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.

The Fixed Terms Act could, however, be repealed by a subsequent parliament.  But even the U.K., at least unless it withdraws from the European Convention on Human Rights as well as the European Union, can be said to be governed by something other than conventional understandings among gentlepersons who can be relied on to play by the rules and be good sports if they lose.  This doesn’t in the least affect my agreement with Jones that no constitution, whether brief or long, should be sacralized and treated as any kind of holy writ.  There is a utility, in playing any game, to having rulebooks—and umpires or referees who will enforce them, even as it is also necessary to make sure that the rules of the game can be changed to take account of new circumstances. 

I have long been a fan of John Dinan’s indispensable work on what his book calls The American State Constitutional Tradition, for which I had the great pleasure of writing a foreword to the paperback edition.  It is basically scandalous that the legal academy, by its fixation on the United States Constitution, in effect contributes to the ignorance that most Americans, including lawyers, have about their state constitutions.  Dinan more than anyone else has taught me about the importance of state constitutions as documents that often differ in extremely interesting ways both from each other and, importantly, from the United States Constitution drafted in 1787 and left significantly unamended, at least structurally, since then.  For example, it is demonstrably false that the “American constitutional tradition” is committed to “the unitary executive.”  Even if one, arguendo, believes that is a correct understanding of the national Constitution, that demonstrates only that one is a brute positivist.  But the overwhelming number of American state constitutions has rejected any such understanding of “the executive branch,” none more so than my home state of Texas, in which the governor appoints only the Secretary of State even as “we the people” cast separate ballots for, among many other offices, Lieutenant Governor, Attorney General, Land Commissioner, and members of the State Board of Education.  Even if Texas is something of an extreme example, it is still far more typical of American state governments than is, say, New Jersey, which comes closest to mimicking the national model; even there, however, New Jersey governors, though having the power to appoint the state attorney generals, cannot dismiss them without cause, which is not required for all other state cabinet officials. 

But Dinan focuses on something even more important about most of the states: With only one exception (Delaware), they reject what Madison was so proud of in Federalist 63, i.e., the removal from “we the people” of even an iota of an ability to engage in direct governance.  Delaware, for example, is the only state that does not require a popular referendum before its constitution can be successfully amended.  In Texas, that is the only aspect of direct democracy.  But many states, of course, allow popular initiatives and referenda as ways to engage in end-runs around what may be accurately perceived as sclerotic legislatures unwilling to countenance needed constitutional reforms.  My favorite example is Nebraska, which got rid of its totally unnecessary upper chamber in 1934 as the result of such a constitutionally-permitted initiative and referendum.  When Jesse Ventura, the “maverick” governor of Minnesota, proposed the same sensible policy for Minnesota in the 1990s, however, it went nowhere because that state does not have the initiative and referendum.  I often quote what I call “Roche’s dictum,” which I heard John P. Roche enunciate at a meeting of the American Political Science Association sometime in the 1960s:  “Power corrupts, and the prospect of losing power corrupts absolutely.”  Nothing more pithily sums up the problem with expecting those who have benefited from the present schemas of distributing power to engage in serious critiques of their own success. This most certainly would include members of the Minnesota Senate! 

The higher one goes in the elite academy, the more likely it is that one will find opponents of direct democracy, often couched in the language of protecting us against the purported ravages of “populism.”  But one explanation for populism, obviously, is a justified belief that governmental institutions have been captured by elites who fit James Madison’s notion of a “faction,” i.e., representatives of distinctly partial interests rather than people genuinely committed to something that might be termed “the public interest.”  Quite obviously, there are extraordinary difficulties in defining what one means by “the public interest,” especially in a pluralized (and polarized) world, but the response surely cannot be a blind faith (“veneration”) in the existing structures and those persons holding office in them.  Even if one acknowledges that many initiatives and referenda will strike one as ill-advised, one must compare those results with the output of the existing polity and its structures, both in terms of bad laws passed and good laws blocked.  Critics of direct democracy are prone to seizing on the worst cases and confusing them for the whole, even as they tend to ignore the costs of an exclusively “representative” government. 

