The End of Faith

Frank I. Michelman*

Take One, 1987. Sanford Levinson, not without misgivings, signs the Constitution.1 He signs while pondering blights of injustice and imprudence in the constitutional understanding and practice of our day – some of those clearly, in his view, legacies of our country’s historical dalliance with slavery.2 In fact he signs while thinking that his name will be going not only on the post-Reconstruction instrument, but also, inescapably, on the slavery-coddling original of 1787.3 Being able, nevertheless, to discern constitutionally supported remedies for constitutional imperfections, he finds, to his apparent relief, that “I can sign.”4

Take Two, 2004 to the present day. Sanford Levinson declines to sign the Constitution.5Something, obviously, has changed in the meantime, but what? Not the Constitution. And not any make-or-break development in the body of legal doctrine that issues in the Constitution’s name. Recent judicial glosses on constitutional rights are not what is driving Levinson’s new-found resistance, but rather his deepening dispute with provisions in the Constitution that no mere interpretive gloss could ever mend.6 And what of constitutionally supported remedies? Have they vanished? They have not, and thereby hangs a tale.

In 1988, Levinson explained both his strong wish to sign if possible and the finding that he could gratify it. Start with the question of what it is that one does by signing-or-not. For Levinson at that time, the choice lay between confirmation and repudiation of membership in an identity-anchoring, American communion defined by commitment to the Constitution’s ideals as expressed, say, in the Preamble.7 Given such a vital stake, it was lucky that one could sign without endorsing the Constitution as fault-free or even nearly so. To sign was not to send up two cheers for the Constitution, it was rather to rededicate oneself to “political conversation” aimed at redeeming those preambular ideals, in a political practice through which redemption by such means could be deemed a live possibility.8 And ours could be so deemed, thought Levinson then, if only because of the Constitution’s commendable provision of a usable path to its own correction: not Article V standing by itself, but Article V in company with a commitment to boundless political conversation and its indefinite continuation for which Levinson quite credibly found the Constitution to stand.9

In Our Undemocratic Constitution, explaining again his reasons for signing in ’87, Levinson mentions the Constitution’s idealism and his belief at that time in its potentially redemptive openness to self-correction,10 but this time he says nothing of any dire identitarian consequence of a refusal to sign. To the author of Constitutional Faith, refusal had been tantamount to divorcing oneself from an American political fellowship: it had meant giving up one’s “identity as a member” and thus, in a bit of hyperbole, “everything.”11 Holding such a view, it was understandable that said author would take care not to set the bar for signing too high on the scale of constitutional perfection: “The question is what deviation from perfection is tolerable, justifying inevitable compromises.”12 And the answer was that even “severe” imperfections could be signed for, in view of the Constitution’s idealistic promise and its provision for self-correction.13 As long as even grave imperfections were open to cure by constitutionally supported means, one could keep the faith and sign.

How to account for Levinson’s subsequent change in stance? Between 1987 and 2004, Levinson reports, he has become gravely concerned about barriers raised by the Constitution’s major structural provisions against the practice of democracy in this country, on “any acceptable notion of democracy.”14 These barriers he now finds “almost” insurmountable.15But with that “almost,” Levinson’s explanation for his shifted stance only serves to reignite our question about what really has changed for him in the meantime. “Almost” insurmountable means not insurmountable. It means – in a particular way I shall soon describe – that the door is still open to a live possibility of constitutional repair by constitutionally supported means. It seems that the Levinson of Constitutional Faith would have walked through the door and signed.

That Levinson found he could sign because the severe defects he saw were reparable by changes that would not, he said, with a nod toward Article V, be “fundamental.”16 The Constitution, he evidently meant, could be fixed without overthrowing it. For one does not overthrow – one rather confirms – an arrangement by moving to repair its faults (as measured by its ideals) using means the arrangement itself provides. That is not apostasy; it is, to the contrary, the essence of fidelity, of faith.

