Sanford Levinson was born June 17, 1941, in Hendersonville, North Carolina, into a Jewish family in the American South. He grows up watching a region that wraps its political order in scriptural authority, and he later turns that same eye on the civic scripture of the United States Constitution.
He takes a BA from Duke in 1962, a PhD in government from Harvard in 1969, and a JD from Stanford Law School in 1973. He trains as a political scientist before he trains as a lawyer. Political scientists ask where institutions come from and whom they serve. Lawyers treat the text as given. Levinson keeps the political scientist’s habit. He never accepts the lawyer’s premise that the Constitution’s authority is the starting point rather than the question.
He begins at Princeton’s Department of Politics. In 1980 he moves to the University of Texas School of Law in Austin, where he holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law. He also serves as Professor in the UT Department of Government. The dual appointment fits his temperament. He sits in the law school but keeps one foot in political science.
He visits Harvard regularly after 2004 and has taught at Yale, NYU, Georgetown, and Boston University. He teaches abroad in London, Paris, Jerusalem, Auckland, and Melbourne. From 1984 to 2016 he affiliates with the Shalom Hartman Institute in Jerusalem, a setting that sharpens his interest in law as sacred text and in the relation between religious and political authority. He holds fellowships at the Institute for Advanced Study at Princeton and at Harvard’s Ethics in the Professions Program. The American Academy of Arts and Sciences elects him in 2001. The Law and Courts Section of the American Political Science Association gives him its Lifetime Achievement Award in 2010.
Constitutional Faith, published in 1988 and reissued in a second edition in 2011, treats the Constitution as an object of civil religion. Americans do not simply obey the document. They revere it. They argue over its meaning the way Christians argue over scripture. Levinson builds a sustained analogy between constitutional interpretation and theological exegesis. The Protestant tradition grants every reader the right to interpret the sacred text. The Catholic tradition reserves that right to a central magisterium. American constitutionalism, in his account, lives with both impulses. Citizens and non-judicial officials can read the document for themselves, or they can defer to the Supreme Court as final arbiter. Judicial supremacy, he argues, reflects a choice of faith rather than a requirement of law.
That framing opens a line of attack he pursues for the rest of his career. If the Constitution’s authority depends on reverence, then reverence can be examined. Most legal scholars bracket the question. They fight over how to interpret the text, not over whether the text deserves its reverence in the first place. Levinson moves upstream.
Our Undemocratic Constitution, published in 2006, states the indictment plainly. The Constitution distorts democratic governance not by accident but by design. The Senate gives Wyoming the same two votes as California. The Electoral College can override the national popular vote. Article V makes amendment so difficult that the text cannot adapt without elaborate interpretive contortions. The presidential veto and other countermajoritarian features create choke points where minority coalitions block broadly supported action. Levinson calls these features undemocratic, and the word choice breaks a tacit rule in elite legal discourse, which usually treats the Constitution as legitimate even when its outcomes are bad.
The indictment extends further than most summaries suggest. He attacks the long lame-duck period between election and inauguration, arguing that the gap leaves the country exposed and lacks democratic warrant. He points to the Incompatibility Clause, which forbids members of Congress from serving in the executive branch, and contrasts it with parliamentary systems that fuse the two. The American separation, in his view, guarantees friction without guaranteeing accountability. He notes that the Constitution contains no clear procedure for handling national emergencies, which pushes presidents outside the law in moments of crisis and erodes the rule of law over time.
Article V receives his heaviest fire. He argues that the United States Constitution is among the hardest in the world to amend. Americans cannot change the text, so they lie about what it says. They stretch clauses past their meaning to make modern society function. Levinson calls the result constitutional rot. The dishonesty required to keep the old document running degrades the intellectual integrity of the legal profession and hides the true location of political choice.
“The Embarrassing Second Amendment,” published in the Yale Law Journal in 1989, applies the same method to gun rights. Liberal legal scholars at that time treat the Second Amendment as a dead letter linked to state militias. Levinson breaks with the position. He reads text, history, and structure and concludes that the amendment protects an individual right to bear arms. He identifies as a card-carrying member of the American Civil Liberties Union and does not own a gun, so his conclusion costs him allies. He writes the piece anyway. The argument rests on consistency. If liberals demand fidelity to constitutional text on free speech, they cannot ignore the text on firearms.
The article travels. The National Rifle Association cites it. Justice Clarence Thomas cites it. District of Columbia v. Heller draws on it. Levinson writes for coherence, and coherence carries the argument into hands he does not politically share. He cares more about whether the rules are honest than about which side wins on any given issue.
His engagement with presidential power follows the same structural grain. He worries about the imperial presidency, but he refuses the comforting story that expansion reflects only bad actors. The Commander-in-Chief Clause, the pardon power, the veto, and the absence of clear emergency limits all create openings for executive growth. Presidents who push through those openings do not deviate from the Constitution so much as respond to its incentives. His work on torture after 9/11 extends the point. Torture is not an aberration produced by rogue officials. Legal and institutional pressures under perceived emergency make it thinkable, then defensible.
Framed: America’s 51 Constitutions and the Crisis of Governance, published in 2012, opens a comparative front that many American constitutional scholars ignore. State constitutions are amended often. Some are rewritten wholesale. Americans already have practical experience with constitutional change and treat their state documents as working instruments rather than relics. The implication is quiet but radical. The rigidity of the federal text reflects a cultural choice, not an inherent necessity. If Americans can rework Texas, California, or New York, they can rework the national framework.
Levinson extends the comparison abroad. He points to the German Basic Law, which permits easier structural adjustment. He points to parliamentary systems that avoid the deadlock produced by American separation of powers. The comparison reframes American constitutional faith as a local inheritance rather than a universal model. Other thriving democracies run on different designs without catastrophe.
He collaborates widely, often across political lines. He debates and writes with Richard Epstein, a libertarian legal scholar, and the exchanges focus on whether the rules of the system hang together rather than on whose team benefits from them. He co-writes Democracy and Dysfunction with Jack Balkin in 2018. He co-edits Processes of Constitutional Decisionmaking, one of the most used constitutional law casebooks in American legal education, so his critique reaches law students through the same materials he criticizes. He co-edits The Oxford Handbook of the United States Constitution and Torture: A Collection. He writes regularly at Balkinization.
The work with his wife Cynthia Levinson marks a turn toward civic education. Fault Lines in the Constitution, published in 2017 and later adapted as a graphic novel, takes the structural critique out of the academic journals and into classrooms. It maps the features of the 1787 design that still crack the ground under contemporary American politics, from the Census to the vice presidency. Change requires a public literate enough in institutional design to demand it. The law reviews cannot carry that weight alone.
Levinson publishes roughly 450 articles, book reviews, and commentaries over his career. He writes in the New York Times, the Los Angeles Times, and a range of legal and general-audience outlets. He comments on Supreme Court nominations, same-sex marriage, and executive overreach across Democratic and Republican administrations. He is a proceduralist who cares whether the rules are coherent and honest, and he applies that standard wherever it leads.
He sits at the center of elite American legal academia. He holds a chair at a top public law school. He teaches at Harvard, Yale, NYU, Georgetown. He sits in the American Academy of Arts and Sciences. He edits the canonical casebook. From that perch he argues that the document underwriting the whole apparatus may no longer deserve obedience. Most elite scholars criticize outcomes, judges, or doctrines. They do not question the legitimacy of the constitutional order. Levinson questions it and keeps his seat at the table.
His call for a new constitutional convention follows from the rest of his work. If the document is structurally flawed and frozen, wholesale revision is the only serious remedy. The proposal circulates widely but rarely gains political traction. A convention might open every settled question at once, and the actors who understand the current rules have the most to lose. Stability serves incumbents. Critics treat the idea as interesting rather than urgent.
He treats the Constitution as a designed artifact rather than a revealed truth. He asks whom the design serves and whom it disadvantages. He tests his own side’s arguments as hard as he tests the other side’s. He prefers coherence to convenience, and he accepts the costs of that preference. He keeps the political scientist’s eye inside the law professor’s office.
He is now in his mid-80s. He continues to write, teach, and comment. The conditions he diagnosed in 2006 have sharpened. Population disparities between states have widened, which compounds the Senate’s distortions. The Electoral College has produced two popular-vote losers in the presidency within a generation. Polarization has made Article V more inert, not less. Executive power has grown across administrations. Each development feeds his core claim. The system cannot correct itself on the terms it provides.
His wife Cynthia Levinson writes award-winning nonfiction for children and young adults. Their daughter Meira teaches at the Harvard Graduate School of Education. Their daughter Rachel practices law at the Brennan Center for Justice. The family runs on teaching, writing, and public argument across generations.
Who does this person rely on for status, income, and protection?
Levinson is retired and presumably is financially stable. He holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas School of Law. The chair provides salary, research support, office, and tenure protection. It anchors everything else.
Around the chair sits a wider circle of institutional support. The elite law schools that host him as visiting professor give him reach and reinforce his standing: Harvard, Yale, NYU, Georgetown, Boston University. The American Academy of Arts and Sciences elected him in 2001. The American Law Institute counts him as a member. The Law and Courts Section of the American Political Science Association gave him its Lifetime Achievement Award in 2010. These honors travel with him as prestige capital.
The casebook Processes of Constitutional Decisionmaking pays and protects him in a particular way. Co-edited with Paul Brest, Jack Balkin, Akhil Reed Amar, and Reva Siegel, the book reaches law students across the country each year. Royalties matter, but the deeper value is structural. A scholar who co-edits the canonical casebook sits inside the core of the field no matter how unconventional his arguments get. The casebook is armor.
University presses and journals carry the rest. Yale Law Journal, Harvard University Press, Oxford University Press, Princeton University Press. The Shalom Hartman Institute in Jerusalem hosted him from 1984 to 2016 and connected his legal work to Jewish intellectual life. The New York Times and the Los Angeles Times publish his commentary when constitutional questions enter public debate.
Who does he need to attract or retain as allies?
He needs the liberal legal academy. That coalition gives him his readers, his co-authors, his casebook colleagues, and the book review space that keeps his work visible. Jack Balkin, Akhil Reed Amar, Reva Siegel, Mark Tushnet, and Mark Graber all share editorial or writing projects with him. Lose them and he loses the infrastructure of his public life.
He also needs cross-ideological credibility. His 1989 Second Amendment article breaks with liberal orthodoxy and gets cited by Clarence Thomas, the NRA, and the Heller majority. He writes with Richard Epstein. His work travels into Federalist Society panels and libertarian journals. He needs conservative and libertarian readers to treat him as honest, not as a partisan in disguise.
He needs law students. The casebook depends on faculty adopting it and students reading it. Trade book readers matter for Our Undemocratic Constitution and Framed. Younger audiences matter for Fault Lines in the Constitution.
He needs journalists and editors to treat him as the go-to voice on constitutional dysfunction. That position gives him op-ed space, radio interviews, and a seat in national debates.
What beliefs and signals mark membership in his coalition?
Serious engagement with constitutional text, history, and structure. Members of his coalition do not dismiss the document. They argue about it. That signal lets him criticize the Constitution without being read as anti-constitutional.
Procedural commitments. He signals that he cares whether the rules hang together, not whether they favor his side. The Second Amendment article is the clearest proof of this signal. He pays a partisan cost to show his reasoning is not captured.
Liberal and civil libertarian affiliation, calibrated. American Civil Liberties Union membership. Concern about torture, executive overreach, and minority rule. But not activist-left. He writes as a reformer, not a revolutionary. He wants a new convention, not a rupture.
Jewish intellectual tradition. The Hartman Institute affiliation, the analogies to scriptural interpretation, the Protestant-Catholic framing of constitutional faith. These signals place him inside a recognizable intellectual lineage.
Comparative and empirical habits. He points to state constitutions, to the German Basic Law, to parliamentary systems. Members of his coalition treat institutional design as a serious subject, not a regional curiosity.
Willingness to criticize fellow liberals. The Second Amendment piece, the attack on liberal constitutional reverence, the refusal to treat Democratic presidents gently on executive power. These moves mark him as a scholar rather than a team player, and the mark is itself coalitional. It tells a certain kind of reader that he can be trusted.
What would he have to give up, in status, income, or belonging, if he changed his public position?
The hardest shift might be the one most people assume costs him least: dropping the critique. If Levinson became a conventional defender of the Constitution, he might lose his distinctive voice. The critique is his niche. His books sell because they say what other elite scholars will not say. Editors solicit his op-eds because they know what he argues. Take away the argument and he becomes one more senior professor at a good law school. He loses the reason people cite him.
Moving further left might cost him more tangibly. If he called for illegal resistance, secession, or the collapse of the system he criticizes, he might lose the casebook co-editors, the elite visiting appointments, the Academy membership, and the newspaper platforms. The academy tolerates reform talk. It does not tolerate revolution talk. His critique works because it stays inside the bounds of legitimate scholarly discourse.
Moving right might cost him differently. If he dropped his liberal affiliations and became a conservative originalist, he might lose his natural audience. He might gain a Federalist Society audience, but the trade might cut him off from the network that publishes and cites him.
Partisan capture in either direction might cost him his cross-ideological credibility. The Thomas citation, the Epstein collaboration, and the Heller influence all rest on readers treating him as principled rather than tribal. A scholar who becomes predictable loses the power to surprise, and surprise gives his arguments their traction.
The lightest cost sits at the edge of the spectrum his coalition permits. He can keep writing about constitutional dysfunction. He can keep proposing a convention he knows will not happen. He can keep citing comparative examples. None of that threatens his standing.
Levinson performs the dissent role the coalition allows. A scholar making the same arguments without the prestige markers never gets hired, never gets read, never becomes Sanford Levinson.
Levinson’s Constitutional Faith already grasps half of what Turner describes. Levinson sees that American reverence for the Constitution operates below the level of explicit argument. Lawyers do not cite a rule that tells them to revere the document. They simply do. The reverence shows up in tone, in the choice of what to question and what to leave alone, in the assumption that the 1787 design deserves the last word. Levinson calls this faith, and the religious analogy captures part of the phenomenon. Turner’s frame captures the rest. Faith suggests conscious belief. Tacit knowledge suggests something more ordinary and more pervasive. Lawyers do not believe in the Constitution the way a congregant believes in scripture. They operate inside a professional culture that makes certain questions thinkable and others unthinkable, and most of that culture never surfaces in doctrine.
This reframing helps explain why Levinson’s critique lands so awkwardly inside the legal academy. He is not violating a stated rule. He is violating an unstated one. The tacit rule in elite constitutional law says: criticize outcomes, criticize doctrines, criticize judges, but do not question the legitimacy of the document. The rule appears nowhere in the casebooks. It cannot be cited. But every scholar who has been trained in the field knows it, and the field polices it through a thousand small signals. Tone. Citation practice. What gets reviewed favorably. What gets dismissed as provocation. Levinson crosses the tacit line repeatedly and gets treated as interesting rather than incorporated, which is exactly how tacit norms discipline a violator who cannot be formally excluded.
A constitutional convention would force tacit knowledge into the open. It would require Americans to state, in explicit terms, what the Constitution should do, whom it should serve, and how its institutions should fit together. Most of the working understanding of American constitutionalism cannot survive that translation. The compromises that hold the system together depend on not being stated. A convention threatens the tacit layer itself. The legal profession, the judiciary, and the political class resist the proposal not because they have refuted it but because they sense, without needing to articulate it, that surfacing the tacit level would dissolve their authority.
The Second Amendment article fits the pattern from the other direction. Levinson writes the piece because he takes the explicit text seriously and refuses to bow to the tacit liberal consensus that the amendment is dead. The liberal consensus had no written doctrine behind it. It was a professional sensibility, transmitted through graduate seminars, law review culture, and the selection of which cases seemed worth fighting. Levinson treated the sensibility as something that could be questioned. The article’s travel into Thomas’s opinions and the Heller majority reflects what happens when a tacit boundary gets named. Once someone writes the argument down, the boundary no longer holds.
Levinson was trained first as a political scientist at Harvard before taking his JD at Stanford. Political scientists study institutions from outside. Lawyers work inside them. Levinson’s unusual angle comes from entering the law school with the political scientist’s habit of noticing what lawyers take for granted. Turner would describe this as importing a different tacit tradition into a field that had its own. The collision produces Levinson’s distinctive voice. He sees what his colleagues have trained themselves not to see, because his training came from a neighboring discipline with different unspoken rules.
His work on state constitutions in Framed applies the same move. State constitutions are treated casually. They are amended often and rewritten without fuss. Federal constitutional culture treats them as lesser documents, and the treatment is tacit, not argued. Levinson points at the comparison and shows that American constitutionalism already contains a practical model of flexibility. The elite federal culture had never confronted the comparison because the tacit hierarchy ranked state constitutions below notice. Naming the hierarchy weakens it.
The comparative work extends the same method abroad. The German Basic Law, parliamentary systems, and other democratic constitutions all run on designs that American legal culture brackets as irrelevant. The bracketing is tacit. Levinson insists on the comparison and forces the American tacit assumption into the open, where it looks parochial.
Turner also helps explain the limits of Levinson’s influence. A scholar who names tacit knowledge does not thereby abolish it. The legal academy can absorb Levinson’s arguments without changing its practice, because the practice runs on the tacit layer he criticizes, and criticism at the explicit level rarely reaches that layer. Levinson becomes canonical as a dissenter. His books get assigned. His articles get cited. The casebook he co-edits teaches students to argue about the Constitution in ways that preserve its authority. The tacit order adapts by incorporating its most articulate critic without yielding to him.
This gives Levinson’s career its shape. He keeps writing because the problem he names cannot be solved by being named. Each new crisis, each disputed election, each expansion of executive power, each Electoral College inversion reactivates the tacit commitments he works against. He has to make the case again because the case operates at a level where making it does not settle it. Critique of tacit knowledge is perpetual labor. It cannot be completed.
His collaboration with Cynthia Levinson on Fault Lines in the Constitution reflects an implicit recognition of the problem. Tacit commitments transmit through early training. Law students absorb the reverence before they learn to argue about it. To shift the tacit layer, Levinson has to reach readers before they have been formed by it. The graphic novel is not a lowering of his standards. It is an attempt to intervene upstream of the professional socialization that produces the culture he criticizes.
Originalists and living constitutionalists both operate inside the tacit culture of reverence. They differ on method, not on whether the document deserves fidelity. Levinson is alone among major constitutional scholars in treating the reverence itself as the subject. Turner would say that Levinson is working at the level where the field cannot easily follow him, because the field’s competence runs on the assumptions he is examining.
The result is a career of half-incorporation. He holds a chair, edits the casebook, sits in the Academy, and visits the elite schools. He also keeps writing arguments that the tacit culture cannot absorb without transforming.
Constitutional law is organized around argument. Students learn to cite text, history, doctrine, and precedent. Scholars write thousands of pages a year. Supreme Court opinions run long, footnoted, and laden with authority. All of it presents as reasoning. Much of it is ritual. Originalists signal loyalty to one coalition. Living constitutionalists signal loyalty to another. The arguments circulate among people who already agree. The cross-tribal arguments mostly fail to persuade. The field keeps producing output because output is the point, not because anyone expects the output to change anyone’s mind.
