Sanford Levinson

Understanding the Constitutional Revolution

E live in extraordinary times. In the past year the Supreme Court of the United States has decided an election and installed a president. In the past ten years it has produced fundamental changes in American constitutional law. These two phenomena are related. Understanding the constitutional revolution that we are living through means understanding their connections. The new occupant of the White House—we will call him “President” after he has successfully prevailed in an election conducted according to acceptable constitutional norms—has taken the oath of office and has begun to govern. But his claim to the presidency is deeply illegitimate. He and the political party that he leads seized power through the confluence of two important events that would have caused widespread outrage and produced vigorous objections from neutral observers if they had occurred in a third world country. The first is the disenfranchisement of black voters in Florida in violation of the Voting Rights Act of 1965. Concerned about alleged

Responding to Imperfection: The Theory and Practice of Constitutional Amendment

An increasing number of constitutional theorists, within both the legal academy and university departments of government, are focusing on the conceptual and political problems attached to the notion of constitutional amendment. Amendments are, among other things, recognitions of the imperfection of existing schemes of government. The relative ease or difficulty of amendment has significant implications for the ways that governments respond to problems that call either for new structures of governance or new powers for already established structures. This book brings together essays by leading legal authorities and political scientists on a range of questions from whether the U.S. Constitution is subject to amendment by procedures other than those authorized by Article V to how significant change is conceptualized within classical rabbinic Judaism. Though the essays are concerned for the most part with the American experience, other constitutional traditions are considered as well. The contributors include Bruce Ackerman, Akhil Reed Amar, Mark E. Brandon, David R. Dow, Stephen M. Griffin, Stephen Holmes and Cass R. Sunstein, Sanford Levinson, Donald Lutz, Walter Murphy, Frederick Schauer, John R. Vile, and Noam J. Zohar. Sanford Levinson holds the St. John Garwood and W. St. John Garwood, Jr., Regents Chair in Law, University of Texas at Austin, with a joint appointment in the Department of Government there. He is also the author of Constitutional Faith (Princeton).

Law, Music, and Other Performing Arts

Today the conductor, more than any one musical figure, shapes our musical life and thought. That may not be how things should be, but it is the way they are. In a future, fully automated age, it may be that the conductor, along with all performing musicians, will be obsolete. Musical creators are working toward that day, assembling electronic scores that, once put on tape, never vary.... But until that unfortunate day is here, let us be thankful that there still remain interpretive musicians to synthesize the product of the composer. For without the interplay between the minds of the creator and interpreter, music is not only stale, flat and unprofitable. It is meaningless.... Musical notation is an inexact art, no matter how composers sweat and strive to perfect it. Symbols and instructions on the printed page are subject to various interpretations, not to one interpretation.

The Canons of Constitutional Law

Academic and political debates about what texts are canonical in the liberal arts have been occurring for some time. In this Commentary, Professors Balkin and Levinson discuss canons and canonicity in the study of law in general and of constitutional law in particular. Canons, they contend, are not simply collections of texts. Skills, approaches, forms of argument, standard examples, and even stock stories can be equally canonical to a discipline or culture. The authors argue that the most significant differences between how canons are formed in law and in the liberal arts stem from differences in institutional context. First, because law schools are professional schools, concerns of pedagogy, cultural literacy, and academic theory diverge more in law than they do in the liberal arts and hence form distinct if overlapping canons. Second, because legal canons rely heavily on pronouncements of courts and legislatures, liberal arts scholars have more control over their canon than do legal scholars. Nevertheless, legal scholars do have some agency in forming their canon, and the authors contend that the canon of constitutional law needs serious revision. The current study of constitutional law is too much centered on the opinions of the Supreme Court and lacks comparative and historical perspective. The narrowness of current canonical materials has had unfortunate effects for constitutional theory and legal education, encouraging too much specialization and focusing attention away from basic questions about the justice of the legal system. A revitalized constitutional canon should pay attention to structural questions that do not often come before courts, and it should include nonjudicial interpreters of the Constitution, particularly representatives of political and social movements whose interpretations often shape and influence the direction of constitutional interpretation.

