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The Imbecilic Constitution of Sanford Levinson

In Sanford Levinson’s scattershot attack on what he calls our “imbecilic” Constitution, he relies on an admixture of demonstrably false empirical claims, sloppy history, and half-baked political theorizing. He begins by claiming that “critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.” Mr. Levinson clearly hasn’t been to any Tea Party rallies over the last several years, where hundreds and sometimes thousands of people gather to express their displeasure at the state of our politics, yet proudly carry copies of the Constitution tucked under their arms. They have made the determination that the Constitution is the solution to our problem—certainly not the problem itself. For them—and for many others—the dysfunction we experience stems from the willful refusal on the part of politicians and judges to take the Constitution’s plain language seriously. That is not a determination Mr. Levinson would agree with, but his claim that people nowadays are not mentioning the role of the Constitution is absurd.

My sense is that the Founders’ Constitution is being taken more seriously by more people nowadays than it has been at any time over the past half century or so. This is not to say there are not many battles still to be fought and won, but simply that the language of the Constitution now inspires the troops—whether in the pushback against Obamacare, the preservation of fundamental Second Amendment rights, or a more generalized antipathy to politicians who seem ignorant of the fact that the Constitution limits the federal government to a set of enumerated powers.

In condemning the Constitution for helping to “entranch” chattel slavery, Mr. Levinson confuses the compromises of the Constitution with its principles, but even its principles rub him the wrong way. He is at one with much of progressive thought in his call for a kind of mass democracy, consisting of a federal government unencumbered by the messy business of dealing with sovereign states. And he expresses the characteristically progressive frustration that our system of separation of powers and checks and balances prevents the formation of a “government,” by which he apparently means a unification of the executive and legislative branches for the purposes of efficiently passing legislation, as if the passage of legislation is itself the hallmark of good government. What Mayor Bloomberg notes of soft drinks is also true of legislation: more is not better.

He wishes too for a more straightforward amendment formula, presumably dissatisfied with the stunning speed with which courts continue to amend the Constitution through the promiscuous minting of new rights and entitlements which are alien to the document, and to our representatives elected according to its enduring terms. For many thoughtful Americans, our goal should be to slow the process of constitutional amendment, not accelerate it.

In rejecting the need for veneration of the Constitution,  and encouraging a careless populism hostile to it, Mr. Levinson takes direct aim at James Madison’s claim, in Federalist49, that “as every appeal to the people would carry an implication of some defect in the government, frequent appeals would, in a great measure, deprive the government of that veneration which time bestows on everything, and without which perhaps the wisest and freest governments would not possess the requisite stability.” Mr. Levinson would be well advised to take a page from the Tea Party book: be a critic of political dysfunction, but a friend of wise, free, and stable constitutional government.

Reader Discussion

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on June 04, 2012 at 08:11:03 am

Levinson thinks that the masterminds that gave us the disaster of the War on Poverty and the soon to be fiscal disasters of Medicare, Medicaid and Social Security can fix what ails us if they are given yet another chance and unlimited power.
He lives in world of theories that never have to make the grade and be judged with results but only with intentions.

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JeffC
on June 04, 2012 at 08:43:42 am

Let me speak from experience. Prof. Levinson was my Con Law professor at The University of Texas School of Law. I found his thinking disturbingly disorganized, his lectures maddeningly muddled. I can honestly say I was dumber for having taken his class. (And although it wasn't my highest grade, I passed.)

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CaptainVictory
on June 04, 2012 at 12:24:04 pm

Captain Victory,
I don't know Professor Levisnon so I am unable to comment on the correctness of your observation regarding his teaching skills. However, litigating such an issue in the comments to this post would be completely without value. Levinson's post stands on its own, independent of his classroom mettle. Your completely off topic comment represents little more than a thinly veiled ad hominem. Despite your criticism, apparently your UT legal education at least taught you how to "pound the table." Perhaps next time, you will come armed with the facts and the law. It would do your alma mater proud.

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Seattle Chris
on June 04, 2012 at 13:25:28 pm

Isn't this sort of stuff that Woodrow Wilson pushed more than a century ago in his books which were the intellectual foundation of the "progressive" movement. I think it is ironic that the so genannten "progressives" are still peddling the same ideas that they did in the era of gas lights and high button shoes with the claim that their ideas are modern.