Levinson enters this field as a strange case. He looks like the person who carries practical rationality into a domain that does not reward it. His books read as serious attempts to persuade. He states premises, marshals evidence, addresses counterarguments, and proposes remedies. He does not chant. He does not nutpick. He refuses the easiest tribal moves. When liberal constitutional scholars treated the Second Amendment as a dead letter, Levinson read the text and concluded the amendment protects an individual right. He paid the cost and wrote the article. He acted as if argument might settle the question.
The argument did not persuade the liberal coalition. Most liberal legal scholars kept their position until a conservative Supreme Court majority in District of Columbia v. Heller rendered the debate academic. Conservative allies picked up Levinson’s article as a weapon. The National Rifle Association cited him. Justice Clarence Thomas cited him. The Heller majority drew on his reasoning. Levinson’s argument traveled, but it traveled as ammunition, not as persuasion. The people who cited him did not change their views because of him. They already held those views. They used his article to strengthen a position they had taken for tribal reasons and now wanted to dress in respectable scholarship.
Coalitions need high-minded dressing for positions they hold on other grounds. Levinson supplied the dressing. He did not create the coalition or shift it. The liberal coalition that lost the Second Amendment debate did not lose because Levinson out-argued them. It lost because demographics, politics, and judicial appointments shifted the field. Levinson’s article became useful once the shift was underway.
Constitutional Faith sees that American constitutional argument runs on reverence rather than reason. He notices that scholars argue inside a frame they rarely question. He draws the religious analogy and treats the Constitution as civil scripture. What he does not quite say is that the reverence serves a coalition function. The American political order needs the Constitution treated as sacred because the sacredness stabilizes the authority of the people who interpret it. Judges, law professors, and officials all benefit from the reverence. Questioning the document threatens their positions. Faith is not just a cultural habit. It is a coalition strategy. The people who maintain it gain from its maintenance.
Our Undemocratic Constitution plays the role of real argument in a pseudoargument field. Levinson lays out the structural defects: the Senate’s equal state representation, the Electoral College, Article V‘s rigidity, the veto, the lame-duck period, the absence of an emergency procedure. He writes as if stating the case clearly might change the conversation. Two decades later, the case has not changed. The arguments Levinson made in 2006 remain true in 2026. The Senate still tilts toward small states. The Electoral College still inverts popular votes. Article V still blocks amendment. No serious political coalition has adopted his program.
Levinson’s proposal asks coalitions to persuade themselves to lose power. Small-state senators benefit from equal representation. Republican presidential coalitions benefit from the Electoral College. The federal judiciary benefits from a frozen text that only they can interpret. These actors will not be persuaded by Levinson’s arguments because persuasion is not the game. The game is coalition maintenance, and Levinson’s proposal threatens several coalitions at once. His argument fails not because it is wrong but because rightness is not what decides the outcome.
The pattern extends to his other work. His critique of presidential power does not shrink presidential power. His work on torture did not prevent torture. His writing on the Electoral College has not moved the country toward the National Popular Vote Compact or a constitutional amendment. His call for a convention sits on the shelf. Each time a crisis hits, Levinson’s arguments resurface as useful framing for journalists and commentators. Then the crisis passes, and the arguments return to the shelf. The arguments are not built to win. They are built to circulate.
Levinson’s casebook complicates the picture. Processes of Constitutional Decisionmaking, co-edited with Paul Brest, Jack Balkin, Akhil Reed Amar, and Reva Siegel, teaches law students how to argue about the Constitution. The casebook trains new entrants to play the pseudoargument game. Students learn the rituals of text, history, doctrine, and precedent. They learn which moves count as serious and which count as amateur. They absorb the tacit rules that Levinson elsewhere criticizes. His critique and his pedagogy sit in uneasy relation. He writes books attacking constitutional faith and edits a casebook that transmits the culture of constitutional faith to the next generation.
A constitutional convention presumes that Americans could sit down and persuade each other about how the country should be governed. That presumption is bullshit. Americans do not persuade each other on political questions. They rally, signal, and attack. A convention might become another arena for coalition combat, not a forum for rational design. Levinson’s proposal assumes a kind of deliberation that modern American politics does not supply. The proposal is intellectually serious and politically naive in the same move.
His Second Amendment article points to a narrower kind of argument that sometimes works. Levinson persuaded a small number of scholars, judges, and advocates that the liberal dismissal of the Second Amendment was intellectually weak. Those scholars were not the core of the liberal coalition. They were marginal figures, or conservatives looking for liberal cover, or younger scholars unformed by the prior consensus. Real argument works on people who have not yet been captured by coalition loyalty or who sit between coalitions. Levinson reaches those people. He does not reach the committed partisans.
Levinson looks like a real arguer marooned in a pseudoargument field. His writing persuades people who can still be persuaded: graduate students, crossover readers, foreign scholars, the small tribe of proceduralists who care more about consistency than outcomes. His writing does not persuade the coalitions that hold power. He keeps writing because the persuasion at the edges is enough to sustain the project, and because the production of argument serves functions beyond persuasion. It produces identity. It produces a community. It produces status inside a micro-coalition of people who value honest structural critique.
Levinson’s position is coalitional, even if his coalition is smaller and weirder than the mainstream ones. The proceduralist scholar who writes across ideological lines performs a specific signal. The signal says: I am the kind of scholar who follows the argument wherever it leads. That signal rallies a particular kind of reader and repels others. The Balkinization blog, the casebook co-editorship, the cross-ideological citations, the Academy membership, and the op-ed platforms all sustain the coalition Levinson belongs to. He is not outside the game. He plays a different version of it, against a different opponent, for a different audience.
If Levinson’s arguments were about persuasion, we should see people changing their positions after reading him. We should see senators from small states acknowledging the Senate’s distortion and voting to dilute their own power. We should see liberal scholars conceding the Second Amendment point before Heller forced the concession. We should see state legislatures moving toward Article V petitions. We should see public opinion shifting on the Electoral College in response to his work. None of this has happened in scale. What has happened is that Levinson has become a respected reference point, a name to cite when commentators want to signal structural seriousness. He circulates as authority rather than as argument.
Argument can persuade in narrow, concrete, low-stakes domains. Legal argument inside specific cases sometimes fits this pattern. Judges occasionally change their minds based on briefs. Lawyers sometimes concede points during oral argument. The micro-level practice of law contains pockets of real reasoning. Levinson’s work straddles the line. His doctrinal contributions in specific areas sometimes land. His structural contributions to large political questions almost never do. Concrete tractable questions admit persuasion. Coalitional questions do not.
Levinson’s deepest frustration comes from working in a field that presents as reasoning while operating as tribal performance. He writes books arguing that the emperor has no clothes, and the emperor keeps walking. He notices the faith and describes the faith, but he cannot break the faith because the faith does not rest on the arguments that produced it. The reverence Americans feel for the Constitution was not installed by reasoning, so reasoning cannot uninstall it. Levinson is trying to persuade his way out of a coalition problem. The coalition will not be persuaded. It can only be displaced.
That leaves Levinson’s career with an unusual shape. He produces honest argument in a field that rewards tribal argument. He reaches the small audience that values honesty. He keeps his seat at the table because his honesty does not threaten any coalition enough to warrant exclusion. He proposes remedies that will not be adopted. He keeps writing because the writing sustains a way of being a scholar that he prefers to the alternatives.
Randall Collins’s Interaction Ritual Chains
The Constitution is a sacred object in the technical sense. It has been charged through thousands of interaction rituals over two and a half centuries. Inaugurations. Supreme Court oral arguments. Citizenship ceremonies. Independence Day readings. Lincoln at Gettysburg and Cooper Union. Marshall in Marbury. Warren announcing Brown. Every televised swearing-in, every witness raising the right hand, every congressional debate that invokes the Framers, every judicial opinion that quotes a clause. The document accumulates emotional energy through repeated ritual use. It does not hold Americans through belief. It holds them through the stored charge of the rituals that keep recharging it.
The Watergate hearings produced televised co-presence on a national scale. Barriers to outsiders, since only certain senators could sit on the committee and only certain witnesses could testify. Mutual focus of attention, with millions watching the same broadcast at the same hours. Shared mood, building through the summer of 1973. The ritual produced enormous emotional energy. The Constitution got recharged. Post-Watergate morality was the emotional energy of the ritual radiating outward into legislation, reform movements, professional codes, and popular culture. Levinson watched this happen and drew the correct conclusion in Constitutional Faith. He underestimated how such rituals work. Collins adds the machinery Levinson lacks.
Law school classrooms run as interaction rituals. Students and professors gather in mutual focus on constitutional text. Barriers keep outsiders out. The mood is serious. The Constitution sits on the table as sacred object. Each class charges the object further for the students present. Levinson co-edits the casebook that scripts these rituals, Processes of Constitutional Decisionmaking with Paul Brest, Jack Balkin, Akhil Reed Amar, and Reva Siegel. He writes the liturgy he criticizes. Collins would note this as intellectually necessary rather than hypocritical. A scholar of the sacred who refused to participate in the rituals would lose the status that makes his critique audible. The casebook is Levinson’s price of admission to the attention space from which he can then criticize the sacred.
Supreme Court oral argument is another high-intensity interaction ritual. Nine justices, advocates at the lectern, ornate chamber, hushed audience, black robes, standardized liturgy (“May it please the Court”), ceremonial entry and exit. The ritual generates emotional energy that charges Supreme Court opinions as sacred pronouncements. Levinson stands outside this ritual as a scholar rather than an advocate. His critique arrives through books and law review articles, which are lower-intensity rituals. A book reaches one reader at a time, without co-presence, without synchronized attention, without shared mood. High-intensity rituals charge their objects. Low-intensity rituals struggle to discharge them. Levinson writes in the wrong ritual register to accomplish his stated goal.
Article V makes sense through Collins in a way it does not through pure structural analysis. Levinson points to the supermajority requirements as the obstacle to amendment. Collins adds a deeper problem. Amendment would require generating enough emotional energy to override the energy already stored in the existing text. The existing text carries the charge of every ritual that has ever invoked it. A new amendment starts with no charge at all. The successful amendments in American history rode on crisis rituals that temporarily produced emotional energy large enough to break through: the Civil War and Reconstruction amendments, the Progressive-era amendments, the Nineteenth Amendment following the suffrage movement. Each required a sustained ritual buildup before the text could be changed. Levinson asks Americans to amend the document or convene a new convention without the crisis rituals that have historically been needed. The proposal sits on the page. No ritual carries it.
Levinson shows up in casebooks because Amar and Balkin and Siegel show up in his casebook. The reciprocity keeps his work in circulation. A scholar outside the network with the same arguments might be forgotten. Levinson cannot be forgotten, because forgetting him would require the whole network to disperse, and the network has other reasons to stay together.
Collins distinguishes status rituals from power rituals. Status rituals produce reputation, deference, respect, standing. Power rituals produce the capacity to give orders and see them obeyed. Levinson’s career is a pure status ritual chain. Every honor, every visiting appointment, every Academy election, every prize produces more status. None produces power. The American Law Institute, the American Academy of Arts and Sciences, the Law and Courts Section Lifetime Achievement Award, the Scribes Award for Constitutional Faith. These are all status confirmations. They give him access to more status rituals. They do not give him any ability to change the document he criticizes. This is the condition of elite academic life. The academy produces status at industrial scale and has no direct route from status to power. Levinson made the trade available to him.
The Senate as interaction ritual deserves particular attention. The Senate runs daily rituals that generate emotional energy for the institution: floor speeches, filibusters, committee hearings, the vice president presiding, the gavel, the oath, the chamber itself. Senators participating in the rituals get charged with the body’s emotional energy. They come to believe the Senate is essential, dignified, wise. Outside observers watching the rituals, when they go well, tend to agree. Levinson’s structural critique of the Senate has to compete with the Senate’s continuous ritual production. He writes books criticizing equal state representation. The Senate conducts its rituals. Rituals beat books. This is why small-state senators do not find Levinson’s arguments persuasive. The senators are inside the ritual that Levinson views from outside. They feel what the ritual produces. He describes what he observes.
Crisis periods generate high-energy rituals that can temporarily suspend ordinary politics. Alexander’s Watergate essay describes one such period. Collins would add that the Saturday Night Massacre was a ritual rupture: the expectation of one ritual (Cox’s ongoing investigation) was violated by another (Nixon’s firing order), producing a massive burst of emotional energy that flooded outward in three million letters over a weekend. Levinson’s arguments sit outside crisis rituals. His critique of the Electoral College does not discharge during the 2000 recount or 2016 election because no ritual carries his script. The rituals that do unfold during such crises follow the civil religion Levinson criticizes. Networks rehearse the continuity of American democracy. Editorialists invoke the Framers. Judges preserve the institutions. The ritual energy flows into the existing channels because those channels have been cut by two centuries of prior rituals. Levinson has no channels cut for his script to flow through.
The 1989 Second Amendment article got more traction than the structural work because it fed into an existing ritual chain. The gun rights movement was already producing high-energy rituals: NRA conventions, shooting ranges, Second Amendment rallies, gun show gatherings. Levinson’s argument arrived as intellectual ammunition for a movement that already had ritual infrastructure. The movement absorbed the argument and carried it forward. District of Columbia v. Heller was the eventual ritual culmination. The Second Amendment movement had a ritual chain ready to receive his work. The constitutional reform movement does not exist as a ritual chain. Levinson’s structural arguments have nowhere to go.
A convention would be a massive interaction ritual. To generate the emotional energy needed to hold a convention, Americans would need a preparatory chain of smaller rituals: marches, rallies, constitutional conventions at the state level, civic meetings, televised debates about structural reform. The chain would have to build emotional energy to the point where a national convention became ritually possible. No such chain exists. Levinson writes books. Conferences discuss the books. The conferences are low-energy rituals that produce modest emotional energy among a small group of legal academics. The energy dissipates quickly. The convention stays theoretical because the ritual infrastructure needed to carry it does not exist, and Levinson’s books cannot build it alone.
Reaching younger audiences through accessible formats is an attempt to begin a new ritual chain. A graphic novel in a classroom with a teacher leading discussion is a higher-intensity ritual than a law review article read alone. The adaptation tries to move the critique into settings where interaction rituals can charge it. The strategy is sound. The problem is scale. The ritual chain Levinson would need to produce constitutional reform would have to reach millions of Americans across decades. One book and one classroom cannot do it. But Levinson understands the problem intuitively, which is why he turned toward the popular adaptation in the first place.
When students read his casebook, when law clerks cite his articles, when journalists call him for comment, when conference organizers invite him to keynote, they perform small deference rituals that recharge his status. He in turn performs deference rituals toward the profession: he shows up at the conferences, he writes the recommendation letters, he reviews the manuscripts, he attends the funerals of colleagues. The chain of deference produces his standing. It also binds him to the profession in ways that constrain his critique. He cannot attack the legal academy as a whole because he depends on its rituals for his emotional energy. He can attack the document. He cannot attack the guild.
The emotional register of Levinson’s later work fits Collins’s account of ritual depletion. Scholars who run the same ritual chain for decades eventually experience emotional energy decline. The novelty fades. The audience has heard the argument. The surprise is gone. Levinson’s recent writing has a slightly more resigned tone than his 2006 Our Undemocratic Constitution. He keeps making the case, but the case has been made. A scholar whose whole life has been organized around a particular ritual chain cannot easily exit the chain. Exit would mean losing the emotional energy the chain supplies. Levinson keeps writing because writing is where his emotional energy still comes from, even if the marginal return on each new book is lower than it was decades ago.
People follow the feelings produced by their rituals rather than the conclusions reached by their reasoning. Levinson supplies reasoning. His audience has feelings produced by American civil religion. The feelings beat the reasoning. Emotional energy is what humans run on, and Levinson’s reasoning arrives without the ritual infrastructure to generate competing emotional energy. A charismatic movement leader could do what Levinson cannot. Levinson is a scholar, not a movement leader, and his career is a chain of status rituals rather than power rituals, so the conversion from argument to action never happens.
The Constitution holds because it is charged with emotional energy accumulated through centuries of ritual use. Levinson sees the charge clearly. He describes the rituals. He names the faith. He cannot discharge the object, because discharge would require rituals larger than the ones he can stage from his chair at the University of Texas. The civil religion rolls on. His books sit on shelves inside the library of the religion he criticizes. The religion incorporates him as one of its more interesting dissenters, which is what religions do with dissenters whose dissent does not threaten the ritual infrastructure. He will keep writing until the emotional energy supply from his network runs out. The network will keep supplying it. That is the interaction ritual chain of a senior American legal scholar, and Levinson has run it as well as any scholar of his generation has.
The first is the insider who attacks the inside. Levinson holds the W. St. John Garwood Centennial Chair at the University of Texas School of Law. He visits Harvard regularly, sits in the American Academy of Arts and Sciences, co-edits the canonical constitutional law casebook, and places his op-eds in the New York Times and the Los Angeles Times. No one is more inside than he is. He uses the position to argue that the Constitution itself may not deserve obedience in its current form. The critique lands harder because it comes from the center. An outsider saying the same thing would be dismissed. Levinson’s location inside the prestige structure functions as a costly signal that his critique is not sour grapes. He has the honors. He could coast. He chooses to destabilize the foundations instead. The audience reads this as integrity rather than strategy, which is what makes it work.
The second paradox is the authentic rebel who represents the group. The 1989 Yale Law Journal article on the Second Amendment breaks with liberal legal orthodoxy. Levinson carries a card in the American Civil Liberties Union and does not own a gun. He reads the text and concludes the amendment protects an individual right. He pays the partisan cost. Justice Thomas cites him. The NRA cites him. Heller draws on him. Levinson demonstrates, at real cost to his coalition standing, that he is not captured by tribal loyalty. The demonstration then generates durable cross-ideological credibility that he can spend for decades afterward. Federalist Society panels invite him. Libertarian scholars co-write with him. Richard Epstein debates him as a worthy opponent rather than a partisan adversary. The single act of breaking with his coalition bought him the platform from which he can keep criticizing his coalition for the rest of his career.
The third paradox is the scholar who competes to be above competition. Levinson presents his position as what serious constitutional thought looks like when it stops evading its own standards. He is not one scholar among others with a particular view. He is the scholar willing to ask the question everyone else brackets. This is a large status claim delivered in the vocabulary of humility. He frames himself as the proceduralist who cares only whether the rules hang together, who will follow argument wherever it leads, who has no stake in outcomes. The framing converts a contested intellectual position into the natural expression of scholarly honesty. Rivals who disagree are not offering different legitimate approaches. They are performing the reverence he has stopped performing.
The fourth paradox is wanting reform without appearing to want power. He calls for a constitutional convention. A convention would redistribute enormous authority. His call is one of the most ambitious political projects any living American legal scholar has proposed. Yet he presents the proposal as civic duty rather than ambition. The convention he wants would not install him in any particular office. He asks for institutional change without personal benefit. The absence of personal benefit is what makes the proposal charismatic. He signals that his motives are pure because the proposal does not obviously enrich him. The social paradoxes paper adds a layer: the proposal also cannot be enacted, so the signaling costs nothing beyond writing the books. He gets credit for wanting the reform without having to live with the consequences of having achieved it.
