FLORIDA, February 3, 2013 — Sanford Levinson is a law professor at the University of Texas, as well as the author of Framed: America’s 51 Constitutions and the Crisis of Governance. One of America’s leading experts on constitutional law, he perceives the document in a strongly modernist fashion.
In this first part of our discussion, he shares his views on the most practical method of interpreting the Constitution, the Second Amendment, where constitutional rights come from, strict constructionism, and more.
Joseph F. Cotto: The debate over whether or not the Constitution is a living document seems never to end. In a modern, pluralistic society such as ours, what would you say is the most practical method of interpreting our Constitution?
Dr. Sanford Levinson: “Practical” is the key. I do believe that “due attention” should be paid to text, structure, history, and precedent, but it is also important for the Supreme Court to be sensitive as well to what Justice Holmes called “the felt necessities of the time.” Thus, somewhat to my surprise, I have ended up admiring the approaches of Richard Posner and Steve Breyer. They obviously differ in many respects, but both are basically pragmatists who think that judges should make decisions that will, all things considered, be better for the country. And both are famously skeptical of the genuinely constraining force of text, structure, history, and precedent particularly in the kinds of cases that make it to the Supreme Court.
Judges aren’t merely “politicians in robes,” but we do expect them to be “statesmen/women” and not the kind of mindless “umpire” suggested by Chief Justice Roberts and Justice Sotomayor in their confirmation hearings.
Cotto: The Second Amendment can be interpreted in many different ways. What are your views on the subject?
Dr. Levinson: Again, my view is that the best of the Heller opinions was Justice Breyer’s. I was equally dismayed by Scalia and Stevens. For me, both of them demonstrated why judges are not reliable historians. That being said, I had no real problem with the result in Heller, so I would have adopted much of Breyer’s analysis but ended up arguing that a truly “prohibitory” regime like DC’s did raise serious Second Amendment issues. My view is that the best brief was that submitted by Paul Clement as Solicitor General, which called on the Court to remand to the DC Circuit for consideration under a more properly focused standard of review.
The DC opinion, like Scalia’s, notoriously was completely vague about what standard of review courts should use when considering legislation. Alas, the Court couldn’t restrain itself from deciding on its own.
Cotto: Many people believe that Constitutional rights are granted by the divine. Others say that such rights are purely human inventions. What do you believe?
Dr. Levinson: I reject the divine origin of our constitutional rights. Some of them, like the right to trial by jury, surely reflect our particular culture and history and cannot plausibly be linked to any coherent notion of divine command (which would require explaining why only the US has the particular jury trial system it has). Others can be placed within the context of “universal human rights,” and some people do indeed see these kind of rights as reflecting some kind of divine origin. I don’t know that it matters whether one believes they are of divine origin or “purely human inventions,” since the real point is how we interpret and apply them.
Cotto: What are your views regarding strict constructionism?
Dr. Levinson: I think the term “strict constructionism” is almost useless as an analytical construct. Almost no one believes in adherence to the text regardless of consequences. So texts are always constructed by reference to surrounding circumstances or the existence of “compelling interests.” It is like “judicial activism,” another term that is a ubiquitous part of our discourse but of almost no help analytically.
Cotto: People often speak about “judicial activism” after a judge interprets Constitutional law in a controversial fashion. In your opinion, is judicial activism a legitimate concern, or a construct of populist rhetoric?
Dr. Levinson: See above.
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