FLORIDA, February 4, 2013 — People often talk about freedom. The thing of it is, though, everyone seems to have their own idea about the word means. What sort of freedom might our nation’s Constitution provide for?
On a more controversial note, what could be described as its greatest flaw? Which of its aspects may be described as most intriguing? Should we expect a Second Constitutional Convention to be held at some point?
In this second part of our discussion, Sanford Levinson shares his answers to the aforementioned questions. A law professor at the University of Texas, as well as the author of Framed: America’s 51 Constitutions and the Crisis of Governance, he is among our nation’s leading experts on constitutional law.
He also tells us a bit about his life and career.
Joseph F. Cotto: The term “freedom” means different things to as many people. What sort of freedom would you say that the Constitution provides for?
Dr. Sanford Levinson: There’s no way to answer this in anything short of a book! The short (and probably unhelpful) answer is that it should be read as providing a mixture of “negative liberties” (i.e., the right to be “left alone” from state intervention with regard, say, to almost all religious observance, speech, etc.) plus some “positive freedoms,” such as provision of education or health services, that make it possible for the individual to flourish rather than languish as the victim of unfortunate circumstances.
Cotto: From your standpoint, what is the Constitution’s greatest flaw?
Dr. Levinson: This is relatively easy: It’s Article V, which, by making it near impossible to amend the Constitution with regard to anything very important, also discourages any public conversation about potentially desirable constitutional reforms, because the very idea appears quixotic.
Cotto: Which aspect of the Constitution do you find to be most intriguing?
Dr. Levinson: It depends on the great issues of the moment. I have recently become interested in “federalism,” which I’m teaching (for the third time) now at UT and have taught about at Harvard.
Cotto: In your opinion, will a Second Constitutional Convention ever be held?
Dr. Levinson: I doubt it, because most people, on both the right and the left, are terrified that they wouldn’t control such a convention and that it would therefore “runaway” and end up suggesting the abolition of favorite rights or liberties. My practical hope is that some leading state will have a convention about its state constitution and demonstrate that a convention is really possible.
Cotto: Now that our discussion is at its end, many readers are probably wondering how it was that you came to be such a noted academic. Tell us a bit about your life and career.
Dr. Levinson: I can tell you about my background, but whether I’m a “noted academic” isn’t for me to proclaim. I have a PH.D. from Harvard and a law degree from Stanford, clerked for a federal district judge in Charlotte, North Carolina, and began my post-law-school teaching career at Princeton, where one of my students happened to be Elena Kagan. This turned out to be immensely important because she was extraordinarily kind and supportive when she became Dean, by inviting me to teach at the Harvard Law School during the semesters that my wife and I spend in Boston (since we spend most of the year in Austin, where I continue to teach at the University of Texas Law School).
Such prominence as I have is also probably linked to my article “The Embarrassing Second Amendment,” in the 1989 Yale Law Journal, probably the first article by a mainstream legal academic to be published in a prestigious law review that viewed the Second Amendment in a genuinely serious way.
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