So far Levinson looks charismatic. Why has his charisma not converted into the outcomes charisma typically produces? Charismatic figures appear to resolve tensions their audiences cannot resolve. The resolution is what generates the projection of exceptional qualities onto the figure. Levinson’s audience carries a specific tension. They want to believe the American constitutional order is legitimate and democratic. They notice that it produces minority rule, legislative paralysis, and executive overreach. They want resolution of this gap. Levinson offers a partial resolution: you can love democracy and criticize the document. You do not have to choose between reverence and reform. This is a real service to his audience. It lets them maintain their civic identity while acknowledging the problems.
But the resolution stops short of what charisma typically provides. A fully charismatic figure would make the audience demand the convention. Levinson makes them willing to read his books. He raises consciousness without producing action. The audience gets the intellectual satisfaction of seeing the problem named without the political burden of having to solve it. This is closer to what Pinsof, in the earlier Horwitz and Wakefield analyses, calls charismatic inertness. Levinson sustains the paradox without dissolving it. His readers leave his books better informed and no more mobilized.
Levinson’s project is built on making concealment visible. He exposes the civil religion as civil religion. He calls constitutional faith by its name. He tells his readers that reverence for the document is a cultural performance rather than a rational conclusion. This is diagnostically sharp. It is also charismatically self-defeating. A prophet of a new religion cannot begin by explaining that religions are cultural performances. The moment you show the audience how the trick works, you cannot perform the trick on them. Levinson has spent forty years showing the audience how the trick works. He cannot now become the magician who makes them believe in a new document.
Levinson tells his audience that constitutional argument runs on reverence rather than reason. He tells them his own arguments may not persuade anyone whose coalition stands to lose from them. His honesty about the structure of the exchange prevents the exchange from working at full charismatic power. His readers know he knows that they know the arguments will not prevail. The mutual knowledge makes the encounter a ritual of shared pessimism rather than a mobilization.
Levinson personifies the tension between procedural liberalism and substantive democracy. Procedural liberals revere the Constitution because it secures their preferred outcomes most of the time. When it does not, they face a choice: defend the procedure and accept the outcome, or attack the procedure and expose their substantive preference. Levinson refuses the choice. He attacks the procedure on procedural grounds. He says the document fails its own stated democratic commitments. This is elegant, and it is why he remains readable. It also means his critique cannot mobilize a coalition. Procedural liberals who read him agree with his diagnosis and continue to revere the document, because they have no better instrument for their substantive commitments. Conservatives who read him cherry-pick his arguments for their uses, as Thomas did with the Second Amendment article. Nobody who matters politically is moved to join his convention project.
The standard case: both parties benefit from concealment and neither examines it. The Levinson case: both parties benefit from acknowledgment and neither acts on it. His readers get to be the kind of people who read Sanford Levinson. They get to hold the enlightened position that the Constitution is flawed. Levinson gets the readers and the royalties and the standing. Nobody has to do anything. The arrangement is stable precisely because the acknowledgment replaces action rather than producing it. The readers who appreciate Levinson signal intellectual seriousness to each other. The signaling is the point. Levinson supplies the material, and the readers supply the audience, and both sides get what they actually want, which is a small high-status community of people who know what is wrong with the document, rather than a political movement to change it.
The Second Amendment article remains his most charismatically successful moment because it produced an outcome. He paid a coalition cost. The payment registered. The argument traveled. The Court eventually ruled his way. Charismatic paradoxes succeed when the speaker pays visible costs that the audience can verify. Levinson paid the cost, and the audience verified it, and the authority followed. He never reproduced the success on the structural questions because he never paid a comparable coalition cost on them. He attacks the Constitution in ways that cost him nothing in his primary coalition. Liberal legal scholars mostly agree with his diagnoses. He is not breaking with his tribe on the Senate or the Electoral College. He is speaking the tribe’s half-articulated discontent. That is why the structural work has less charismatic force than the Second Amendment article. He is not transgressing on the structural side. He is articulating.
Coalition life generates tensions that cannot be solved at the level they arise. Levinson’s tension is this: a liberal constitutional order legitimated by a document that produces illiberal outcomes. The tension cannot be solved inside the existing order because the existing order depends on reverence for the document that produces the tension. Levinson keeps naming the tension. His readers keep reading the naming. Neither side can break out of the loop. He writes more books. They read them. The Senate stays the same. The Electoral College stays the same. Article V stays the same. The Constitution stays sacred.
Levinson attacks the system from the inside. An outsider saying the same thing would be dismissed. Levinson’s location inside the prestige structure functions as a costly signal that his critique is not sour grapes. He has the honors. He could coast. He destabilizes the foundations instead. The audience reads this as integrity rather than strategy, which is what makes it work.
The second paradox is the authentic rebel who represents the group. The 1989 Yale Law Journal article on the Second Amendment breaks with liberal legal orthodoxy. Levinson carries a card in the American Civil Liberties Union and does not own a gun. He reads the text and concludes the amendment protects an individual right. He pays the partisan cost. Justice Thomas cites him. The NRA cites him. Heller draws on him. Levinson demonstrates, at real cost to his coalition standing, that he is not captured by tribal loyalty. The demonstration then generates durable cross-ideological credibility that he can spend for decades afterward. Federalist Society panels invite him. Libertarian scholars co-write with him. Richard Epstein debates him as a worthy opponent rather than a partisan adversary. The single act of breaking with his coalition bought him the platform from which he can keep criticizing his coalition for the rest of his career.
The third paradox is the scholar who competes to be above competition. Levinson presents his position as what serious constitutional thought looks like when it stops evading its own standards. He is not one scholar among others with a particular view. He is the scholar willing to ask the question everyone else brackets. This is a large status claim delivered in the vocabulary of humility. He frames himself as the proceduralist who cares only whether the rules hang together, who follows argument wherever it leads, who has no stake in outcomes. The framing converts a contested intellectual position into the natural expression of scholarly honesty. Rivals who disagree are not offering different legitimate approaches. They are performing the reverence he has stopped performing.
The fourth paradox is wanting reform without appearing to want power. He calls for a constitutional convention. A convention would redistribute enormous authority. His call is one of the more ambitious political projects any living American legal scholar has proposed. Yet he presents the proposal as civic duty rather than ambition. The convention he wants would not install him in any particular office. He asks for institutional change without personal benefit. The absence of personal benefit is what makes the proposal charismatic. He signals that his motives are pure because the proposal does not obviously enrich him. The proposal also cannot be enacted, so the signaling costs nothing beyond writing the books. He gets credit for wanting the reform without having to live with the consequences of having achieved it.
The fifth paradox is cross-ideological credibility through selective loyalty. Levinson writes with Jack Balkin on the left and debates Richard Epstein on the libertarian right. He gets cited by Clarence Thomas and by liberal law professors. He maintains his ACLU membership and his Democratic-leaning politics while producing arguments that conservatives can use. Conservative readers infer that Levinson is credible because liberal readers endorse him. Liberal readers infer that Levinson is credible because conservatives cite him. Each coalition uses the other’s endorsement as verification. Levinson supplies the cross-coalition material that allows each side to read him as principled. The signal works because neither side needs to examine why it works. Symbiotic deception at the coalition level.
The ceiling appears when we ask why his charisma has not converted into the outcomes charisma typically produces.
Charismatic figures appear to resolve tensions their audiences cannot resolve. The resolution is what generates the projection of exceptional qualities onto the figure. Levinson’s audience carries a specific tension. They want to believe the American constitutional order is legitimate and democratic. They notice that it produces minority rule, legislative paralysis, and executive overreach. They want resolution of this gap. Levinson offers a partial resolution. You can love democracy and criticize the document. You do not have to choose between reverence and reform. This is a real service to his audience. It lets them maintain their civic identity while acknowledging the problems.
Charismatic exchanges run on layered ignorance. The speaker does not quite know he is pursuing status. The audience does not quite know it is conferring status. The concealment operates on both sides, which is what lets the signal register as genuine rather than strategic. Levinson has punctured this layering in his own case. He tells his audience that constitutional argument runs on reverence rather than reason. He tells them his own arguments may not persuade anyone whose coalition stands to lose from them. His honesty about the structure of the exchange prevents the exchange from working at full charismatic power. His readers know he knows that they know the arguments will not prevail. The mutual knowledge makes the encounter a ritual of shared pessimism rather than a mobilization.
The social paradoxes paper adds a specific observation about figures who personify coalition tensions without resolving them. Levinson personifies the tension between procedural liberalism and substantive democracy. Procedural liberals revere the Constitution because it secures their preferred outcomes most of the time. When it does not, they face a choice. Defend the procedure and accept the outcome, or attack the procedure and expose their substantive preference. Levinson refuses the choice. He attacks the procedure on procedural grounds. He says the document fails its own stated democratic commitments. This is elegant, and it is why he remains readable. It also means his critique cannot mobilize a coalition. Procedural liberals who read him agree with his diagnosis and continue to revere the document, because they have no better instrument for their substantive commitments. Conservatives who read him cherry-pick his arguments for their uses, as Thomas did with the Second Amendment article. Nobody who matters politically is moved to join his convention project.
The standard case has both parties benefit from concealment and neither examines it. The Levinson case has both parties benefit from acknowledgment and neither acts on it. His readers get to be the kind of people who read Sanford Levinson. They get to hold the enlightened position that the Constitution is flawed. Levinson gets the readers and the royalties and the standing. Nobody has to do anything. The arrangement is stable because the acknowledgment replaces action rather than producing it. The readers who appreciate Levinson signal intellectual seriousness to each other. The signaling is the point. Levinson supplies the material, and the readers supply the audience, and both sides get what they want, which is a small high-status community of people who know what is wrong with the document, rather than a political movement to change it.
The Second Amendment article remains his most charismatically successful moment because it produced an outcome. He paid a coalition cost. The payment registered. The argument traveled. The Court eventually ruled his way. Charismatic paradoxes succeed when the speaker pays visible costs that the audience can verify. Levinson paid the cost, and the audience verified it, and the authority followed. He never reproduced the success on the structural questions because he never paid a comparable coalition cost on them. He attacks the Constitution in ways that cost him nothing in his primary coalition. Liberal legal scholars mostly agree with his diagnoses. He is not breaking with his tribe on the Senate or the Electoral College. He is speaking the tribe’s half-articulated discontent. That is why the structural work has less charismatic force than the Second Amendment article. He is not transgressing on the structural side. He is articulating.
The social paradoxes paper closes the account. Coalition life generates tensions that cannot be solved at the level they arise. Levinson’s tension is a liberal constitutional order legitimated by a document that produces illiberal outcomes. The tension cannot be solved inside the existing order because the existing order depends on reverence for the document that produces the tension. Levinson keeps naming the tension. His readers keep reading the naming. Neither side can break out of the loop. He writes more books. They read them. The Senate stays the same. The Electoral College stays the same. Article V stays the same. The Constitution stays sacred.
Levinson does what a scholar in his position should do. He has optimized for an equilibrium in which honesty about the system wins more status than loyalty to the system, and in which naming the problem wins more readers than solving it. The equilibrium serves him. It serves his readers. It leaves the Constitution untouched. The only misunderstanding would be taking his stated motive at face value. His stated motive is constitutional reform. His revealed motive might be sustaining the highest-status position available to a scholar who cannot change the document he writes about. That’s how a rational animal builds a career out of a problem he cannot solve.
Levinson’s basic diagnostic move is that Americans misunderstand their Constitution. They revere it as sacred when they should examine it as a flawed institutional design. They treat it as democratic when it systematically produces minority rule. They assume the amendment process is workable when it is effectively frozen. They do not see that their attachment to the 1787 document is a cultural choice rather than a necessity. They do not realize that comparable democracies function without the features Americans consider essential. His books exist to correct these misunderstandings. Constitutional Faith shows readers that they are practicing civil religion rather than reasoning.Our Undemocratic Constitution shows them that the defects are structural rather than accidental. Framed shows them that state constitutions already prove alternatives are possible. Each book presumes that clearer seeing would produce better politics. Each book diagnoses the prior confusion and offers the corrective.
The Americans who benefit from the current Constitution are not confused. Senators from small states understand perfectly that equal representation gives them power beyond their populations. They do not need Levinson to explain what the Seventeenth Amendment left in place. Republican presidential campaigns understand that the Electoral College provides structural advantages. The federal judiciary understands that Article V‘s rigidity concentrates interpretive power in their hands. Conservative movements understand that a difficult-to-amend Constitution freezes their gains once achieved. None of these actors misunderstand the Constitution. They understand it and prefer it.
The reverence Levinson calls faith is not cognitive error either. It is coalition behavior. Americans who revere the Constitution are signaling loyalty to a tradition and a tribe. The reverence is cheap to perform and carries high symbolic returns. Levinson’s Protestant-Catholic analogy captures the ritual form without identifying the coalition function. Protestants who read scripture for themselves are not cognitively superior to Catholics who defer to the magisterium. Each is signaling membership in a different community. Americans who treat the Supreme Court as final arbiter are signaling membership in a legal culture that benefits from the deference. Americans who invoke popular interpretation are signaling membership in movements that benefit from mobilization outside the courts. The reverence is a resource, not a mistake.
Levinson’s strategy follows the predictable misunderstanding-myth path. He writes more clearly. He produces more evidence. He explains more patiently. He engages across the ideological spectrum. He gives interviews. He speaks at conferences. None of it moves the structural features he criticizes. The strategy assumes the opposition is confused. The opposition is not confused. The opposition, where it bothers to form, understands Levinson’s arguments and rejects them because acceptance would cost power.
The most revealing case is the 1989 Second Amendment article. Levinson argued that liberal legal scholars were misreading the text. He called the situation embarrassing, which is itself a misunderstanding-myth word. Embarrassment implies that the liberal position was cognitively sloppy, as if attention to text would have corrected it. The liberal position was not sloppy. It was coalition behavior. Liberals in the 1980s had an interest in gun control and read the amendment accordingly. Their interpretive move was not a reading error. It was a political preference dressed as textual analysis. Levinson’s article did not persuade them to change. It provided a resource that conservatives later used to win the fight through the Court. The coalition that had produced the original reading lost power and yielded territory. Cognition had nothing to do with the outcome.
Levinson’s call for a new constitutional convention shows the misunderstanding myth in its purest form. A convention assumes that Americans could sit down and persuade each other about how the country should be governed. The assumption is that better information and clearer thought would produce a better design. Pinsof says no. A convention would reproduce the coalition conflicts that produced the current design. Small states would demand their protections. Large states would demand theirs. Conservative and liberal coalitions would negotiate for their respective interests. The convention would produce, at best, a document reflecting the current distribution of power, which might or might not be better than the existing text. It would not produce a rationally designed framework because rational design is not what conventions do. Conventions are arenas of political struggle, and the current struggle would continue in the new venue. Levinson presents the convention as a correction to misunderstanding.
There is a reflexive dimension. Pinsof argues that believers in the misunderstanding myth have convinced themselves that opposition is cognitive because the belief serves their own coalition. Thinking your opponents are confused rather than motivated lets you maintain a self-image as a disinterested truth-seeker. Levinson benefits from the self-presentation. He is the scholar who follows argument wherever it leads, who cares only about consistency, who has no partisan axe to grind. The self-presentation works because he believes it. He believes it because it is flattering and because the legal academy rewards the performance. The misunderstanding myth is what makes Levinson legible to himself as a principled proceduralist rather than as a particular kind of liberal intellectual with particular institutional interests.
Levinson’s explicit position is that Americans misunderstand their Constitution. His implicit position is that he understands it, and the legal academy equipped to train other scholars to understand it can therefore occupy the cognitive high ground from which the correction will be administered. This is the standard location of intellectual authority under the misunderstanding myth. The scholar becomes the necessary corrective. Without him and his colleagues, the confusion would continue. Pinsof identifies this as the move by which the myth secures the intellectual’s role. Levinson needs Americans to be confused because his function requires confusion to correct. If Americans are not confused, if they are simply pursuing their interests, then Levinson’s four decades of writing have no target. The misunderstanding is necessary to the project.
Levinson repeatedly notes that his critique is ignored. He observes that politicians do not adopt his proposals. He remarks that the convention does not happen. He treats these observations as evidence that Americans have not yet understood. The lack of uptake is not evidence of continuing misunderstanding. It is evidence that there was never a misunderstanding to correct. The actors who block his reforms are not blocked by confusion. They are blocked by the accurate perception that the reforms would cost them. Continued failure to persuade should update Levinson toward the motive diagnosis. It has not. He keeps writing as if the next clearer book might break through. The misunderstanding myth is resilient because each failure can be reinterpreted as further evidence that the correction is still needed. The myth does not fall to empirical refutation because every failure becomes a datum in its favor.
The cost of the myth to Levinson’s project shows in the choice of audience. Believers in the misunderstanding myth write for people who agree with them. Levinson’s readers are mostly law students, liberal legal scholars, and interested general readers who already share his concerns about minority rule and legislative paralysis. He is not persuading his opponents. He is preaching to the choir while imagining he is evangelizing. Conservative constitutional scholars also believe their opponents misunderstand the Constitution. They also write for their own coalitions while imagining they are speaking to the nation. Each side produces enormous scholarship that fails to move the other side because the other side is not confused. The scholarship functions as coalition maintenance for the side that produces it. Levinson’s books perform this function for liberal legal culture. They give liberal legal scholars resources for understanding why they keep losing structural battles despite being right. The losing is reframed as the product of tragic cognitive failure on the other side rather than as the predictable outcome of losing a coalition fight.
Levinson recognizes that originalism is a coalition move dressed as method. He argues, with Jack Balkin and others, that the text is always being used for purposes that exceed its stated meaning. He is sharp about how other people engage in motivated reasoning. He is less sharp about himself. When he reads the Second Amendment and concludes that its individual-right reading is correct, he presents this as textual fidelity. When conservatives read the Commerce Clause narrowly, he presents this as coalition behavior. The asymmetry is the misunderstanding myth at work. His reasoning is reasoning. Their reasoning is motivated.
What would a non-mythic version of Levinson’s project look like? It would abandon the diagnosis of misunderstanding and substitute the diagnosis of interest. Instead of trying to show Americans that their Constitution is defective, Levinson would identify the coalitions that benefit from the current design and work to assemble a counter-coalition with the power to change it. This would be political organizing rather than constitutional scholarship. It would involve identifying potential allies, mapping opposition, building institutions, raising money, training staff, running campaigns. It would be much harder than writing books. It would also have some chance of producing the outcome Levinson says he wants. He has not done this work. No legal scholar of his generation has. The misunderstanding myth makes the political work unnecessary. If the problem is confusion, clarity is enough. Levinson can stay in the law school and keep writing. The Constitution stays the same.
The myth’s hold on Levinson is therefore also its service to him. It permits him to pursue a career of structural critique without undertaking the political work that would be required to change the structures. He gets the moral satisfaction of being right about the defects, the professional rewards of being the leading voice on them, and the intellectual pleasure of producing the arguments. He does not have to organize, campaign, or compromise. The myth lets intellectuals feel important without having to act. The Constitution stays sacred. The Senate stays malapportioned. The Electoral College stays in place. Article V stays frozen. Levinson stays at the University of Texas writing books about how it should all be different. The arrangement serves everyone who matters to its continuation. That is why it continues.