Returning to Jones’s paper, I noted that one example of awful brevity would be to constitutionalize single-member districts chosen on a first-past-the-post basis.  It is not the case that such an election process to the United States House of Representatives is required by the United States Constitution.  It most definitely is not.  The fact that we have single-member districts is the result of an 1842 law passed by Congress, that made good sense at the time, coupled with its reaffirmation by a later law passed in the 1960s.  Similarly, some states have runoff elections or ranked-choice voting (as in Maine).  Congress clearly has the power to alleviate the obvious problems generated by our exclusive reliance on single-member districts and the fact that most states have chosen to stick with first-past-the-post elections.  But hell will freeze over before the House of Representatives will pass a bill repealing the 1842 legislation and requiring, say, that all states with more than five representatives divide themselves into multi-member districts with proportional representation to determine who is actually elected.  Thus Texas, 36 representatives, could easily be divided into six districts with six representatives apiece, and proportional representation would assure that some Democrats could be chosen in rural Texas and Republicans in the large and increasingly blue urban areas.  It would obviously diminish the possibility of the gerrymandering or importance of “associative” population patterns that plague contemporary American politics. 

If we had as a country what California and many other states (not thought of as “wild and crazy” in a way that most non-Californians are tempted to define the Golden State) have as the result of their state constitutions, “we the people” could confer directly with one another and render irrelevant the hammerlock that the present members of the House of Representatives, whatever their political party, have with regard to any proposals to create a more truly “representative” system of election.  So John Dinan deserves the gratitude of all of us for his suggestion perhaps the constitutional systems of the American states have something to teach us, if only we would pay attention. 

Aziz Rana teaches us another important lesson.  If Dinan emphasizes the gains of moving our gaze from the national constitution to looking at the rich materials of American state constitutions, then Rana equally spells out the importance of bringing into the canon a wider range of individuals who have offered extremely significant takes on how to understand the United States Constitution.  The legal academy not only focuses obsessively on only the national Constitution; it also has a certain tunnel-vision as to whose views about that Constitution must be taken seriously.  The answer, of course, is Supreme Court justices, with perhaps a few side glances, in some courses, at Andrew Jackson or Abraham Lincoln.  Rarely, however, are “outsider” voices welcomed into the conversation.  Rana teaches us that W.E.B. DuBois most definitely deserves to enter the halls of academe, and not only because he received a Ph.D. from Harvard.  Rather, his book on Black Reconstruction, and many of his other writings throughout his remarkable career, speak directly to a variety of major constitutional issues.  At the very least, quite obviously, his would be a “Black voice” entering into a conversation that is usually taught as an unending dialogue among white males, at least until Thurgood Marshall joined the Court in 1967 and then Sandra Day O’Connor in 1982.  But, frankly, Marshall, with his own remarkable “constitutional faith” at last in the post-1868 Constitution, inhabited a quite different intellectual universe from DuBois’s, and students could well learn from DuBois’s insights, even if they end up rejecting them because he is, say, “too Marxist.” 

Although I certainly agree with Rana about the importance of adding DuBois to the canon, I would advocate even harder for offering full entry to Frederick Douglass.  He instantiates, quite obviously, the move from the “pro-slavery” constitutionalism that joined both Calhoun and Garrison, even if they drew far different implications from that fact, to the “anti-slavery” constitutionalism found in his speech in Glasgow, Scotland in 1860.  He was in the U.K. in part because he feared being arrested and prosecuted for participation in the ill-fated raid by John Brown on Harper’s Ferry in 1859.  He was not in fact a “participant,” but he was definitely urged by Brown to join and certainly could have been implicated as a “co-conspirator” by a zealous prosecutor in Virginia trying the case before a Virginia jury.  He was probably well-advised to leave the country.  This fact would offer a suitable occasion to bring John Brown to the attention of students, perhaps by reading Douglass’s truly remarkable encomia to Brown both immediately after his hanging and then in a much longer, and even more remarkable, speech toward the end of his life.  Douglass was definitely not an apostle of only non-violent resistance toward the evil of slavery. 