Now you think you see what has crucially changed for Levinson since then. Today, but not then, Levinson targets Article V, formerly a part of the Constitution’s salvation, as itself an intolerable constitutional fault – not only in itself a direct insult to democracy but a terrible obstacle to attainment of constitutional reforms democracy cannot live without. On the terms laid down in Constitutional Faith, that factor indeed would spell the difference between signing and not signing. Or rather it would do so if Levinson means to carry his critique of Article V all the way down, so to speak. But it seems that he does not. Constitutional remedies are still, in his view, available.

Levinson today urges Americans to pressure Congress into calling a convention to propose amendments and send them on for ratification by majority vote in a nationwide referendum.17 If such a course is tantamount to rank evasion of Article V and the Constitution, then of course Levinson cannot not sign what he calls upon others to violate. For most American constitutional lawyers, I grant, that seemingly would settle matter against signing. They would say that Levinson’s is indeed a program of constitutional overthrow, just as they would say the country overthrew the Articles of Confederation by its submission in 1789 and thereafter to rule under the Constitution.18 They would say so because they believe Article V neither authorizes any convention unless petitioned for by two thirds of the states, nor – and this is crucial – allows for ratification of constitutional alterations otherwise than by concurrence of three fourths of the states.19

Levinson, however, is not most lawyers; he is inveterately a thinker outside the box, one reason why we so much cherish his scholarship. In the matter at hand, he expressly takes his stand on a maverick view of the relevant constitutional legalities. Endorsing arguments advanced by Akhil Amar,20 he maintains both that Article V allows Congress to summon a convention on its own motion, and that a convention once called may constitutionally provide for ratification of its product by a national plebiscitary majority.21

Of interest is the fact that Levinson takes these pains to establish the constitutional legality of the political program he urges. Why does he? Even if those who sign thereby bind themselves to act politically within constitutionally charted lines, Levinson is pointedly avoiding any such contract. Why, then, argue as if it binds him?

We’ll come back to this question, but first we must tend to its converse. Since Levinson quite pointedly is not urging constitutional overthrow – he rather argues for the constitutional legality of his plan – why won’t he sign in 2004 on the same basis as before? He still, after all, finds the Constitution offering “a rich, even inspiring language by which to envision and defend a desirable political order.”22 In 1987, that was enough, along with the redemptive promise of lawful amendment and political conversation, to let him sign. Lawful amendment is still workable, he maintains, and so is political conversation (or else his book is the father of all paradoxes).

It seems the stakes have changed for signing or not. Separation from the fellowship, loss of American creedal identity, loss of “everything”: those considerations have dropped from view. Where they were, or perhaps we should say overriding them, is now a scruple against any possible gesture of approbation of the Constitution “today.”23 Compare the Constitution as it aspires to be and might become, Levinson’s focus in 1987. Instead of where one stands with respect to the Sisyphean project of achieving the Constitution’s ideals, the key question of identity has now become “whether I wish to encourage my fellow citizens to reaffirm [today’s Constitution] in a relatively thoughtless manner.”24 Believing as Levinson does that today’s Constitution is grievously undemocratic and dysfunctional, he decides to avoid making himself, by signing, a model and teacher of “blind devotion” to it.25 What formerly would have registered as a signal of faith and fellowship now registers as connivance in mass self-delusion.

Levinson’s legions of fans and admirers – none bigger than me – will be variously enthused and alarmed by this somewhat dramatic change of view on his part. What we who have engaged with Constitutional Faith will at any rate understand is that Levinson cannot have come lightly – anything but – to the belief that the herd-mentality signification of signing outweighs the separationist signification of not signing. His assessment of our Constitution’s democratic prospects must have turned bleak indeed.

But that then returns us to the question of overthrowing the Constitution by frankly breaking free of its “iron cage” of restraint (Article V as conventionally construed) on meaningful structural reform.26 Why balk at a bit of a revolution, if things are really so bad, any more than did the framers of 1787? There are revolutions and revolutions, Charles Fried points out.27Lawyers sometimes can see them where others might not, and not all the ones that lawyers descry – as where a people makes a peaceful end-run around undoubted, regnant legal niceties of basic-law alteration – tear apart the fabric of society; some indeed may repair it. That would appear to be the teaching of Bruce Ackerman, in scholarship Levinson esteems.28 Why then should Levinson go to the trouble of arguing, in company with Amar but with little hope of convincing the legal punditry, in favor of the perfect constitutional legality of the steps he urges?