Levinson trained first in government at Harvard, then in law at Stanford. The political scientist learns to ask where institutions come from and whom they serve. The lawyer learns to treat the text as given. Levinson crossed the two and produced hybrid offspring: a scholar who reads the Constitution with the lawyer’s precision and the political scientist’s skepticism about institutional origins. The hybrid generates vigor that neither parent tradition produces alone. A pure lawyer writes doctrinal articles. A pure political scientist writes comparative institutionalist studies. Levinson writes Our Undemocratic Constitution, a book neither discipline could have produced unmixed. His Jewish background in the American South, further mixed with his long affiliation at the Shalom Hartman Institute in Jerusalem, added another layer of hybridization. The kid from Hendersonville, North Carolina, reading scripture and civil law through each other, produces the concept of constitutional faith. A scholar formed entirely within one tradition, in one region, would not have seen the Constitution as civic scripture, because the category of scripture would have been invisible rather than comparative.
The American legal academy shows classic inbreeding features. It recruits from a small set of elite law schools. It socializes entrants through a narrow pipeline of clerkships, fellowships, and journal editorships. It reproduces its own methodological preferences through casebook adoption and hiring committees. The deleterious recessives this produces are visible in the features Levinson criticizes: the mystification of the Constitution, the deference to judicial supremacy, the inability to treat structural questions seriously, the assumption that interpretive cleverness can substitute for institutional reform. These traits flourish unchecked because the population is closed enough that no competing material suppresses them. Levinson is partly the product of that closed population and partly a defector from it. His critique works because he retains enough hybrid vigor from his political science training to see the field’s deleterious recessives, which fully inbred members of the population cannot see.
Costly signaling and the Second Amendment article. Reliable coalition signals must be expensive. The 1989 article was expensive in exactly this sense. Levinson paid a real coalition cost to liberal legal scholars and to the ACLU, where he held a card. The cost is what made the signal travel. Justice Thomas cited him because the citation was cheap for Thomas and costly for Levinson, which meant the endorsement carried information. The Heller majority drew on him for the same reason. A scholar who only said what his coalition wanted to hear would have been useless as cross-coalition ammunition. Levinson’s willingness to pay the cost bought him the handicap display that established his fitness as a principled reasoner. The subsequent career rides partly on that one expensive signal. The signal also explains why his structural critiques have traveled less. Those critiques cost him nothing inside his primary coalition. The handicap is missing, so the signal reads as ordinary advocacy rather than as costly evidence of commitment to consistency.
Article V helped the early republic survive by making constitutional change difficult enough that the framers could assure ratifiers the document would not be easily undone. The rigidity was adaptive for a young, fragile union. Two and a half centuries later, the same feature prevents adaptation to conditions the framers could not anticipate. The rule that protected the infant kills the adult. Levinson’s structural critique identifies this exactly without using the biological vocabulary. His complaint about Article V is an antagonistic pleiotropy complaint. The same applies to the Senate’s equal state representation, which was adaptive when small states needed reassurance to ratify and became a source of chronic malapportionment once the ratification problem was solved. Levinson sees this. What he does not see, or at least does not write clearly about, is that every constitutional design will exhibit antagonistic pleiotropy over long enough spans. Any new document his convention might produce would show the same pattern within a century or two.
Originalists develop more sophisticated historical methods. Living constitutionalists develop more sophisticated responses. Neither side wins permanently. The arms race consumes enormous intellectual resources and produces institutional stasis, because each coalition’s innovation gets matched by the other’s. Levinson runs inside this arms race. His casebook trains students to participate in it. His proceduralist stance is itself a Red Queen move: an attempt to transcend the race by occupying higher ground, which the other runners then also attempt to occupy. The exhaustion of the system is visible in the volume of work that fails to produce constitutional change. Hundreds of law review articles. Thousands of Supreme Court opinions. Millions of classroom hours. The structural features Levinson criticizes persist.
The Constitution functions as an asexual document. It cannot be sexually recombined with other constitutions because Article V forbids that. It can only be reinterpreted. Each interpretation is a mutation. Some are beneficial and become doctrine. Others are harmful and become embedded through precedent, impossible to remove without disturbing the structure they now support. Levinson calls this constitutional rot. The biology calls it Muller’s ratchet. The accumulated interpretive load eventually makes the text nearly unreadable in its original meaning and unworkable under its current glosses. Americans lie about what the Constitution says because they have to, since the text cannot change. The lies accumulate. The ratchet clicks forward. Levinson’s diagnosis is sharper when read through the biological frame, because the frame explains why the process cannot reverse. Asexual reproduction cannot purge the mutations. Only sexual recombination, a convention that crosses the current text with different material, can clear the load. Asexual lineages usually continue accumulating until they go extinct rather than solving their problem through a mode of reproduction they cannot access.
In American constitutional scholarship, the initial preference for careful textual analysis produced scholars who could read documents carefully. The preference drove elaboration: more footnotes, more historical context, more theoretical apparatus, more cross-disciplinary engagement. At some point the elaboration decoupled from the underlying function. Law review articles now run to 30,000 words of citations that few readers penetrate. Levinson participates in the elaboration even while sometimes criticizing it. His own books are more readable than most academic constitutional writing, which is part of why they circulate outside the academy. But the broader pattern is runaway sexual selection producing peacocks of scholarship: plumage that signals fitness within the community while consuming the resources that might otherwise go toward actual institutional reform. The peacock cannot fly. The scholar cannot change the Constitution. Both can display spectacularly.
Levinson’s tools are those of the legal academy: books, articles, casebook problems, conference papers, op-eds. These tools were calibrated for an environment where constitutional change happened through amendment processes that could be moved by sustained elite argument. That environment has not existed for most of Levinson’s career. The amendment process has been effectively frozen since the Twenty-Seventh Amendment in 1992, which was itself a fluke ratified after nearly two centuries. The tools Levinson deploys are mismatched to the problem. He writes scholarly arguments for a political environment that does not respond to scholarly arguments. The mismatch is not his fault. He inherited the tools that his niche equipped him with, and he uses them at high levels of craft. The mismatch is structural. Any scholar of his training would have produced the same mismatched output. What would fit the current environment is political organizing, movement building, electoral coalition construction. Those tools are not in the academic toolkit. The scholar who tried to use them would leave the academy and become someone else.
Levinson’s relationship with the legal academy began mutualistic. He produced genuine intellectual value. The academy gave him a platform. Both benefited. Over the decades, the relationship has drifted. The marginal intellectual value of each new Levinson book has declined. The academy continues to house him because removing him would be costly. The niche he has constructed keeps returning him as input to its own processes. He has become something closer to commensal: present, consuming some resources, not actively harming the host. The academy benefits from having him as a recognizable name, but the benefit is reputational rather than intellectual. The drift is not Levinson’s fault either. Every long academic career drifts this way. Stable niches move along the mutualism-commensalism-parasitism spectrum as their environmental fit changes. Levinson’s current position is roughly commensal, productive without being generative, present without being essential. The academy will not remove him. He will keep writing. The relationship will continue until his death.
Post-Watergate reforms—the Ethics in Government Act, the Independent Counsel statute, the War Powers Resolution—were immune responses to a specific pathogen. The memory persisted after the pathogen receded. Later presidents who behaved differently from Nixon still triggered the same immune responses, producing autoimmune-like overreactions in some cases and failures to detect genuinely novel pathogens in others. Levinson’s structural critique sometimes reads as calibrated to the Nixon pathogen. His worry about the imperial presidency, his concern about emergency powers, his attention to the mechanisms that produced Watergate. These concerns were acute in 2006 when Our Undemocratic Constitution appeared. They remain valid, but the pathogen landscape has shifted. The Trump administration produced novel pathogens that the Nixon-calibrated immune system struggled to recognize. Levinson has adjusted but incompletely. His toolkit remains shaped by the pathogens he first diagnosed, which is what immune memory does. The adjustment takes time, and scholars shaped by specific pathogen exposures rarely fully recalibrate.
Levinson’s proceduralist self-presentation functions as social crypsis. He colors his liberal coalition loyalty in the neutral tones of procedural consistency. The coloration is not false. He genuinely values procedural coherence. But the genuine preference also serves as camouflage that lets him pursue coalition goals without triggering the detection mechanisms that flag partisan argument. A scholar who openly wrote as a liberal partisan would be read as a liberal partisan and discounted accordingly by conservative readers. A scholar who presents as a proceduralist gets read as principled by both sides, even when his procedural conclusions track his coalition’s interests. The coloration has cost: he cannot make the openly partisan arguments that might mobilize his coalition more effectively. He has gained cross-coalition credibility at the price of within-coalition mobilization capacity. This is a stable trade. Many academic careers are built on exactly this trade. The biology identifies what is happening without moralizing it. Crypsis is adaptive. Organisms that can conceal their position from predators survive better than organisms that cannot. Levinson survives and flourishes partly because he has executed crypsis at high skill for half a century.
Levinson presents his positions as simply what careful reading produces. He does not announce a political agenda. He does not acknowledge that his procedural conclusions happen to serve particular coalition interests. The surface reads as flat analysis rather than advocacy. The detection systems of conservative readers, calibrated to flag liberal advocacy, often fail to flag Levinson’s work because the countershading cancels the visual cues that would trigger detection. This is why he gets cited across ideological lines. Conservative readers read him as neutral rather than liberal because his surface is painted to look neutral. A more partisan surface would not get those citations. Countershading is honest in a limited sense: the surface really is flat from most angles. It is dishonest in another sense: three-dimensional commitment underlies it and the flat surface is specifically designed to conceal the three-dimensionality.
Levinson runs a slow life history strategy. Long time horizons, high investment in each output, preference for incremental change, comfort with uncertainty of payoff. His books take years. His arguments unfold across decades. His proposals for a convention are bets on institutional change that will not arrive in his lifetime. This strategy is adaptive in stable environments where long-term investments can pay off. The academic environment is stable enough to reward it. The political environment may not be. A fast life history strategist would have written one quick book, gotten media attention, moved into advocacy, pressured politicians, accepted failure and moved on. Levinson’s slow strategy produces more durable work but potentially less institutional effect. The two strategies cannot be combined easily. The scholar who tries to do both usually does neither well. Levinson chose the slow path.
The American constitutional order functions as a superorganism maintaining homeostasis. Negative feedback loops resist perturbation. Levinson’s critiques are perturbations. The feedback loops activate in response: editorials defend the existing arrangement, judges reassert the Constitution’s wisdom, political actors invoke the framers, civic culture reproduces reverence through rituals Alexander and Collins describe. The homeostatic response is not conspiratorial. It is what the system was shaped over centuries to do. Levinson as individual scholar cannot overcome the homeostatic response of a continental-scale superorganism. Nothing he could write would produce enough perturbation. The organism is too large, its feedback loops too well-developed, its set points too deeply embedded. Superorganisms are not changed by argument. They are changed by environmental shifts that overwhelm their buffering capacity, or by competing superorganisms that displace them, or by internal genetic conflicts that exceed the coordinating mechanisms’ capacity to resolve. None of these is available to Levinson, which is why his critique lands without moving the system.
Levinson’s career is what a slow-life-history scholar of his training produces in that environment: elegant arguments, stable standing, cross-coalition credibility, enormous accumulated output, and no institutional change. The biology theories makes this predictable.
Horizontal gene transfer fits Levinson’s treatment of constitutional faith. Constitutional Faith by Sanford Levinson, published in 1988, borrows the Protestant-Catholic distinction from Christian theology and ports it into American constitutional interpretation. Protestants read the text directly. Catholics require mediation through church authority. Levinson maps this onto textualists versus those who require judicial mediation of constitutional meaning. The concepts arrive from Reformation Europe, travel through American religious history, and land in law school constitutional theory. Each transfer strips regulatory context. The Protestant Reformation presupposed a specific theological anthropology, a doctrine of grace, and a community willing to die for sola scriptura. By the time the distinction reaches Levinson’s framework, it signals methodological disposition and nothing more. The substrate does not travel.
Phenotypic plasticity shows across his body of work. In Constitutional Faith he writes as a scholar of civil religion. In Our Undemocratic Constitution by Sanford Levinson he writes as a democratic reformer. In Framed by Sanford Levinson he writes as a comparative constitutional analyst. On Balkinization he writes as a political commentator. In his coauthored work with Balkin he writes in a blended academic-advocacy mode. Same underlying commitments, different phenotypes shaped by venue, audience, and coalition need.
Exaptation describes what he does with the language of amendment. Article V emerged as a specific procedural rule for altering the 1787 document. The framers designed it to be difficult so that constitutional change would require sustained supermajority support across states. Levinson repurposes the concept of constitutional change to argue for a new convention and wholesale revision. The original function was stability through supermajoritarian hurdle. The new function is justification for revolutionary replacement. Levinson keeps the vocabulary of constitutional amendment and changes what the vocabulary is doing.
Exaptation also fits his use of the framers’ example. The 1787 convention exceeded its mandate. The delegates were sent to revise the Articles of Confederation and produced a new constitution instead. Levinson cites this as warrant for a present-day convention that might also exceed expectations. The 1787 move had specific conditions: a homogeneous elite, shared training, bounded disputes, and an exhausted confederation all parties wanted to escape. Levinson transplants the example into a present where none of the conditions hold. The trait survives the transplant. The function it might serve under current conditions differs from what it served in 1787.
Signal parasitism operates on his invocation of the framers. Levinson speaks as an heir to Madison and Jefferson, claiming the tradition’s willingness to break old forms for better ones. The framers paid specific costs: risk of hanging for treason, loss of British patronage, war, and construction of a new political order against heavy odds. Levinson pays no comparable cost. The rhetorical mimicry captures the prestige of founding-era boldness while operating from a tenured professorship within the liberal legal academy his coalition controls. The signal of constitutional courage gets sent by someone whose actual position faces no comparable risk.
Signal parasitism also fits his civil religion framing. Civil religion emerged as a concept in Rousseau’s Social Contract and got revived by Robert Bellah in 1967 to describe American public piety around founders, constitution, and national purpose. Bellah’s essay drew on sociology of religion, Durkheim, and mid-century American self-understanding. Levinson borrows the framework and uses it for his own purposes. The civil religion concept signals depth and sociological seriousness. The signal travels without the substrate. Levinson does not share Bellah’s theological concerns or the specific Durkheimian apparatus that gave civil religion its analytic weight. The concept functions as a credential.
The internal-external tension runs through his work. Levinson was raised in a Jewish community in the American South, a people with specific history of migration, persecution, and partial assimilation. His intellectual tribe, post-war Jewish legal academics, moved from outsider status into the elite institutions over the course of his career. He now speaks as an insider to American constitutional tradition, a tradition produced by a coalition his ancestors were not part of when the document was drafted. His criticisms of the Constitution carry a particular angle. The structural features he finds undemocratic, Senate representation, Electoral College, the amendment process, protect state-level and regional coalitions against national majorities. The coalition he speaks for gained power through the national-level institutions the Warren Court expanded. His reform proposals would further centralize power where his coalition’s influence concentrates. An internal exponent speaking for the actual founding tradition might defend federalism as protection for local communities against centralized power. Levinson speaks against federalism as an impediment to national democratic action. The external exponent reads the tradition’s meaning through his own coalition’s interests.
The bio frames also illuminate his resistance to certain obvious counterarguments. Putnam’s diversity findings, the civic-capacity preconditions for a working convention, the pattern of low-trust societies producing bad constitutions, all point against Levinson’s project. He does not engage these arguments at the depth they require. Coalition commitments shape what counts as a relevant objection. The internal exponent of a tribe’s story filters out data that threaten the story. Levinson’s filters are his coalition’s filters. Evidence that might favor the existing constitutional structure reads to him as rationalization of injustice rather than as information about what the structure does.
His collaboration with Balkin exemplifies the progressive constitutional project’s internal ecology. Both men came through Jewish legal academic formation. Both work at elite law schools. Both treat the Constitution as an unfinished redemptive project. Both borrow concepts from conservative traditions, Burkean constitutional inheritance, civic republican virtue, religious faith metaphors, and deploy them for progressive ends. The borrowing follows the exaptation pattern. The concepts retain their shape and change their function.
Levinson’s work on dictatorship and constitutional emergency powers shows the pattern in a different register. He studies how democracies handle crises and what constitutional structures protect against authoritarian drift. His framework privileges the dangers his coalition fears, executive overreach by Republican presidents, erosion of voting rights through state-level policies, constitutional constraints on progressive policy ambition. He pays less attention to dangers his coalition welcomes, administrative state expansion, judicial rewriting of constitutional text, erosion of federalism, centralized power wielded by his own coalition. The selection pattern fits coalition maintenance rather than neutral analysis.
Levinson’s constitutional reform project has gained little traction with the broader public. His books get respectful reviews in venues his coalition controls and polite dismissal elsewhere. Signals parasitized from other contexts lack the substrate that made them work in their original setting. Exapted concepts serve new functions but do not carry their original legitimating force. Horizontally transferred ideas operate in host environments that select for what serves the host, not what served the source. Levinson’s ambitious reform vocabulary circulates within his coalition and fails to persuade the broader country. The internal exponent finds a ready audience inside the tribe. The external audiences Putnam’s data describe, fragmented, low-trust, skeptical of elite-driven reform, do not select for the signal Levinson is sending.
His standing in the profession is central and slightly marginal as he performs the permitted dissent.
He stands as the priest who exposes the idolatry while remaining in the temple.
His 1988 book Constitutional Faith names the thing directly. This book treats American constitutional veneration as a civil religion with scriptures, creeds, prophets, and heretics. Levinson divides interpreters into constitutional Protestants and constitutional Catholics, those who read the text directly versus those who submit to an institutional magisterium (the Supreme Court). He locates himself closer to the Protestant side but with more self-awareness than most.
Our Undemocratic Constitution argues that the document itself sits structurally broken. The Senate malapportions power. The Electoral College distorts elections. The amendment process freezes the text against democratic revision. He calls for a new constitutional convention.
His hero system combines several strands.
First, the prophet-critic role. He works as the insider who points at the golden calf. He writes as a constitutional scholar, publishes in the right journals, co-authors a major casebook used in law schools. His authority comes from inside the priesthood. But his distinctive product remains criticism of the veneration itself. That position earns him standing that pure defenders of the text cannot earn and pure outsiders cannot earn. He holds the middle seat where prophecy lives.
Second, democratic legitimacy as the sacred floor. Levinson debunks constitutional worship but does not land in nihilism. Democracy remains holy. His critique of the Constitution holds that it fails democracy. The Senate fails democracy. The amendment process fails democracy. Judicial review of legislation fails democracy in a particular light. Democracy serves as the unmoved mover of his moral universe.