There is nothing modern about the dog's breakfast of "progressivism" and socialism that leftist academics serve up these days. The sad truth is that neither Levinson nor any of his cohort has anything new, modern, or interesting to say.

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Walter Sobchak
on June 04, 2012 at 13:52:33 pm

Imbecilic is the history of humans, and more so to some of our own.

In Madison to Lee, June 25, 1824:
"Not to look farther for an example, take the word “consolidate” in the Address of the Convention prefixed to the Constitution. It there and then meant to give strength and solidity to the Union of the States. In its current & controversial application it means a destruction of the States, by transfusing their powers into the government of the Union."
And:
Plessy v. Ferguson was the wrong decision, for the State exercised what was a reserved right of freely being in a public space of one's choice.
And:
Today's "Federal Restricted Buildings and Grounds Improvement Act of 2011."
A title with no bearing on the subject, and containing further imbecilic restrictions of broad and sweeping interpretation.
And:
Other name changes, from the recent NDAA legislation to obscure reality.
And: ....

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Eric Hodgdon
on June 04, 2012 at 20:39:39 pm

Victory' s comments were clearly relevant. At least be careful enough to spell the name correctly Levinson, not "Levisnon". Off topic? No - I'm pointing outthat you, like Lefinson, is sloppy and it spills over into how both of you reason.

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CenTex Kid
on June 04, 2012 at 21:03:24 pm

"Begin with the Senate and its assignment of equal voting power to California and Wyoming; Vermont and Texas; New York and North Dakota."

Okay. Let's begin with that. There would have been no federal government, and perhaps no United States of America for much longer, had the Philadelphia Convention not provided equal representation in the Senate: the small states feared (quite rightly, we see) that the more numerous votes of the large states would overwhelm the interests of the smaller states. Why do I say that we see that? Because Levinson himself complains that the larger states cannot overwhelm the smaller states in the Senate by having more numerous votes!

"Might we not be far better off to have a national referendum on 'Obamacare' instead of letting nine politically unaccountable judges decide?... Why shouldn’t the votes of, say, seven of the nine Supreme Court justices be required to overturn national legislation?"

Ah. That explains the whole screed. Fewer than 7 of the supreme court judges (the federal constitution calls them judges, twice, so I do too) can overturn Obamacare. That's what set him off.

Enough of this.

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ELC
on June 04, 2012 at 21:11:44 pm

Seattle Chris,

I suppose, in your mind, so long as you are a Professor of Constitutional Law ( or even simply a Visiting Instructor, like Obama) it matters not whether you are any good at what you do. After all, you reason, that's the whole point of tenure. It is interesting how simple value judgements (is this education worth my money?) become "pounding the table" when conservatives are the ones judging. But restricting how many ounces of soda pop can be sold in a single package - well that's pure genius.

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TheBiggestFairyTale
on June 05, 2012 at 02:21:22 am

CaptainVictory gave me a useful data point. I was wondering why Sanford Levinson wrote such a weak yet impassioned critique of the U.S. Constitution, and now I know that he may have made a habit of it in his own class.

Thank you CaptainVictory!

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Matthew Goggins
on June 13, 2012 at 19:50:35 pm

There is a measure of commonality between Levinson and Watson. Both seemingly agree that certain aspects of the constitution were compromises rather than principles. The line between a compromise and principle depends on whether you agree with the status quo on that topic. "The veneration which time bestows on everything" does not discriminate between good and bad and compromises that are no longer necessary are forever enshrined.

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SK
on January 19, 2015 at 11:05:04 am

To say that the Constitution would not have been adopted without equal representation in the Senate is a bit disingenuous, because it is equally clear that without proportional representation in the House, it would not have been adopted either. This was known as the Great Compromise. What the Founders failed to include was a mechanism to break the tie.

The last time we "took the Constitution seriously," and insisted on literal, technical, and impractical results, the Civil War broke out. The agitators of that were the political, and sometimes, the blood, ancestors of the Tea Party. Those Tea Party folks who "proudly carry the Constitution" also think the earth was created in six 24 hour days.

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John

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.