Law and the Humanities: An Uneasy Relationship

In 1930 legal professionals like Judge Learned Hand assumed that law was either part of the humanities or deeply connected to them. By the early twenty-first century, this view no longer seems accurate, despite the fact that legal scholarship has become increasingly interdisciplinary. Instead law has moved closer to the social sciences. This essay discusses why this is so, and why the humanities exist in an uneasy relationship with law and contemporary legal scholarship. No matter how often the legal academy embraces skills and knowledges external to law, laws professional orientation - and the fact that law is taught in professional schools where most students will not become academics - continually pulls legal scholarship back toward an internal attitude toward law and recourse to traditional legal materials. As a result, law remains far more like a divinity school - devoted to the preservation of the faith - than a department of religion - which studies various religions from multiple perspectives. To the extent that the contemporary disciplines of the humanities view law externally or in ways inconsistent with its professional orientation, they are merely tolerated in law schools rather than central to legal study. More generally, because law is a professional field, it resists colonization by other disciplines that view law externally. Instead, law co-opts the insights of other disciplines and turns them to its own uses. Ironically, laws thoroughly rhetorical nature, which strongly connects it to the traditions of the humanities, places the contemporary disciplines of the humanities at a relative disadvantage. Law uses rhetoric to establish its authority and to legitimate particular acts of political and legal power. Laws professional orientation pushes legal scholars toward prescriptivism - the demand that scholars cash out their arguments in terms of specific legal interpretations and policy proposals. These tasks push legal scholars toward technocratic forms of discourse that use the social and natural sciences more than the humanities. Whether justly or unjustly, the humanities tend to rise or fall in comparison to other disciplines to the extent that the humanities are able to help lawyers and legal scholars perform these familiar rhetorical tasks of legitimation and prescription.

Torture in Iraq & the rule of law in America

legitimacy of American interrogation practices in the war on terror 1⁄2rst emerged in regard to Afghanistan. In January of 2003, for example, The Economist published a remarkable set of articles on torture, detailing some of America’s more dubious practices. Yet as the editors of The Economist noted, within the United States itself the discussion of torture was “desultory.” That all changed in May of 2004, when the cbs television program 60 Minutes and The New Yorker released photographs from the Abu Ghraib prison in Iraq. These pictures provoked worldwide outrage and, even more importantly, sparked a long overdue public debate in the United States about torture and the permissible limits of interrogation in the aftermath of the September 11 attacks. As one might expect in a legalistic culture such as ours, some of this debate has revolved around the de1⁄2nition of torture itself. Common lay understandings of torture are in fact quite different from those articulated by many American lawyers. One reason is that the U.S. Senate, when ratifying in 1994 the United Nations Convention Against Torture and Other Cruel, Inhuman, or Degrading Treatment or Punishment, offered what one might call a more ‘interrogator-friendly’ de1⁄2nition of torture than that adopted by the un negotiators. Thus the Senate, as is its prerogative, stipulated while consenting to the Convention that

Democracy and Dysfunction: An Exchange

This essay, structured as a debate, discusses the current causes of political dysfunction in the United States.Levinson argues that the causes of dysfunction can be traced to the Constitution itself. Remedying political dysfunction requires a new constitutional convention or a series of constitutional amendments, and Levinson explains why a program of constitutional reform is urgently required.Balkin argues that the problem is best described as a problem of democratic representation, not dysfunction; it does not require either a constitutional amendment or a new constitutional convention. He argues that the federal government appears dysfunctional because the old Reagan regime is breaking down and we are in a transition to a new regime.In a subsequent exchange, Levinson and Balkin reassess their arguments in light of the rise of Donald Trump as the Republican nominee in 2016.

Courts as Participants in "Dialogue": A View from American States

A perennial topic of interest and debate is the role that courts play, as a descriptive matter, and ought to play, normatively, within any given polity, particularly with regard to enforcement of bills of rights. At least since Alexander Bickel’s influential 1962 book The Least Dangerous Branch, the legal academy has been “obsessed” with the “countermajoritarian difficulty” that Bickel posited. Like most political scientists, I believe the description of courts as countermajoritarian is considerably overstated, not least because of the impossibility of explaining precisely why the dominant political leaders of any polity would in fact tolerate genuine countermajoritarian “judicial supremacy” over matters deeply important to them. It is not surprising, then, that