Third, Jewish prophetic identity applied to American civil religion. Levinson has written about his Jewish identity shaping his approach to constitutional interpretation. The Protestant-Catholic frame itself reflects an outsider’s view of Christian interpretive traditions. He brings the Talmudic mind to the American text. He reads it as a document subject to ongoing argument rather than a static revelation. The hero here works as the learned outsider who sees what insiders cannot.
Fourth, intellectual courage inside his own coalition. His 1989 article The Embarrassing Second Amendment in the Yale Law Journal told liberals that the individual rights reading of the Second Amendment had scholarly merit. This cost him among allies. He took the hit. Willingness to take such hits forms part of his hero system. It marks him as a scholar who follows the argument rather than the coalition line. That reputation returns interest over decades.
Fifth, the casebook as monument. Levinson co-authored Processes of Constitutional Decisionmaking, a casebook that shapes how generations of law students meet the Constitution. The casebook works as the scholar’s cathedral. It outlasts the author. It frames the tradition for students who will become judges, professors, officials. Becker would recognize the pyramid impulse.
The pressures on that hero system:
Levinson’s prophet role requires the civil religion he critiques to stay alive. A nation that abandoned constitutional veneration altogether might have less use for his kind of prophetic scholarship. The reformer needs something to reform.
His democratic sacred floor sits uneasily with his scholarly authority. Scholarly authority works as an aristocratic resource. The man with the casebook has more voice than the man without. He must hold both.
His coalition courage has limits. He pushes liberals on the Second Amendment but the overall arc of his work aligns with liberal constitutional politics. The scholar who breaks ranks occasionally retains standing. The scholar who breaks ranks as a pattern loses it.
His amendment-convention project has gone nowhere in practical terms. No convention has convened. The Senate remains malapportioned. This can register as failure or as prophecy. Prophets are often unheard.
Levinson treats the Constitution as a canonical document that generates an interpretive tradition rather than as a set of rules that deliver answers. This mirrors the rabbinic approach to scripture. The document sits as the beginning of argument, not the end. Every generation must read it again. Every reading joins a chain of prior readings. Authority lives in the ongoing interpretive community, not in a single definitive meaning. This stance puts him at odds with originalists who seek the fixed meaning at the moment of enactment. The Talmudic mind resists that kind of closure.
Protestant-Catholic typology as outsider vision. The constitutional Protestant-Catholic frame sorts American interpretive schools by analogy to Christian traditions. A Jewish scholar sees Christian denominational differences from outside and can map them onto secular American debates with a clarity insiders cannot achieve. The insider thinks his tradition is the natural way. The outsider sees it as one option among several. Levinson does this move with the Constitution. He shows that constitutional veneration is a religious practice, not the default human relationship to a legal text.
Suspicion of civil religion. American Jews have reason to watch civil religion carefully. The merger of nation, text, and sacred has a long European history that did not end well for Jews. Levinson’s willingness to call American constitutional worship what it is, a religion, comes easier to someone whose tribe has stood outside the dominant religious formation and watched it operate. This gives his critique a different tone than the critique of a liberal Protestant reformer inside the tradition. He names idolatry because he can see it as idolatry.
Covenant thinking. Jewish tradition centers on covenant, a binding agreement between parties that generates ongoing obligation. Constitutional thinking can run in the same groove. Levinson’s work on constitutional faith treats the document as covenantal rather than contractual. A contract delivers a bargained exchange and then ends. A covenant structures ongoing relationship and identity. His Our Undemocratic Constitution argues that the current covenant fails its own terms and needs renewal. This is a prophetic move inside a covenantal frame, not a libertarian move inside a contractual frame.
Argument as devotion. In the yeshiva tradition, vigorous argument honors the text. Disagreement is not disrespect. Levinson’s scholarship runs hot with disagreement, including self-disagreement, and he treats this as the appropriate response to a serious document. The American legal culture sometimes treats disagreement with the Constitution as disloyalty. Levinson’s Jewishness makes that framing visible as a particular cultural stance rather than a natural one.
Minority vigilance on structural features. Levinson’s focus on the Senate, the Electoral College, and the amendment process reflects attention to how structures advantage some groups over others. Jews have historically been a small minority dependent on fair procedure rather than majoritarian goodwill. But Levinson’s argument runs the other direction from typical minority-protection arguments. He attacks the anti-majoritarian features of the Constitution rather than defending them. The structural vigilance carries over. The conclusion differs from the standard Jewish liberal conclusion, which often defends judicial review and counter-majoritarian institutions as protection for minorities. Levinson trusts democracy more than most American Jewish legal scholars do.
The Second Amendment piece. His 1989 article The Embarrassing Second Amendment may have a Jewish substrate worth naming. A scholar from a tribe with a recent history of disarmament followed by mass murder might approach the individual right to bear arms with less dismissive confidence than a scholar without that memory. He did not make the argument in those terms, but the willingness to take the gun rights reading seriously fits a sensibility aware of what happens when states monopolize force and minorities cannot defend themselves.
Limits worth naming.
Levinson is one Jewish constitutional scholar. Other Jewish constitutional scholars arrive at opposite conclusions on nearly every question he addresses. Cass Sunstein, Laurence Tribe, Akhil Amar, Jack Balkin, Pamela Karlan all read the same text and produce different jurisprudence. Jewish identity does not determine constitutional theory. It supplies resources, sensibilities, analogies, and reflexes that a thinker then combines with everything else he is.
The Jewish-outsider reading of the Protestant-Catholic frame can be overdone. Protestant and Catholic intellectuals have also analyzed American constitutional culture in religious terms. Levinson’s contribution is distinctive but not uniquely available to a Jewish scholar.
The covenant frame has Protestant versions too, especially in the Reformed tradition that shaped early American political thought. Levinson draws on a resource that is Jewish at its root but has been Christianized extensively in American intellectual history. The line between Jewish covenant thinking and American Puritan covenant thinking blurs in the actual texture of his work.
Levinson himself is careful about the identity move. He does not present his Jewishness as a trump card or a unique epistemic privilege. He treats it as one shaping influence among several, including his Southern upbringing in North Carolina, his academic formation at Stanford and Harvard, his long tenure in Texas, his marriage, his political commitments. A responsible account of his jurisprudence holds the Jewish strand alongside these others rather than elevating it above them.
The Jurisprudence of Sanford Levinson
This 2003 essay by Jack Balkin says that faith sits at the center. Levinson treats faith not as possession but as ongoing work, something a man lives inside and worries about, never settles. Judaism shapes the work even as Levinson holds agnostic views about God. He keeps kosher. He carries the rabbinic sensibility into the American text: dialectical, anti-closure, self-reflexive, comfortable with disagreement as a form of devotion.
Two fears of faith organize his output. Apology or theodicy, the risk that faith in law whitewashes injustice and produces a Great Progressive Narrative to excuse past evils. Idolatry, the risk of worshipping a graven image, a false representation of the divine or the legal truth. Balkin names Judaism as the religion of idol-smashing. Levinson carries that stance into American constitutional culture and finds idols everywhere. The Constitution when venerated. The Rule of Law when treated as substitute for justice. The Supreme Court when treated as papal authority. Well-trained lawyers when trusted on their credentials.
The flag collection captures the man. He loves the flag. He also collects horrifying uses of it, including a 1939 Nazi rally in New Jersey with the swastika and Gilbert Stuart’s portrait of George Washington. He displays the whole collection at the University of Texas law school. The ambivalence is the point. Celebration and rebuke sit in one frame.
Balkin presents Levinson as essayist rather than system-builder. Titles like Reflections on X, Thoughts about Y, Some Comments about Z. Socratic, not doctrinal. The method reflects the theology. A man who treats closure as idolatry cannot build a system.
The catholic/protestant distinction gives Levinson his most productive frame. Constitutional catholics look to the Supreme Court as papal authority. Constitutional protestants trust individual conscience and community interpretation. Levinson sits closer to the protestant side but keeps enough ambivalence to see both dangers.
Lincoln and Nixon serve as test cases. Both claimed to act for the Constitution and the nation. How does one tell the true prophet from the false one at the moment of decision? Levinson does not answer. He stays inside the question.
Balkin writes a tribute. He also stakes his claim.
He opens by naming Levinson his discoverer, his collaborator, the man who brought him to Texas and gave him a career. This is the disciple’s voice. Then he says the themes of Levinson’s work have also become central to his own work. He articulates Levinson’s themes in ways that differ from how Sandy would present them. The disciple has become the rabbi.
Levinson wrote essays. Balkin extracts themes. Levinson resisted system. Balkin systematizes. The essayist left a pile of gems. Balkin strings the necklace. This matters because Levinson’s method, refusal to close, dialectical opening, means Levinson himself cannot produce the unified reading Balkin produces here. Balkin’s tribute completes what the master left open. This is a serious intellectual act, not mere homage.
Watch the citations. The essay cites Balkin’s own work repeatedly. Nested Oppositions. Bush v. Gore and the Boundary Between Law and Politics. Agreements with Hell and Other Objects of Our Faith. The Great Progressive Narrative as his phrase. The off-the-wall / on-the-wall frame as his coinage. Understanding the Constitutional Revolution, co-authored with Levinson. Interpreting Law and Music, co-authored with Levinson. The tribute essay serves as citation manifold. Balkin’s corpus appears as the natural extension of Levinson’s.
The catholic/protestant reinterpretation is the most telling move. Balkin says the distinction matters not as a static claim of legal right but as a feature of the constitutional system over time. He introduces the constitutional demi-monde, the space of constitutional claims circulating outside official recognition that eventually become law. This is Balkin, not Levinson. Balkin presents it as what flows out of the soil of the distinction Sandy first offered.
Watch the word “dialectic” carrying the argument. Levinson drew two ideal types. Balkin turns them into a nested opposition that generates constitutional change across time. Catholics depend on protestants. Protestants capture catholic institutions. The New Deal courts. The Reagan-era judiciary. The engine of change is protestant dissent. The product of change is catholic doctrine. This is Balkin’s theory of constitutional change in Levinson’s vocabulary.
Balkin shares Levinson’s Jewish-intellectual sensibility. When he describes Levinson’s Judaism as dialectical, anti-closure, self-reflexive, he describes himself. Both men sit at Yale Law School. Both treat American constitutional culture from a standpoint that sees Christian interpretive moves as anthropological data rather than natural arrangements. The tribute is also a mirror.
One moment of respectful aggression surfaces. Balkin lists Levinson’s tentative essay titles and adds a footnote citing his own co-authored piece with Levinson, How to Win Cites and Influence People. The joke nods at the collaboration and at Balkin’s arrival at the cite-counting peak. He can afford the joke. He has arrived.
The essay works as homage and as succession. Balkin honors the man who brought him in. He also claims the tradition. This is how intellectual inheritance runs in legal academia. Through a tribute that performs the very extension of the master’s work the tribute announces as its subject.
Identifying the Jewish Lawyer: Reflections on the Construction of Professional Identity (1993)
The Koufax frame does more work than it appears. Levinson uses Koufax to define the minimum signal of Jewish professional identity, one day per year, refusal to pitch on Yom Kippur. Koufax pitched every Saturday. His Jewishness governed when he worked, never how. The whole analytical grid Levinson builds rests on extending this minimum toward something thicker. Models two through five ask how much more the Jewishness can shape the work before the professional role becomes something else. Levinson wants more than Koufax but less than Halakhah. He wants Jewishness to matter visibly without constraining the substance of the practice. This is the modal position of the American Jewish professional class, and Levinson maps it by contrast rather than by argument.
The footnote exchange with Jerold Auerbach is the most revealing moment in the piece. Klingenstein describes Joel Springarn as Jewish only by an accidental detail of descent. Levinson says we take pride in Springarn despite his taking no pride in being one of us. Auerbach writes back: why should we take pride in a Jew who takes no pride in being Jewish? Levinson calls this a profound question whose resolution lies beyond the scope of the Article. He dodges. The dodge is the interesting part. Auerbach has put his finger on the central structural problem of secular Jewish identity, which wants credit for belonging without accepting the demands of belonging. Levinson cannot answer because the answer would indict his own position.
The sixth model he refuses to offer deserves attention. Several readers suggested adding a model built on commitment to Jewish values in the practice of law, usually specified as civil rights or defending the downtrodden. Levinson declines. He calls the move tendentious and notes it would require delineating what counts as specifically Jewish values, a task he will not undertake. This is the honest move. Most American Jewish legal self-understanding conflates progressive politics with Jewish values and presents the conflation as obvious. Levinson sees the circularity and steps back. The refusal costs him the easy patriotic Jewish-American synthesis that Oscar Straus and a century of successors built careers on.
The Auerbach quote he features at length says what Levinson will not say directly. The transfer of Jewish allegiance from Torah to Constitution represents the erosion of Jewish tradition, not fidelity to it. Fervent Jewish attachment to American law reflects the acculturation process, not Jewish legal principles. Levinson quotes this at length and then demurs that reality is more complex. He does not refute it. He cannot. The quote sits in the footnote as a time bomb under the entire enterprise of Jewish-American legal synthesis.
The Rosenberg example is the darkest application of coalition analysis in the Article. A Jewish prosecutor and a Jewish judge sent Julius and Ethel Rosenberg to death, possibly, Levinson notes, to reassure the surrounding gentile community that Jewish prosecutors and judges could be trusted to discipline one of their own. In-group harshness performs coalition loyalty to the out-group. Frankfurter admitted he exacted higher standards from Jews at Harvard for similar reasons. The coalition demands visible policing of its own to earn standing with the majority. Pinsof and Turner would both recognize the structure without needing additional vocabulary.
The Frankfurter flag salute case is the companion example. Frankfurter opens his dissent invoking his membership in the most vilified and persecuted minority in history, then immediately says that as judges we are neither Jew nor Gentile. Levinson calls this tortured. The tortured quality is the point. Frankfurter performs his Jewishness at the moment of claiming standing, then disavows it at the moment of exercising authority. The two moves must happen in the same paragraph because they are doing different work for different audiences. The Jewish audience sees the invocation. The gentile audience sees the disavowal. This is the basic American Jewish professional gesture, and Frankfurter made it in print.
The Dershowitz-Griswold episode reveals a different structural move. Dershowitz refuses to teach Saturday classes, not for religious reasons, since he was already nonobservant, but for ethnic solidarity. Griswold accommodates him. Then Harvard abolishes Saturday classes altogether, so no further individual Jewish accommodation will be needed. The particular demand restructures the whole institution rather than getting absorbed into it. This is how coalitions remake their host institutions. The accommodation becomes the rule. The rule erases the particularity that prompted it. Within one generation, no one remembers why Saturday classes ended. The institution now looks as though it was always this way.
The Orthodox lawyer section is the strangest part of the essay, because Levinson treats his most observant coreligionists as foreign territory. He examines what Halakhah demands of a Jewish lawyer as though reporting field notes from a distant tribe. The divorce example, the confidentiality example, the injunction against representing Jewish plaintiffs in secular courts without rabbinical referral, all appear as ethnographic data rather than live options. The conclusion confirms this: he classifies his own Jewish identity as strongly secular and could scarcely adopt models four or five. A secular Jewish legal scholar maps the territory of Jewish law from outside it. The essay is most illuminating where this distance shows, because it exposes the gap between the Jewish-lawyer identity Levinson claims and the Jewish legal tradition that identity nominally descends from.
The Wittgenstein closing move is worth watching. Levinson quotes “to imagine a language means to imagine a form of life,” then adds that modern professionals are multilingual, inhabiting several forms of life at once. The postmodern Jewish lawyer speaks Halakhah and American law as two languages. But the metaphor papers over the question Auerbach raised. A man who cannot read the Talmud and does not keep Halakhah does not speak the language of Jewish law. He speaks the language of American secular law with some Jewish cultural flavoring. Wittgenstein’s point cuts the other way from where Levinson sends it. Forms of life require practices, not sentiments. The secular Jewish lawyer is monolingual in the language that matters, and bilingual only in self-presentation.
The deepest silence in the essay: Levinson never asks who benefits from the particular profile of the Jewish American legal scholar he represents. He maps Jewish lawyers as types without asking what coalition each type serves. Dershowitz’s visible Jewishness pays off in Jewish communal standing and media presence. Trilling’s refusal of Jewish identity paid off in acceptance at Columbia’s English Department in 1944. Auerbach’s position, that American Jewish law-love represents erosion rather than fidelity, pays almost nothing because it attacks the coalition’s founding myth. Levinson’s own position, secular but engaged, liberal but willing to break ranks on the Second Amendment, pays in a particular currency: status at Texas and then Yale, scholarly standing with the liberal legal academy, Jewish communal respectability, and the freedom to critique the Constitution as long as the critique runs in the democratic direction. The coalition pays its members according to a schedule. Levinson maps the types without reading the schedule.
The essay shows Levinson before he had fully developed the catholic-protestant frame that Balkin later systematized. The Jewish lawyer article is doing related work in a different register. The five models map positions on a spectrum from external to internal authority, from nominal identity to constitutive identity. This is the same structural question that produced the catholic-protestant distinction in Constitutional Faith. Levinson keeps finding the same problem in different materials. The problem is how to belong to an authoritative tradition without submitting to its authority. Jewish law supplied the first version of this problem for him. American constitutional law supplied the second. He worked the same seam for four decades.
‘The Blogosphere and Its Enemies: The Case of Oophorectomy’
Turner’s oophorectomy essay produces a specific analytical yield for Balkin and Levinson. They are credentialed constitutional experts who have themselves embraced the blogosphere as a venue. Balkinization, launched in 2003 and still running, sits at the center of this hybrid operation. The two men are not the hysterectomy establishment Turner critiques. They are not the counter-experts either. They occupy a third position Turner’s framework makes visible: experts who use blog form to extend their expert claims into a semi-informal register while retaining the institutional authority that the form typically operates against.
The Hybrid Structure
Turner sets up a binary between the credentialed establishment and the blogosphere that challenges it. The gynecologists speak from inside institutional position. The HERS Foundation and the commenters speak from outside it. The conflict runs between positions. Balkin and Levinson occupy both positions simultaneously. They hold endowed chairs at Yale and Texas. They publish in the leading law reviews. They edit the dominant constitutional law casebook. They also run and write on a blog that engages public events with the informality and rapid response the blogosphere makes possible. They have invited the blogosphere into the academy and carried the academy into the blogosphere.
Pure establishment figures, in Turner’s account, resist the blogosphere because it threatens their authority. Pure blog figures, in his account, challenge the establishment because they have nothing to lose from the challenge. Hybrid figures have to manage both positions at once. They cannot simply defend institutional authority because they have chosen to operate partly outside it. They cannot simply challenge institutional authority because they depend on it for their standing. The management produces specific features of their output.
The specific features are visible in their treatment of constitutional rot. The concept names a decay in institutions. The naming comes from men whose standing depends on those same institutions. A pure outsider could name the decay with full force. A pure insider could not name it at all. Balkin and Levinson name the decay while calibrating the naming to preserve their position inside the institutions they are diagnosing as decaying. The calibration is what makes the concept work as an academic contribution rather than as raw polemic. The calibration also limits what the concept can do. Turner’s framework helps see why.