I’m sure that neither Rana nor I would say that Douglass and DuBois provide enough of the materials that students (and their professors) need to be exposed to if one is truly interested in looking at what is sometimes called “popular constitutionalism” or “the Constitution outside the courts.”  And in the modern world especially, one should not believe that “Black voices” necessarily speak for all racial minorities.  The important point, though, is that all of us, especially if we are legal academics, must dispel the notion that there is a limited priesthood entitled to offer “definitive” interpretations of the Constitution.  It may be true that legal academics have a duty to teach their students that sheer prudence dictates that when representing clients in front of courts, they must take “judge-centered law talk” with special seriousness.  When in Rome….  But that is totally different from teaching that such talk is necessarily satisfying or not subject to the most relentless criticism. 

There are many things I loved about Andrea Katz’s paper on some of the constitutional implications particularly of the Progressive Era, but she really had me in her first couple of paragraphs about the hitherto unknown (to me) Henry B. Higgins and his comparison of the American Constitution, with its rigidity, to a “parasitic growth” similar to what he had seen in studying trees in New Zealand.  It is a truly wonderful metaphor, especially for anyone like myself, who increasingly sees the U.S. Constitution—or, at least, what I have called the “Constitution of Settlement” that is in fact never litigated because it presents no real issues of “meaning,” in contrast to deep issues of “wisdom”—as a clear and present danger to national (and perhaps, world) survival.  Antonin Scalia was proud of his commitment to a “dead” Constitution, and he scoffed at any devotees of a “living Constitution.”  It would be one thing if that were merely an “academic” debate, with no actual consequences save for academics interested in hermeneutics.  If, though, one believes that a “dead Constitution” can also become an “instrument of death,” that is quite a different matter. 

Perhaps that dire fate can be avoided if one accepts the transformation of the United States, via what is now described (and sometimes condemned) as “the administrative state,” into rule by technocratic elites insulated from crass politics and devoted to their role as the faithful servants of “science,” whether social or natural.  That was, in large measure, the basis of Felix Frankfurter’s devotion to what was then called the “Wisconsin Plan,” and the basis for Frankfurter’s role as one of the creators of what we now call “administrative law.”  For better or worse, though, the kind of faith (constitutional or otherwise) that underlay the original vision of public-serving administrative agencies seems to be as dissipated as the faith that was once expressed in the judiciary itself. 

Katz, as a younger scholar, is, I think, representative of a distinct move of her generation away from the kind of faith in the judiciary that typified, say, the Hart and Sacks generation and its vision of “the law working itself pure” through the “reasoned elaboration” of necessarily trust-worthy judges.  Even Alex Bickel, who later became much more skeptical of what was often described as “judicial activism,” offered his own encomia to the Court as uniquely able to look deeply into America’s soul and discern its “fundamental values,” instantiated, of course, in Brown v. Board of Education.  His emphasis on the “passive virtues” also bespoke a certain confidence in the political sagacity of the judiciary with regard to knowing when to use its power and when, instead, to retreat, whether in a wholly principled manner or not, to the sidelines. 