Maybe simply because he believes it. Maybe because of some felt rhetorical imprudence, in the U.S. here and now, of exposing one’s program to charges of revolution however precious. But the knife of rhetoric cuts both ways here, because to swim with Amar against the predictable counter-torrent of informed opinion on what Article V allows is to risk credibility across the board, including on the meaty points of constitutional structure – the Senate, tri-cameralism, the Electoral College, and the rest – about which Levinson is mainly concerned to persuade the country, on every one of which (as this symposium suggests) he will be battling other experts.

I like a different answer. Twist and turn as we will, there is something in us lawyers that just does not love a revolution, just would rather not flout and spurn the only basic law we have for the time being. Leave it to Sandy, of all people – our most resolutely antiformalist of lawyers, but a lawyer still29 – to hold up the mirror.

* Frank I. Michelman is Robert Walmsley University Professor at Harvard Law School.
[1] I refer to Levinson’s meditation in Constitutional Faith (1988), on a bicentennial exhibition where visitors are invited to add their signatures virtually to the Constitution, and he has to decide whether or not to join the party. See SANFORD LEVINSON, CONSTITUTIONAL FAITH 193, 184 (1988) [hereinafter CONSTITUTIONAL FAITH].
[2] See, e.g., id. at 189-90.
[3] See id. at 184-89.
[4] See id. at 93.
[5] See SANFORD LEVINSON, OUR UNDEMOCRATIC CONSTITUTION: WHERE THE CONSTITUTION GOES WRONG (AND HOW WE THE PEOPLE CAN CORRECT IT) 3-4 (2006) [hereinafter UNDEMOCRATIC CONSTITUTION].
[6] See id. at 5-6, 9.
[7] See CONSTITUTIONAL FAITH, supra note 1, at 184, 193; Frank I. Michelman, Faith and Obligation, or What Makes Sandy Sweat?, 38 TULSA L. REV. 651, 657-58 (2003).
[8] CONSTITUTIONAL FAITH, supra note 1, at 193.
[9] See id. at 191, 193.
[10] See UNDEMOCRATIC CONSTITUTION, supra note 5, at 3-4 (2006).
[11] See CONSTITUTIONAL FAITH, supra note 1, at 184 (“[O]ne gained or lost everything.”).See also id. at 192 (“[R]efusal . . . would require a much deeper alienation from American life and politics than I can genuinely feel.”)
[12] Id. at 190-91, 192-93.
[13] See, e.g., id. at 190-91.
[14] See UNDEMOCRATIC CONSTITUTION, supra note 5, at 6.
[15] Id.
[16] CONSTITUTIONAL FAITH, supra note 1, at 190.
[17] See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-80.
[18] See, e.g., Bruce Ackerman & Neal Katyal, Our Unconventional Founding, 62 U. CHI. L. REV. 475 (1995) (showing the break in legality between the pre- and post-Constitutional regimes of governance in the United States).
[19] See U.S. CONST. art. V.
[20] Levinson cites Akhil Amar, Popular Sovereignty and Constitutional Amendment in RESPONDING TO IMPERFECTION: THE THEORY AND PRACTICE OF CONSTITUTIONAL AMENDMENT 89 (Sanford Levinson ed., 1995).
[21] See UNDEMOCRATIC CONSTITUTION, supra note 5, at 173-74, 177. Levinson writes “legitimately” where I wrote “constitutionally,” but the two terms can safely be deemed equivalent for him in this context, because he is expressly endorsing Amar’s legalist view.
[22] Id. at 5.
[23] Id.
[24] Id.
[25] Id.
[26] Id. at 165.
[27] See Charles Fried, The Supreme Court, 1994 Term-Foreword: Revolutions?, 109 HARV. L. REV. 13, 20-27 (1995).
[28] See, e.g., UNDEMOCRATIC CONSTITUTION, supra note 5, at 22, 177.
[29] See Michelman, supra note 7, at 661-63.

 

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