, it may be that only civil war and bloody battles will suffice.  After all, even Laurence Tribe, before he gave up his project to write a definitive treatise on American constitutional, declared that the question of secession had been resolved at Appomattox.  My friend Paul Finkelman often refers to the case of Grant v. Lee.  And I was stunned, while reading Cynthia Nicoletti’s outstanding book on whether or not Jefferson Davis was guilty of treason, to discover that serious people referred to the War as the modern equivalent of old-fashioned “trial by battle,” so that the correct legal principle would be determined by who won (with the added proviso, perhaps, that the winner was in effect chosen by God and not only by superiority in arms).  To put it mildly, such arguments seem to concede that the vaunted relationship between “law” and “reason” is itself mythic, indeed “ideological,” and therefore subject to critique.  What comes after the critique?  Who really knows?

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at

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