I am struck, on the other hand, by the active hostility to the judiciary, and therefore to “judicial activism,” found in such younger scholars as Sam Moyn at Yale, Niko Bowie at Harvard and, now, Andrea Katz at Washington of St. Louis.  She is quite free in her use of the term “juristocracy,” invented, I believe, by my colleague Ran Hirschl to refer to developments particularly in Israel and South Africa.  Inevitably, the term has both an empirical descriptive and a normative dimension.  A previous generation might have complacently counted on the Supreme Court, exercising its mixture of legal and political sagacity, to resolve some of the obvious “dysfunctionality” that she agrees plagues our present political order.  Or, like David Strauss, one might simply deny the importance of constitutional amendments (and, therefore, of paying close attention to the political structures that are impervious to innovative judicial decisions).  Instead, she concludes that it is unlikely that we will be able to confront the challenges facing us as a “polarized and skeptical America” by believing “that problems of governance can and should be solved by the Supreme Court.”  I certainly agree with her diagnosis of our political condition.  What we are all looking for is a plausible treatment plan.  What, indeed, will supply the cure for what ails us? 

Finally, there is the marvelous essay by William Blake.  I love the use he makes of the notion of faith “in things not seen” and the strong distinction he draws between faith in a discrete document, like the United States Constitution, and in a much broader notion of faith in a people whose decisions will in fact constitute the little-c constitution that, as Aristotle taught long ago, will be present in any functioning social order and which may be in considerable tension with a given “written” form.  This is a version of the distinction between “law on the books” and “law in action” taken to a new, and valuable level.  As Blake well knows, I have long been fascinated by how much change—or “amendment” to the Constitution—one can advocate and still be considered “loyal” in some deep sense to the document.  Thus I devoted a full chapter in Constitutional Faith to William Schneiderman and the unsuccessful attempt—though only because of a sharply-divided Court—by the United States to deprive the admitted Communist Schneiderman of his citizenship.  The United States argued that he had in essence committed perjury when he asserted his “attachment to the principles of the Constitution,” as required by existing naturalization law. 

What are those principles?  Is one sufficiently attached so long as one advocates remaining with Article V as the vehicle for constitutional change, even if the proposed amendment would, for example, violate the Republican Form of Government Clause by becoming a monarchy or violate the property-protective provisions of the Constitution by confiscating all private property, as would presumably be desired by a proper Communist?  Is there some kind of essential “constitutional identity” that can be overthrown by revolution, but not “amended” by any internal process inasmuch as “amendment” means perfecting the existing system rather than completely replacing it with something antagonistic to the rooted identity.  That is, in quite modern terminology, can there be “unconstitutional constitutional amendments”?  Yaniv Roznai has taught us that that doctrine, associated most strongly with Germany and India, has now taken hold in a surprising number of countries around the world.  (And even in this country, the California Supreme Court has placed limits on what can be accomplished by direct initiative and referendum if the proposed constitutional amendment would truly “revise” basic features of the California polity.) 

Blake concludes his essay by writing, “Nevertheless, constitutional faith requires us to pursue amendments, even if a better country seems so out of reach that we cannot see it.”  I cannot help but be reminded of the bleak comment by Samuel Beckett:  "Where I am, I don’t know, I’ll never know, in the silence you don’t know, you must go on, I can’t go on, I’ll go on. You’re on earth. There’s no cure for that."  I think it’s fair to say that most of us are, paradoxically or not, united these days, whatever our deeply polarized differences, by a shared sense that things are falling apart.  The center is not holding.  And I suspect that this perception is most acute among people considerably younger than I.  That is not because I am less worried about the future for my children and, especially, grandchildren, but, rather, because I am sufficiently old—after all, this panel was triggered by my having been at the University of Texas now for 42 years, where I arrived in 1980 at the age of 38—that I’m unlikely to experience what I most fear will be present in our collective future.  I will be likely to continue to lead a truly privileged life—unless, that is, Vladimir Putin really does start using nuclear weapons or Joe Biden really does mean that the United States will use all force necessary to protect Taiwan from forcible re-entry into the Chinese polity.  These are, indeed, the times that try men’s souls, the springs, summers, falls, and winters of our discontent.  Can constitutionalism, however defined, provide any answers to our dilemmas?  Who really knows?  Perhaps we must, like Tertullian, have faith in the constitutional project, even if not the Constitution itself, because it is “absurd.” 

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 slevinson@law.utexas.edu.