The Folk Sociology of Knowledge Applied to Law
Turner’s central insight is that blog commentary performs a folk sociology of knowledge against expert claims. Commenters analyze the interests and motives of experts, notice when expert claims track professional interest rather than evidence, and accumulate experiences the specialist channels filter out. The folk sociology challenges experts to justify themselves.
Balkinization as a venue allows this folk sociology to reach Balkin and Levinson in specific ways. Commenters challenge their constitutional interpretations. Readers point out tensions between their stated principles and their specific political commitments. The blog format creates pressure for response that pure law review publication does not create. A law review article can ignore its critics for years. A blog post generates immediate pushback that demands engagement or evident non-engagement.
The question Turner’s framework forces is whether this pressure produces correction or sophisticated resistance. The oophorectomy experts engaged with their critics mostly by explaining why the critics were wrong. They dismissed the testimony as self-selection. They attributed the reports to confounding variables. They maintained the consensus against the evidence until the meta-analyses forced revision.
Balkin and Levinson exhibit analogous patterns when challenged on specific matters. The patterns are visible in how they handle objections to constitutional rot as a concept. Critics point out that the concept lets liberal legal elites name dysfunction without conceding that the constitutional order has failed. The Constitution is strained, endangered, in need of repair, but not fundamentally broken. The framing stabilizes elite legal opinion at exactly the position that preserves elite legal authority. A sharper diagnosis would threaten the professional standing of men whose livelihoods depend on the Constitution being reparable through the interpretive work constitutional law professors perform.
Balkin and Levinson do not typically engage this structural critique directly. They engage specific claims about specific institutions. The structural critique gets filtered through responses that accept the framing the critique itself calls into question. A critic who says the concept of constitutional rot serves the coalition of constitutional law professors gets answered as if he were making a narrower claim about specific diagnoses.
The Levinson Case: Heresy Inside the Temple
Levinson occupies a more complicated position than Balkin within this structure. His book Our Undemocratic Constitution (2006) argues that the Constitution is fundamentally broken in ways that cannot be repaired through interpretation. The Senate’s malapportionment, the Electoral College, the impossibility of amendment through Article V, all constitute design failures rather than features susceptible to interpretive repair. Levinson calls for a new constitutional convention. The call lands as heresy inside constitutional law because it denies the core premise that sustains the profession. If the Constitution is broken in its design, the interpretive work of constitutional law professors is rearranging deck chairs.
Turner’s framework clarifies what Levinson is doing. He is performing the role of internal critic, the expert who challenges his profession from within. The role has specific functions within expert communities. The internal critic legitimates the profession by demonstrating that it tolerates dissent. He absorbs the energy that might otherwise flow toward external critics who would delegitimate the profession entirely. He marks the boundary of acceptable heresy. Beyond Levinson’s position lies a space the profession treats as outside legitimate discourse. Within Levinson’s position, the profession demonstrates its openness to self-examination.
This reading is not a criticism of Levinson. He holds his position with evident sincerity. The sincerity is part of what makes the role work. An obviously opportunistic internal critic would not legitimate the profession. A sincere internal critic does. Levinson’s decades of consistent argument for constitutional reform, his willingness to stake his reputation on positions his profession rejects, make him the rare figure who can perform the internal-critic function authentically. The authenticity is his and also serves the profession that contains him.
What Turner’s oophorectomy case adds is the question of whether the internal critic can be right in ways the profession cannot absorb. The hysterectomy establishment contained its own internal critics, physicians who questioned specific practices while accepting the general framework. The establishment was wrong about oophorectomy in ways the internal critics mostly did not anticipate. The corrections came from outside the profession, from the HERS Foundation and the testimony it aggregated, and from the eventual meta-analyses that confirmed the testimony. The internal critics were not sufficient to produce the correction. Their presence may have even delayed the correction by providing the appearance of self-criticism that absorbed the energy for more fundamental challenge.
The question Turner’s case puts to Levinson is whether his internal-critic role serves a similar function. He names the structural failures but stops short of the challenge that would unsettle the profession entirely. He calls for a convention that has no realistic path to occurring. The call functions as perpetual heresy rather than as a program. Meanwhile, the critiques that might matter more, the claims that constitutional law as a field has become primarily a priesthood defending elite interpretations against popular understandings, get marked as outside serious discourse. Levinson’s presence inside the tent may make these outside voices harder to hear rather than easier. His heresy sets the ceiling of legitimate critique.
The Balkin Case: Faith as Professional Equipment
Balkin operates differently. His concept of constitutional redemption treats the Constitution as unfinished, often unjust, but susceptible to redemption through interpretation and struggle. The framework grants the profession exactly the role the profession needs to have. Interpretation matters. Struggle matters. The Constitution is not self-executing. It requires the work of skilled interpreters to realize its latent possibilities. The work is the work constitutional law professors do.
Turner’s framework raises the specific question of whether this theoretical framework tracks reality or tracks professional interest. The framework’s convenience for its author is striking. Constitutional law professors get to be the priests of a redemptive tradition. Their work becomes not merely academic but spiritual. Their disagreements with each other become not competing interests but contesting faiths within a shared tradition. The framework elevates the profession while appearing to critique its current configuration.
The oophorectomy parallel runs as follows. The hysterectomy establishment developed elaborate theoretical frameworks that justified the procedure while acknowledging its complications. Hormone replacement therapy would manage the complications. Careful selection of patients would minimize the risks. The theoretical apparatus grew in sophistication as the evidence against the practice accumulated. The growing sophistication did not correct the practice. It protected the practice from correction by providing rationalizations that absorbed the incoming data without requiring fundamental revision.
Balkin’s theoretical apparatus performs analogous work. Every critique gets absorbed into the framework. Constitutional rot accommodates the observation that institutions are decaying. Ideological drift accommodates the observation that legal doctrines serve whoever captures them. Cycles of constitutional time accommodates the observation that crises recur. The framework keeps growing. The growth does not threaten the profession. It equips the profession to speak about its own condition in ways that preserve its authority to speak.
Turner’s framework does not prove that Balkin’s work is wrong. It raises the question of whether the work could be wrong in ways its sophistication makes invisible. The hysterectomy establishment’s sophistication made its wrongness harder to see. The experts were wrong in ways they could not recognize from inside the theoretical apparatus they had built. The apparatus filtered out the data that would have triggered revision. Only the accumulation of data outside the apparatus, in the testimony the blogosphere aggregated, eventually forced the revision.
What data exists outside Balkin’s apparatus that might eventually force analogous revision? The question is worth holding open. Americans’ declining confidence in constitutional institutions might constitute such data. The rise of movements that treat the Constitution as irrelevant to actual political life might constitute it. The shift of intellectual energy away from constitutional law toward direct political action might constitute it. Balkin’s framework absorbs all of this as further evidence of rot that interpretive work can address. The framework might be absorbing exactly the signals that should be forcing revision of the framework itself. Turner’s case suggests this is what expert apparatuses do when they are about to be shown wrong.
The Blogosphere Balkin and Levinson Run
Balkinization deserves specific attention through Turner’s frame. The blog exists because Balkin and Levinson decided to participate in the blogosphere rather than cede it to figures outside the constitutional law establishment. The decision reflected sophisticated judgment about where intellectual authority was flowing. If expert authority was going to have to operate partly through blog-style engagement, better for the experts to run the blogs themselves than to leave blogs to the challengers.
The result is a blog that performs specific work. It maintains the authority of its contributors by keeping the quality of discourse high, the tone measured, and the engagement with popular controversies filtered through legal-academic framing. It absorbs intellectual energy that might otherwise flow to blogs run from outside the academy. It extends the reach of constitutional law professors to audiences that would not read law reviews. It produces the appearance of open intellectual exchange while maintaining the specific institutional boundaries that give the blog its coherent identity.
Turner’s framework raises the question of whether this arrangement is the corrective the blogosphere is supposed to provide or the co-optation of the blogosphere into continued expert authority. The hysterectomy blogs worked as correctives because they operated outside the profession they critiqued. The HERS Foundation had no gynecologists on its board. Its authority came from aggregated testimony rather than from credentials. This outside position was what allowed the foundation to see what the profession could not.
Balkinization cannot perform the same function because its authority comes from the credentials of its contributors. When a Balkinization post challenges constitutional law orthodoxy, it does so from inside constitutional law. The challenge is bounded by the institutional commitments of the challengers. It cannot reach the questions that would threaten the profession entirely. Those questions get raised outside Balkinization, on blogs and in venues that do not operate under constitutional law credentials. Balkinization absorbs the energy that would otherwise fuel those outside venues by providing a sanctioned space for heterodox opinion within the profession.
The oophorectomy parallel sharpens. Imagine a gynecological establishment that responded to the HERS Foundation by creating its own blog where gynecologists discussed the complications of hysterectomy. The blog would absorb patient concerns by providing a venue where those concerns could be heard and addressed within the framework of the profession. Patients who might have gone to HERS would instead engage with the profession’s own reform discussions. The appearance of openness would delay the fundamental revision that the profession needed. Balkinization performs this function for constitutional law. It is the profession’s self-running critic, bounded by the commitments that make the profession what it is.
The Convenient Beliefs Analysis
Turner’s framework also produces a specific reading of the beliefs Balkin and Levinson hold that align conveniently with their professional positions. Stephen Turner’s broader work on convenient beliefs provides the relevant tool, and the oophorectomy case illustrates it. Experts held convenient beliefs about oophorectomy that aligned with their financial interests. The beliefs were not held cynically. They were held sincerely by men whose sincerity served their interests.
Balkin and Levinson hold several convenient beliefs worth naming through this lens. They believe that constitutional interpretation matters. They believe that the Constitution, despite its flaws, remains the appropriate framework for American political life. They believe that careful legal scholarship can improve constitutional practice. They believe that public engagement by constitutional scholars serves democracy. Each of these beliefs is defensible on its merits. Each also happens to be the belief the men need to hold to justify the work they do. A constitutional scholar who believed constitutional interpretation did not matter, or that the Constitution should be abandoned, or that legal scholarship could not improve practice, or that public engagement by scholars served only the scholars, would be in a different profession.
The alignment between their beliefs and their interests does not prove the beliefs are wrong. It raises the question of what data would suffice to show the beliefs were wrong if they were wrong. The hysterectomy establishment’s beliefs aligned with its interests for decades before the correction came. During those decades, the experts held the beliefs sincerely and applied them honestly within their own framework. The beliefs were wrong anyway. The wrongness showed only when evidence outside the framework accumulated to the point where the framework could no longer contain it.
What evidence outside Balkin and Levinson’s framework might be accumulating now? The question admits of no easy answer because the framework is designed to absorb all political developments as instances of patterns the framework already names. Trump becomes an instance of constitutional rot. January 6 becomes an instance of hardball gone too far. The Supreme Court’s transformation becomes an instance of cycles of constitutional time. Every development gets placed within the theoretical architecture. The architecture grows to accommodate the developments. The possibility that the architecture itself has become part of the problem does not register as a hypothesis the framework treats seriously.
Turner’s case suggests this is precisely the signature of an expert framework that is about to be shown inadequate. The hysterectomy framework could accommodate all of the testimony against it by categorizing each testimonial as an instance of patterns the framework already recognized. The ability to accommodate everything was part of what made the framework blind to its own failure. A framework that could be refuted would have to encounter evidence it could not accommodate. A framework that accommodates everything cannot be refuted. Its inability to be refuted is not strength. It is the specific failure mode that precedes eventual collapse.
The Honest Version
Turner’s framework produces an honest version of what Balkin and Levinson are doing that neither man could fully endorse.
They are constitutional law professors whose professional standing depends on the continued relevance of constitutional law. They have responded to signs of the profession’s declining cultural authority by developing theoretical frameworks that explain the decline as a recurring pattern the profession can address, rather than as a terminal condition that would render the profession obsolete. They have extended the profession into the blogosphere by running a blog that maintains expert authority while absorbing popular energy. They have positioned one of themselves (Levinson) as the internal critic whose heresy sets the ceiling of legitimate critique while preserving the profession’s core. They have positioned the other (Balkin) as the sophisticated theorist whose framework accommodates all developments while preserving the profession’s centrality to understanding them. The two roles complement each other in ways that make the combined operation more effective than either role alone would be.
Both men hold their positions with evident sincerity. The sincerity is structural rather than strategic. A man who spent his career becoming a constitutional law professor holds the beliefs constitutional law professors hold for the reasons constitutional law professors hold them. The beliefs feel like truth rather than like professional equipment. The feeling is accurate from inside the framework. The framework is what produces the feeling.
Turner’s oophorectomy case reminds us that sincere experts can be systematically wrong about matters their expertise covers. The wrongness does not appear as wrongness to them. It appears as accurate perception of reality. The correction, when it comes, comes from outside. The outside source may be unimpressive, unsophisticated, insufficiently credentialed. The hysterectomy bloggers were ordinary women with no medical training. Their testimony was dismissed for years. It turned out to be right. The experts who dismissed it turned out to be wrong.
What the oophorectomy case ultimately adds to understanding Balkin and Levinson is a specific humility. They may be right about constitutional rot. They may be right that the framework can be redeemed through interpretation and struggle. They may be right that Levinson’s call for a convention is heresy while remaining loyal to the broader project. Or they may be wrong in ways their sophistication makes invisible to them, while others who lack their credentials see what they cannot see. The question cannot be settled from inside their framework. It cannot be settled by their critics either, except through the slow accumulation of evidence the framework cannot absorb. Whether such evidence is currently accumulating, and whether it will force revision, is the kind of question only hindsight answers. In the meantime, reading Balkin and Levinson with Turner in mind means holding their claims in a specific uncertain space. They know things their critics do not know. Their critics see things they cannot see. Both conditions can be true simultaneously. Which matters more in any specific case depends on the specific case, and the determination requires work no framework can substitute for.
‘E Pluribus Unum: Diversity and Community in the Twenty-first Century’
Putnam’s diversity findings sit uncomfortably beside Levinson’s project. Levinson wants a new constitutional convention. He believes the American people could deliberate together and produce a better founding document than the one the 1787 Philadelphia convention produced. The proposal assumes a citizenry capable of sustained civic argument across differences, capable of trusting one another’s good faith, and capable of accepting outcomes that their local coalition did not prefer. Putnam’s data suggest that the America which would assemble such a convention today lacks the social capital the project requires. Diversity in the short-to-medium run lowers trust, engagement, and communal solidarity. A convention drawn from a low-trust, disengaged, fragmented population might produce a worse document than the one we have.
Levinson’s Philadelphia analogy obscures the problem. The 1787 convention drew delegates from a small, religiously similar, ethnically narrow population of English-descended Protestant men with shared legal training and overlapping social networks. Madison could write to Hamilton and expect to be understood. Franklin could mediate among factions who shared more than they disagreed on. The social capital that made the original convention possible was dense, local, and homogeneous in ways Putnam’s framework helps identify. A convention drawn from contemporary America would face coordination problems the Founders did not face. Levinson treats the constitutional defect as structural. Putnam’s data point toward a social-capital deficit no structural revision can cure.
Horizontal gene transfer fits Levinson’s rhetorical strategy. He borrows the authority of the founding generation’s bold constitutional revision and ports it into a present whose population, beliefs, and civic capacities differ from theirs. The signal of popular sovereignty travels. The substrate that made popular sovereignty workable does not. A new convention in 2026 would not resemble 1787 in the ways that matter for producing a workable founding document.
Phenotypic plasticity shows in how Levinson argues. In his legal scholarship he writes as a technical constitutional theorist. In his general-interest books he writes as a democratic reformer. On Balkinization he writes as a political commentator. Same commitments, different expressions shaped by the venue.
Exaptation captures what he does with the language of democratic deficit. The concept of democratic deficit emerged to describe the European Union’s legitimacy problems, bodies making binding rules without direct electoral accountability. Levinson imports the concept to attack American constitutional structure. The Senate, designed as a federal body representing states as political units, gets reframed as a democratic failure. The Electoral College, designed to mediate between popular election and federal structure, gets reframed as antidemocratic. The concept arrived for one task and gets used for another.
Signal parasitism operates on his appeal to democracy. Levinson invokes democracy to attack constitutional features that make democratic self-government workable in a large, diverse republic. Putnam’s findings suggest that the structures Levinson wants to dismantle, federalism, state-level political communities, mediating institutions, may be doing work the democracy depends on. Local political communities retain more social capital than the diverse national whole. Federalism allows decisions to be made at the scale where trust still operates. Levinson’s proposals would push more decisions to the national level where the diversity-driven trust deficit is sharpest.
The tribe’s story problem sharpens here. Levinson speaks as an internal exponent of the American constitutional tradition. He invokes Madison, Jefferson, and the founders’ willingness to revise. The framers he invokes came from a specific ethnic, religious, and cultural coalition whose social capital made their work possible. Levinson’s audience includes coalitions whose members could not meet in Philadelphia and reach agreement. The internal story of the founding gets told to external audiences whose civic conditions differ from the original telling.
Putnam’s essay also illuminates Levinson’s reception. His books appeal to a particular slice of progressive legal academics, liberal journalists, and reform-minded political scientists. They do not persuade the broader public. A 2012 survey Levinson himself discussed showed little popular enthusiasm for a new constitutional convention. The narrow appeal of his project to his own coalition, combined with public resistance, fits the pattern Putnam describes. The broader population distrusts ambitious reform projects precisely because trust in institutions and in fellow citizens has thinned. The conditions that would make Levinson’s proposals politically viable are the conditions his own coalition’s preferred policies on immigration and diversity have eroded.
Levinson acknowledges polarization and institutional distrust. He treats these as reasons to adopt his reforms. Putnam’s framework suggests the reverse. Low-trust societies produce worse constitutional conventions than high-trust societies. The reforms Levinson wants require the civic conditions his coalition’s broader program makes harder to sustain.
One further point. Levinson writes about constitutional faith as secular religion. The metaphor presupposes a community capable of sustaining faith. Faith requires a community that trusts the text’s mediation of meaning, trusts fellow believers’ good faith, and trusts the authority of shared interpretation. Putnam’s findings describe the erosion of the trust the faith metaphor presupposes. The Catholic and Protestant variants Levinson describes both require dense, high-trust communities of interpretation. The diverse, low-trust America Putnam documents cannot sustain either variant at full strength. What remains is contested fragments of the faith held by subcoalitions who read the text to support their own commitments. The constitutional faith Levinson analyzes dissolves under the social conditions Putnam describes, and Levinson’s reform proposals cannot restore it because they address structure, not the underlying social capital.
Levinson’s project stays inside the progressive coalition’s moral frame. Diversity remains a presumptive good. The Constitution’s defects get identified as structural rather than social. The fit with Putnam’s data would require Levinson to cross lines his coalition enforces. He does not cross them. The internal exponent reads the available evidence through filters his coalition installs.
‘Legal Education and the Reproduction of Hierarchy’ (1983)
Kennedy and Levinson are closer together than Kennedy and Balkin. They share a generation, a political sensibility, a position at the dissenting edge of the elite legal academy, and a willingness to say things their colleagues will not say. But Kennedy adds four things Levinson does not give you.
First, Kennedy gives you the class analysis Levinson refuses. Levinson critiques constitutional veneration as a civic religion and proposes structural reform through a new convention. His framework is democratic. His complaint is that the Constitution is undemocratic and that the legal academy treats it as sacred when it should be treated as a flawed working document. He stays inside the vocabulary of democratic theory. Kennedy says the whole vocabulary of democratic theory, as practiced in elite law schools, serves to obscure the class function of the legal profession. The Constitution is undemocratic, yes, but the deeper point is that the legal academy that teaches the Constitution is itself a class institution that reproduces a stratified bar that serves a stratified economy. Levinson does not go here. He could not go here and keep his position. Kennedy could go here because he was tenured at Harvard by the time he published and because he had already committed to the critical legal studies movement which absorbed the professional cost for him.
Levinson exposes the theology and leaves the seminary standing. He wants the Constitution read differently. He does not want the legal academy organized differently. His proposals for reform operate at the level of text and interpretation. Kennedy’s proposals operate at the level of admissions, hiring, grading, placement, salary structure. Levinson assumes that once the text is demystified, the reform will follow. Kennedy shows that the text is a symptom of the institutional structure, and that demystifying the text without restructuring the institution produces a new generation of professors who write sophisticated books about demystification while the seminary continues to credential the class that runs the country. Levinson is evidence for Kennedy’s thesis. His career demonstrates how the coalition absorbs the dissent it needs to appear open while never restructuring.
Second, Kennedy gives you the pedagogical specificity Levinson lacks. Levinson writes about what is taught. Kennedy writes about how it is taught. This distinction matters because the how is where the coalition reproduces itself. A law school could teach Levinson’s critique of the Constitution in every first-year class and still reproduce the same class of lawyers, because the reproduction happens through the cold-call, the grading curve, the law review selection, the summer associate program, not through the content of the doctrine. Kennedy sees this. Levinson does not. This is why Levinson’s critique has been absorbed by the elite academy without producing institutional change. His ideas are taught. The pedagogy that teaches them has not changed. The graduates still go to Cravath.
Third, Kennedy gives you the negative pedagogy Levinson cannot acknowledge. Levinson is a teacher who taught at Princeton and then at Texas Law for decades. He writes as a man who believes teaching is a good thing, that seminars are where ideas circulate, that his students benefit from exposure to his heterodox readings. Kennedy writes as a man who believes that the elite law school classroom is a site of damage, that what the classroom does to the student is worse than what the classroom says to the student, and that a progressive professor at Harvard Law School participates in the damage even when he teaches progressive content. This is a darker account of the teaching relation than Levinson can produce from inside his own self-understanding as a scholar-teacher. This gives a vocabulary for describing what happened to the students who sat in Levinson’s classroom. They absorbed his critique and then went to work for the Solicitor General’s office or for Cravath or for the federal bench. The critique did not transform them. The pedagogy did. The pedagogy was continuous with the pedagogy at every other elite school. Levinson the dissenter and Scalia the establishmentarian ran the same pedagogy because the pedagogy is the seminary, not the lecturer.
Fourth, Kennedy gives the insider-dissenter problem Levinson exemplifies but cannot analyze. Kennedy writes with full awareness that his position as a tenured Harvard professor who denounces the Harvard pedagogy is a paradox the coalition permits. He discusses this openly. He notes that his class, sex, race, and professional position make him suspect when he describes the oppression of hierarchy. He does not resolve the paradox. He sits with it. Levinson does not sit with the equivalent paradox in his own case. He is a famous constitutional dissenter who has been comfortably employed at elite schools for his whole career, who has published widely in the top law reviews, who has been invited to every major constitutional-theory conference, whose dissent has cost him nothing. Kennedy sees that elite dissent that costs nothing serves the coalition by providing an alibi. Levinson cannot see this about himself because seeing it would require leaving the chair the seeing depends on. Kennedy gives the theoretical vocabulary to name what we are noticing. Permitted critique. Absorbed dissent. The coalition displays its tolerance by displaying its dissenters. The dissenters prove the coalition’s openness. The openness allows the coalition to continue operating closed in every respect that matters.
Kennedy published his pamphlet outside the normal channels. He mimeographed it, passed it hand to hand, refused to submit it to a law review. The format was the argument. A man who believed the guild’s journals were captured would not publish his critique of the guild in the guild’s journals. Levinson publishes his dissent through the Yale Law Journal, through the Harvard Law Review, through Princeton University Press. The dissent circulates through the channels the dissent is supposed to be dissenting from. Kennedy noticed this distinction and made a choice Levinson has never made. The choice tells you something about both men and about what permitted critique looks like from the inside. Levinson’s choice to use the guild’s channels is inseparable from his critique’s absorption by the guild. Kennedy’s choice to bypass the channels is inseparable from his critique’s relative marginalization despite his Harvard chair.
Balkin Under Hugo Mercier and John M. Doris
Levinson’s project rests on a specific set of assumptions about how constitutional structure produces political outcomes, how citizens engage structural constitutional questions, and how reform movements could succeed in the American political system. Mercier and Doris together identify specific problems with these assumptions while preserving what is genuinely valuable in Levinson’s contribution.
Take the dysfunction thesis first. Levinson argues that specific features of the American Constitution, the Senate’s equal state representation, the Electoral College, the amendment process that makes Article V reform nearly impossible, lifetime judicial tenure, the allocation of emergency powers, produce governance outcomes that would be unacceptable in any new constitutional design. His analysis is careful, detailed, and largely correct at the descriptive level. The Senate does overrepresent small states. The Electoral College does produce outcomes disconnected from popular vote totals. The amendment process is effectively frozen. These are real features of the constitutional order, and Levinson has done important work making them visible to legal academic audiences who had taken them for granted.
Mercier’s framework adds a specific question Levinson’s analysis does not fully engage. Why do citizens not mobilize against these features? Levinson’s implicit answer is that they have been taught to revere the Constitution uncritically, that civic education has produced constitutional complacency, that elites have succeeded in naturalizing arrangements that serve their interests. The answer assumes a population whose constitutional beliefs could be otherwise if the ideological conditions were different.
The Mercier reading produces a different answer. The features Levinson identifies as dysfunctional do not generate mobilization because the stakes most citizens have in them are low. The Senate’s equal state representation affects specific populations in specific ways, residents of large states whose political preferences are regularly defeated, political scientists whose professional work analyzes the effect, Democratic strategists whose coalition suffers particular disadvantages. For these populations, vigilance on the structural question runs higher because stakes are engaged. For the general population, the Senate’s structure produces effects that are several steps removed from vital interests. A Texas voter does not experience his state’s relative overrepresentation or underrepresentation as a direct constraint on his daily life. The Electoral College affects him only in quadrennial presidential elections, and only through the aggregation of his state’s voting behavior with others. The amendment process is even more abstract. These are structural features whose effects are real at the aggregate level but operationally invisible at the individual level.
This is the reflective belief pattern Mercier specifies. Citizens hold views about the Constitution. The views do not drive behavior because the behaviors the views might produce (organizing for constitutional reform, supporting convention calls, mobilizing around structural questions) would be costly relative to any personal benefit. The costs are real. The benefits are diffuse. Mercier’s framework predicts exactly what we observe: general professed reverence for the Constitution alongside complete absence of popular mobilization for structural reform, even among populations whose stakes in specific structural features are relatively engaged.
Levinson’s framework treats this absence as evidence of ideological success by those who benefit from the current arrangements. Mercier’s framework treats it as the predictable outcome of how cognitive vigilance operates on abstract structural questions that do not touch vital interests. The two readings have different implications for what reform would require. Levinson’s reading suggests that ideological change could produce mobilization. Mercier’s reading suggests that mobilization would require changes in the stakes citizens have in structural questions, which no amount of ideological work can produce without material or situational changes that engage citizens’ operational interests in the structural features.
Doris extends the analysis into the behavioral layer. Even granting that ideological change could shift beliefs about constitutional structure at the margin, whether those beliefs would produce reform behavior depends on situational features that are not moved by ideological work. Constitutional mobilization requires specific behaviors: organizing, contributing to campaigns, voting for candidates who advocate reform, participating in Article V convention campaigns, producing public pressure on elected officials. These behaviors occur in specific situations with specific cost structures. The citizen who comes to believe that constitutional reform is necessary encounters his employer, his family, his peer network, his local political environment, all of which continue to treat the existing Constitution as settled and reform advocacy as eccentric. The situational costs of reform behavior remain high regardless of what the citizen believes. Doris predicts that behavior tracks situation rather than belief, which explains why even sympathetic citizens do not mobilize for reform.
The civil rights movement’s success, which Levinson often treats as exemplary of constitutional transformation, illustrates the pattern in reverse. Civil rights mobilization succeeded because specific populations had vital-interest stakes that activated their vigilance and generated behavioral mobilization that situational features could translate into action. Black Americans had operational stakes in equal treatment. Northern liberals had stakes in coalition politics. Cold War policymakers had stakes in eliminating Jim Crow for international reasons. The populations whose stakes aligned produced the mobilization. Situational features in specific regions, federal enforcement, corporate interests in Southern markets, media attention, produced the behavioral compliance that followed. None of this is available for structural constitutional reform in the way Levinson’s framework requires, because no populations have comparable vital-interest stakes in Senate reapportionment or Electoral College abolition that would activate their vigilance and generate mobilization.
Take Levinson’s advocacy for an Article V constitutional convention. He has been one of the most prominent academic voices arguing that Americans should consider calling a convention to address structural constitutional problems. The advocacy is intellectually serious and morally earnest. Levinson genuinely believes that the Constitution’s structural features produce dysfunction that reform could address, and that democratic self-government requires the American people to face the reform question honestly.
The Mercier-Doris framework predicts that the convention advocacy cannot succeed through the channels Levinson’s framework identifies. The mass mobilization that would legitimate a convention call does not exist and cannot be generated by intellectual advocacy because the cognitive and situational conditions for mobilization are not present. The state legislatures that would have to call the convention operate within party-political situations whose incentives do not align with structural reform. The populations whose support the reform movement would need are running reflective beliefs about the Constitution alongside operational vigilance on specific issues that the constitutional structure affects only indirectly. The advocacy reaches specialized legal academic audiences and a small layer of engaged constitutional reformers. It does not reach the broader populations whose mobilization would be required.
This does not mean the advocacy is worthless. It means the advocacy’s function is different from what Levinson’s framework implies. The advocacy produces valuable intellectual work that circulates within the constitutional theoretical community. It educates law students about structural constitutional questions they would otherwise take for granted. It provides a specific vocabulary for thinking about constitutional dysfunction that is genuinely useful for analytic purposes. It signals to engaged constitutional reformers that academic allies exist. These are real contributions. They are not the democratic constitutional transformation the advocacy framing suggests is achievable.
The specific populations that run operational vigilance on constitutional questions are worth specifying because they illustrate where Levinson’s work actually lands. Constitutional law professors and their students engage Levinson’s work as part of their professional formation. They are the population whose stakes are most directly engaged by the work, because their careers depend on producing sophisticated constitutional analysis. Levinson’s framework provides them with positions to argue, frameworks to apply, and a distinctive voice to engage. This is the professional constitutional theoretical community, and it is Levinson’s primary audience.
A second population is the engaged public intellectual audience that reads Balkinization, reads constitutional books from academic presses, follows constitutional debates on opinion pages and in serious magazines. This population is small but influential in the sense that its members populate elite political, legal, and policy positions. They absorb Levinson’s framework and apply it in their own work, producing doctrinal arguments, policy positions, and political commentary that reflects his influence. This is where Levinson’s framework achieves its actual cultural reach.
The third population Levinson’s framework invokes, the general democratic public capable of popular constitutional mobilization, does not engage the work. The general public’s constitutional beliefs are reflective, its structural constitutional knowledge is thin, and its stakes in structural constitutional questions are too remote from vital interests to activate the vigilance that would produce mobilization.
Levinson’s work therefore succeeds at the levels Mercier’s framework predicts it can succeed and does not reach the levels the framework predicts it cannot reach. The specialized professional community engages the work seriously. The engaged public intellectual audience absorbs it and applies it. The general public does not encounter it and would not mobilize even if it did, because the cognitive and situational conditions for mobilization are not present.
Take Levinson’s more recent work on the Second Amendment and on executive power. He has written sophisticated analyses of both questions that have influenced academic discussions of gun rights and emergency powers. His positions on these questions have sometimes surprised his liberal allies. He has been willing to take the Second Amendment’s individual rights interpretation more seriously than many liberal constitutional scholars, and he has been willing to identify executive power expansions under Democratic presidents as precedents that will be used by Republican presidents.
Mercier’s framework predicts the specific reception pattern for this work. Levinson’s willingness to break with his expected coalition on specific questions has made him valuable to constitutional theoretical audiences that run operational vigilance on consistency and intellectual honesty. A scholar who can be predicted from his coalition affiliation produces less useful work for those who want to think through constitutional questions independently of coalition identification. Levinson’s willingness to depart from the liberal consensus at specific points signals that his analysis is driven by constitutional reasoning rather than coalition alignment.
This is a real virtue, and the Mercier-Doris framework credits it specifically. A scholar who runs operational vigilance on his own positions and adjusts them when the analysis requires, even at some coalition cost, produces more reliable work than a scholar whose conclusions track coalition expectations perfectly. Levinson has done this consistently. His positions on the Second Amendment, on executive power, on constitutional faith, on specific structural questions, do not map cleanly onto any coalition’s expected output. This consistency of intellectual independence is what makes his work valuable beyond coalition uses.
The framework also explains why this independence has costs Levinson bears personally. Coalition-dependent scholars accumulate coalition rewards: citations within coalition publications, speaking invitations to coalition events, placement of students in coalition institutions. Scholars who break with their coalitions on specific questions accumulate these rewards less reliably. Levinson has paid some price for his willingness to go his own way. The price is worth paying for the intellectual independence, but the framework notes that paying it requires situational security that most scholars do not have. Levinson has tenure at a top law school, established scholarly reputation, and no particular career advancement he needs coalition patronage to achieve. His situation permits the independence. Scholars earlier in their careers, or in less secure institutional positions, face situations that impose higher costs on similar independence.
Take Levinson’s work on interpretive communities and constitutional faith, developed earlier in his career and elaborated in ongoing work. He argues that constitutional meaning is produced within specific interpretive communities whose members share background assumptions, vocabulary, and standards of argument. The communities legitimate particular readings and exclude others. Constitutional change occurs when the boundaries of interpretive communities shift, admitting new readings and excluding old ones.
The framework anticipates Mercier-Doris moves in a specific way. Levinson’s interpretive communities are essentially what Mercier’s framework would call stakes-organized populations within specific professional and intellectual situations. The communities’ members run operational vigilance on constitutional questions within the community’s framework because their professional standing depends on doing so. Members of different communities run different vigilance because their stakes differ. The communities’ boundaries are maintained by situational features of professional life: hiring decisions, citation practices, publication venues, conference invitations. Changes in community boundaries occur when situations change in ways that shift the stakes of community members.
Levinson’s framework therefore captures something Mercier-Doris would endorse, though his framework expresses it in interpretive rather than cognitive-behavioral terms. The translation between the two vocabularies is relatively clean. Interpretive communities are stakes-organized populations in professional situations. Constitutional meaning is what these populations produce through their stakes-activated vigilance on constitutional materials. Change occurs through situational and stakes shifts that alter what the populations produce.
This convergence is worth naming because it illustrates something about Levinson’s work that the cruder Mercier-Doris critique would miss. Levinson has actually been working, in a different vocabulary, on many of the same problems Mercier and Doris specify. His work does not need to be fundamentally revised to accommodate the framework. It needs to be translated into the framework’s vocabulary and its assumptions made explicit. When this is done, much of what Levinson has argued becomes clearer and more defensible, not less.
The primary overreach in Levinson’s work is in the reform advocacy rather than in the analytical framework. The analytical framework is sophisticated and largely compatible with Mercier-Doris. The reform advocacy assumes that intellectual work can produce popular constitutional mobilization that the cognitive and situational evidence says it cannot produce. Levinson’s reform project therefore has a specific limit that his analytical framework acknowledges implicitly but his advocacy framing does not confront directly. The interpretive communities he has analyzed can engage his reform proposals seriously within their professional situations. The broader democratic public he would need for actual reform does not engage the work and cannot be brought to engage it through the channels his advocacy assumes.
Levinson’s institutional position at the University of Texas Law School illustrates the career pattern Mercier and Doris together predict. Texas is a less prestigious platform than Yale or Harvard but a serious law school with a national profile. Levinson has built his position through sustained high-quality work across five decades. The institution rewards the kind of contributions he produces. His relationship to the constitutional theoretical community is durable because his output has been consistently valuable to that community. A Levinson placed at Yale would have produced somewhat different work reflecting Yale’s specific situation. A Levinson placed at a regional law school would have produced work reflecting that institution’s different situation. The Texas situation has produced the specific Levinson we have: a serious constitutional theorist with national influence, a willingness to take unconventional positions, and a public intellectual voice that reaches beyond the specialized community without requiring the full institutional entanglement of Ivy League placement.
Mercier’s framework adds that Levinson’s audience structure reflects his specific situation. His primary audience is the constitutional theoretical community, which he serves through high-quality scholarship in the expected venues. His secondary audience is the engaged public intellectual community, which he reaches through accessible books and public commentary. His aspired audience, the broader democratic public capable of constitutional reform mobilization, he does not reach and cannot reach through the channels available to him. This is not a failure of his work. It is the structural condition his work operates within, and which his reform advocacy framing does not fully register.
What survives the combined critique is a substantial Levinson whose contribution is valuable at the levels his work actually reaches. The analytical framework is sophisticated, provocative in useful ways, and largely compatible with Mercier-Doris once the vocabularies are translated. The willingness to break with coalition expectations on specific questions is a genuine intellectual virtue the framework credits specifically. The influence on constitutional theoretical discourse is real and will persist through his students and the work they produce. The identification of structural constitutional dysfunctions is valuable descriptive work that makes visible features the legal academy had taken for granted.
The overreach is in the reform advocacy, which invokes democratic mobilization that cognitive and behavioral evidence says is not available. The overreach is not fatal to the project because Levinson’s analytical framework does most of the actual work and the reform advocacy is the aspirational framing that sits on top of it. Stripped of the aspirational framing, the analytical framework remains valuable. The aspirational framing serves some rhetorical purposes within the specific audience Levinson reaches, but it does not describe a possibility the evidence supports.
A specific comparison with Balkin is worth drawing. Balkin’s framework requires popular constitutional engagement as a legitimating mechanism, and the Mercier-Doris critique of that requirement is severe because the whole architecture depends on it. Levinson’s framework uses popular engagement as an aspirational framing for reform advocacy, but his analytical core, the interpretive communities account, is compatible with Mercier-Doris and can survive without the aspirational overlay. The difference is subtle but consequential. Balkin’s project would require substantial revision to survive the critique. Levinson’s project requires only that the reform advocacy be held at arm’s length while the analytical framework continues its work. This is why Levinson’s project, despite its similar ambitions, is more resilient under the framework than Balkin’s.
Levinson takes religion as both subject matter and analytical lens while operating from a position that is more thoroughly buffered than Balkin’s. The 1988 Constitutional Faith uses the vocabulary of religion to describe American constitutional veneration, but the use is analytical rather than participatory. Levinson studies constitutional faith. Balkin practices it. The difference is what Taylor’s framework illuminates.
Levinson’s constitutional Protestants versus constitutional Catholics distinction is itself a buffered move. It treats religious categories as structural templates that can be applied to secular constitutional practice. The application is illuminating. It is also an analytical appropriation rather than a religious engagement. A believer who experiences the Constitution as sacred text does not typically describe herself as a constitutional Protestant or Catholic. She just reads the text as authoritative. The categorization comes from outside the experience, imposed by a scholar who sees the experience but does not quite share it in its most intense form.
This is what a secularized Jewish intellectual tradition provides. Levinson brings the Talmudic sensibility to American civic religion without bringing the religious commitment that animated Talmudic study for its original practitioners. The interpretive habits transfer. The phenomenological source does not. Levinson reads the Constitution as a text subject to ongoing argument. This is the Jewish hermeneutical tradition turned into secular analytical method. The method works. The transfer to secular material is itself a feature of buffered modernity. Religious practices become analytical tools available to buffered scholars who no longer participate in the religious practices that generated them.
The Levinson-Balkin contrast sharpens the point. Balkin retains enough residual faith to keep diagnosing constitutional rot as a loss rather than as simply a structural feature. Levinson has moved further toward buffered analysis and therefore can reach conclusions Balkin cannot reach. Our Undemocratic Constitution argues the document is structurally broken and should be replaced through constitutional convention. This conclusion requires treating the Constitution as designed artifact rather than sacred text. A believer cannot reach this conclusion because belief treats the object as worth preserving despite its flaws. Levinson can reach it because his analytical distance permits evaluating the document on its functional merits.
This is the buffered move in its most developed form. The sacred becomes the analytical. The object that once commanded reverence becomes a thing to be engineered, assessed, redesigned. Taylor’s framework predicts exactly this sequence. Enchantment becomes analysis becomes redesign. Each stage further removes the subject from the phenomenological condition that made the original reverence possible.
Levinson is aware of what he is doing. Constitutional Faith explicitly frames the question of whether one can maintain constitutional faith while recognizing the document’s flaws. His answer has evolved over time. The early Levinson holds faith while interrogating it. The later Levinson has moved closer to treating the faith as something that a rational citizen should abandon in favor of institutional redesign. The trajectory is itself a case study in the buffered drift Taylor describes. Starting with internal engagement with sacred practice. Moving through analytical interrogation. Arriving at proposals for redesign that would not be imaginable from within the original practice.
The Jewish dimension is important here. Levinson is a secularized Jew writing about American civil religion. The position provides specific analytical leverage. He can see American constitutional veneration as a religion because he stands outside the religion as a Jew, and because he has intellectual tools from Jewish hermeneutics for engaging authoritative texts. He can also see how the religion might be criticized from within because the Jewish tradition he comes from had its own prophetic tradition of internal criticism. The prophet-critic role is available to him because the model exists in his inherited tradition even if he does not practice that tradition in its porous form.
This is different from Haque. Haque brings porous religious commitments into buffered institutional spaces. Levinson brings the analytical residue of a religious tradition into buffered institutional spaces without the religious commitments that originally animated the tradition. Haque’s daily prayer is porous engagement with God. Levinson’s relationship to Jewish tradition is substantially analytical and identitarian. The difference is not a criticism of Levinson. It is simply a description of where he sits on the axis Taylor identifies.
What this means for evaluating Levinson’s work. His most distinctive contributions operate through the analytical distance that buffered modernity makes possible. Seeing the Constitution as civil religion requires the distance. Proposing constitutional convention requires the distance. Criticizing constitutional Catholicism requires the distance. All of these moves are available to a buffered scholar examining civic religious practice from outside. They are not available to a believer. The value of the work depends on the distance.
The limit of the work also follows from the distance. Levinson cannot mobilize the kind of quasi-religious commitment that Balkin tries to sustain. When he calls for constitutional convention, his readers can either accept the call as rational political proposal or reject it. There is no middle register of faith-commitment that would make the proposal feel like a redemptive project rather than an engineering fix. Levinson has written himself out of the religious register by moving too far into analytical distance. He retains the vocabulary of religion as analytical tool. He does not retain the religious phenomenology that would allow the vocabulary to function religiously in his readers.
This is one reason Our Undemocratic Constitution has had less uptake than its arguments might warrant. The arguments are substantially correct. The Senate is malapportioned. The Electoral College is distorting. The amendment process is frozen. Any engineer evaluating the Constitution as a system would identify these failures. But political systems do not work as engineering problems. They work as sustained collective commitments that require something like religious practice to maintain. Levinson’s proposals treat the Constitution as engineering problem. The audience that could implement his proposals would need to treat the Constitution as engineering problem too. That audience is specifically the audience least able to generate the political energy required for constitutional convention. The people who would vote for a convention are precisely the people who still have quasi-religious commitment to the constitutional order. Levinson’s arguments appeal to buffered engineers. The buffered engineers have no political power. The politically powerful constituencies are quasi-religious constituencies who find Levinson’s buffered analytical distance off-putting.
Taylor’s framework makes this structural condition visible. Levinson operates at a point on the buffered-porous axis that is analytically productive but politically unproductive. The analytical productivity generates his distinctive scholarly contributions. The political unproductivity is why those contributions have not translated into actual institutional change. The two features are two sides of the same coin. The distance that permits the analysis also prevents the mobilization.
The comparison with Balkin sharpens further. Balkin holds enough residual faith to remain politically engaged with the existing order. His constitutional rot diagnosis is a mobilizing frame for liberal constitutionalists who still believe in the order and want to arrest its decline. Balkin’s readers can act on his diagnosis because the diagnosis assumes the order is worth saving. Levinson’s diagnosis assumes the order is broken beyond repair and should be redesigned. Levinson’s readers cannot act on his diagnosis because his conclusion requires a political mobilization that his own framework cannot generate. Balkin is the pragmatic prophet calling for renewed commitment. Levinson is the detached analyst calling for redesign. Taylor’s framework suggests that Balkin’s position, however intellectually compromised, is politically more tenable because it operates at a point on the axis where political mobilization remains possible. Levinson’s position is analytically more rigorous but politically inert.
Levinson’s Jewish background matters here in a specific way. The Jewish tradition provides a model of maintaining commitment to a tradition while subjecting it to searching internal criticism. This is the Talmudic mode. Levinson applies it to the American Constitution. But the Talmudic mode functioned religiously because the practitioners maintained porous engagement with the tradition they were criticizing. The criticism came from within the commitment. Levinson has moved further toward analytical distance than the Talmudic mode permits. He has kept the form (searching internal criticism) without the substance (porous commitment that makes the criticism constructive rather than destructive). The result is sharp analysis that cannot find political traction because it no longer speaks from within the commitment whose practice it criticizes.
In his 2018 book, The Great Delusion: Liberal Dreams and International Realities, John J. Mearsheimer wrote:
My view is that we are profoundly social beings from the start to the finish of our lives and that individualism is of secondary importance… Liberalism downplays the social nature of human beings to the point of almost ignoring it, instead treating people largely as atomistic actors… Political liberalism… is an ideology that is individualistic at its core and assigns great importance to the concept of inalienable rights. This concern for rights is the basis of its universalism—everyone on the planet has the same inherent set of rights—and this is what motivates liberal states to pursue ambitious foreign policies. The public and scholarly discourse about liberalism since World War II has placed enormous emphasis on what are commonly called human rights. This is true all around the world, not just in the West. “Human rights,” Samuel Moyn notes, “have come to define the most elevated aspirations of both social movements and political entities—state and interstate. They evoke hope and provoke action.”
[Humans] do not operate as lone wolves but are born into social groups or societies that shape their identities well before they can assert their individualism. Moreover, individuals usually develop strong attachments to their group and are sometimes willing to make great sacrifices for their fellow members. Humans are often said to be tribal at their core. The main reason for our social nature is that the best way for a person to survive is to be embedded in a society and to cooperate with fellow members rather than act alone… Despite its elevated ranking, reason is the least important of the three ways we determine our preferences. It certainly is less important than socialization. The main reason socialization matters so much is that humans have a long childhood in which they are protected and nurtured by their families and the surrounding society, and meanwhile exposed to intense socialization. At the same time, they are only beginning to develop their critical faculties, so they are not equipped to think for themselves. By the time an individual reaches the point where his reasoning skills are well developed, his family and society have already imposed an enormous value infusion on him. Moreover, that individual is born with innate sentiments that also strongly influence how he thinks about the world around him. All of this means that people have limited choice in formulating a moral code, because so much of their thinking about right and wrong comes from inborn attitudes and socialization.
Mearsheimer says liberalism downplays the social nature of human beings to the point of almost ignoring it. Levinson has spent decades pointing out that the American constitutional tradition’s reverence for the document has acquired the character of civil religion rather than the character of considered allegiance. Constitutional Faith by Sanford Levinson treats the relationship most Americans have to the Constitution as something closer to religious commitment than to political deliberation. The book accepts that humans relate to political institutions through deep attachment rather than through the abstract deliberation liberal theory presupposes. This is Mearsheimer-compatible on the recognition that political life runs through socialized commitment rather than through buffered reasoning.
Levinson’s structural arguments push the same direction. He has argued that the Senate’s malapportionment, the Electoral College, the difficulty of constitutional amendment, the lifetime tenure of federal judges, and the Article V amendment process produce dysfunctions that careful citizens reasoning together would never choose. The argument implicitly concedes that the actual American polity does not consist of careful citizens reasoning together. The polity consists of populations whose constitutional attachments were installed before they could examine them and whose political behavior runs through coalition formation rather than through individual deliberation. Levinson does not make this concession in Mearsheimer’s terms. The structure of his argument requires it.
Levinson’s structural critique presupposes that a better system would produce better outcomes by buffered-liberal criteria. The Senate distorts majoritarian preference. The Electoral College distorts majoritarian preference. The amendment process locks in arrangements majorities would change. Each critique assumes that majoritarian preference, properly aggregated, expresses something the political system should track. The framework treats majoritarian preference as the relevant standard against which constitutional structures should be measured.
Mearsheimer’s passage dissolves the premise. If humans are tribally constituted and reason operates downstream of socialization, majoritarian preference is the aggregated output of tribal commitments produced by particular socialization processes. There is no privileged sense in which majoritarian preference reflects the considered choices of free individuals. The preferences come from the formations. The aggregation produces a coalition’s victory. The losing coalition does not lose because its preferences are less rational. It loses because its tribal numbers are smaller in the relevant electorate at the relevant moment.
Levinson’s critique therefore cannot rest on the ground he wants it to rest on. He wants to say: the structures produce outcomes that diverge from what citizens, considered as reasoning agents, would choose. The framework says: there are no citizens considered as reasoning agents. There are populations of tribally constituted members whose preferences run through their formations. The structures do not divert the polity from a better path the polity would otherwise take. The structures shape which coalitions can win which contests at which moments. Different structures would shape the contests differently. None of the possible structures would produce the aggregation of pure reasoned choice Levinson’s framework presupposes.
The work that survives Mearsheimer’s passage best is Constitutional Faith. The book treats American constitutional life as a religion in the operative sense: a tradition of attachments, rituals, sacred texts, foundational stories, and inherited commitments that shape how members of the polity perceive their political lives. Levinson treats this not as a deficiency but as a fact about how the system works. American constitutionalism is held the way religious commitments are held. Reform of the system has to operate through the religious register, not against it.
The framework deepens this insight. If humans are tribally constituted and reason operates downstream of socialization, religious-character attachment is the normal mode of political life rather than a degenerate version of something else. Constitutional faith is not a failure to achieve buffered deliberation about political institutions. It is what political life is. Levinson’s earlier book accepts this descriptively. His later structural-reform books pull against it. The inconsistency is the gap the framework illuminates.
A Levinson who fully accepted Mearsheimer’s anthropology would have to drop the structural-reform program or reframe it. The reform program assumes that better structures will produce better outcomes by criteria the polity can be brought to share through deliberation. The framework says the polity does not share those criteria and cannot be brought to share them through deliberation, because the criteria themselves are the products of formations that most members of the polity do not have. The reform program is one tribe’s vision for what the system should produce. Other tribes have their own visions. The contest among visions is not resolvable by structural argument because the visions are downstream of the formations and the formations are not amenable to argument.
IV. The Conventional Constitutional Convention
Levinson’s most sustained reform proposal has been a constitutional convention. He has argued for decades that the polity should convene a convention to consider structural reforms the existing amendment process makes practically impossible. The argument has not gained traction at the level of actual politics. The framework predicts the non-traction.
A constitutional convention would be a coalition contest. The coalitions that currently exist would attempt to install their preferred substantive vision in the new document. The result would not be a buffered-deliberative refinement of the existing system. It would be a contest among the coalitions for the new framework’s substantive content. The coalition that won the convention would impose its vision. The coalition that lost would treat the new document as illegitimate and would work to undermine it.
Levinson has occasionally acknowledged this risk but treats it as a problem to be managed rather than as the central feature of any actual convention. The framework predicts that the central feature is the coalition contest, not the deliberative refinement. Buffered-liberal anthropology lets Levinson imagine a convention as a deliberative body. The framework says no actual convention would be a deliberative body. Every actual convention is a coalition contest dressed in deliberative vocabulary. The dressing depends on the participating coalitions agreeing to wear it. American coalitions have lost the capacity to wear it.
The pre-condition for a productive constitutional convention is a polity in which the major coalitions share enough substantive vision that a convention can refine details. The framework says American coalitions do not share enough substantive vision. Levinson’s convention proposal therefore requires conditions that do not exist. The proposal cannot succeed because the conditions are absent. The conditions are absent because the polity is what it is, not because some accident has prevented the polity from being something else.
Levinson has criticized the constitutional system as severely as any prominent American legal academic. He has called the document undemocratic. He has called for its replacement. He has written books treating American constitutional governance as a failure on multiple dimensions. The criticism has not led him to abandon the institutional position from which it is delivered. He held the W. St. John Garwood and W. St. John Garwood Jr. Centennial Chair in Law at the University of Texas Law School. He has held visiting positions at Harvard, Yale, and other elite institutions. He has been a fellow of the American Academy of Arts and Sciences. He has accumulated the honors of the institution he criticizes.
The framework treats this not as hypocrisy but as the normal condition of the buffered-liberal critic operating from inside the buffered-liberal apparatus. The criticism is housed by the institution because the criticism takes the form the institution recognizes as scholarship. A critic who delivered the same content in a register the institution did not recognize would not be housed. Levinson has delivered the criticism in the institution’s register. The institution has rewarded him. The pattern is what the institution does to maintain the appearance of openness while constraining the content of permissible criticism.
A Levinson who fully accepted Mearsheimer’s anthropology would have to recognize his own institutional position as the operating condition of his critique. The critique works because it is housed. The housing requires the buffered-liberal register. The register constrains what the critique can say. The constraint is invisible from inside. The invisibility is what lets the critic continue to believe his critique is reaching the institution rather than being absorbed by it.
The structural-reform books continue to appear. The convention does not occur. The institution continues to honor the critic. The framework predicts that this is the stable arrangement. The institution gets a credentialed critic who validates its appearance of openness. The critic gets a position from which to deliver criticisms the institution can absorb. Both parties benefit. Neither has incentive to examine the arrangement.
Levinson distinguishes between the “soft” constitution of rights and the “hard” constitution of structure. He argues that the legal academy has lavished attention on the soft constitution while ignoring the hard. He argues that the hard constitution is where the real action is and where reform is most needed. The distinction is one of his more durable analytical contributions.
The framework cuts the distinction differently. The soft constitution operates as the buffered-liberal apparatus’s procedural language. Rights talk, due process, equal protection, and the rest are the vocabulary the apparatus uses to manage substantive disagreement among the formations the apparatus governs. The hard constitution structures the contest among coalitions: which coalitions can win which offices when, which coalitions need to cooperate to legislate, which coalitions can block which actions. The hard constitution is more honest because it openly acknowledges that the polity consists of contesting coalitions whose strength varies by office and procedure.
Levinson’s preference for hard-constitutional analysis is therefore a step toward the framework’s anthropology even where the framework would push the analysis further. The framework says the soft constitution is also coalition vocabulary, not just the hard constitution. Levinson’s distinction implies that the soft constitution names something more than coalition vocabulary, that rights have substance the hard constitution lacks. The framework dissolves this implication. Rights are the procedural vocabulary one tradition’s coalitions have used to articulate their commitments. Other traditions use other vocabularies. The hard constitution structures which traditions can win when. The soft constitution dresses the substantive commitments of the winning traditions in universalist vocabulary.
A Levinson who fully accepted the framework would extend his hard-constitutional analysis to the soft constitution. He would treat rights vocabulary as the language of the formations that produced it rather than as universal protections the structures should better implement. He has not made this move. The buffered-liberal residue in his framework prevents it. He continues to treat rights as substantively real even while treating the structures that produce them as malformed.
Constitutional Faith treats American constitutionalism as a religion. Levinson is willing to apply the analysis to others. The framework asks whether he is willing to apply it to himself. The structural-reform program is itself a religious commitment. It treats certain configurations of governance as more legitimate than others by criteria the program cannot defend without circularity. Majoritarianism, anti-malapportionment, easy amendment, term limits for justices, none of these is a self-evident requirement of just government. Each is the substantive commitment of a particular tradition that Levinson has been formed inside. He treats the commitments as the conclusions of careful analysis. The framework treats them as the formation he carries.
This is not a charge of hypocrisy. The framework makes the same observation about every theorist of constitutional reform. Each theorist’s preferred configuration is the configuration his formation has taught him to prefer. There is no buffered position from which a theorist evaluates configurations against criteria independent of his formation. The criteria themselves come from the formation.
Levinson’s structural critique therefore lives in the same religious register as the constitutional faith he describes others holding. He has not noticed this about himself. The framework predicts the non-noticing. A theorist who noticed would have to abandon the structural-critique register or recast it in a different vocabulary. Levinson has done neither. He continues to deliver structural criticism as if the criticism stood above the religious commitments it analyzes. The framework says the criticism is one of the religious commitments, not a position above them.
Levinson has lamented for decades that his structural arguments do not gain traction in American politics. The Senate persists. The Electoral College persists. The amendment process remains nearly impossible to use. No constitutional convention has been called. The lament is sincere. It is also a lament that the framework predicts.
Mearsheimer’s passage explains why structural-reform arguments do not move the populations that benefit from existing structures. The populations that benefit are formations whose substantive commitments are advanced by the current arrangement. The Senate gives smaller-state populations protection against majoritarian erosion of their substantive commitments. The Electoral College gives the same populations a louder voice in presidential selection. The amendment difficulty protects existing arrangements against rapid reform. These are not technical accidents that better deliberation would resolve. They are coalition advantages held by formations that have no interest in surrendering them.
Levinson’s arguments do not move these formations because the arguments operate in a register the formations do not inhabit. He addresses the structural arrangements as if they were technical malfunctions that the polity, considered as a deliberating body, would correct upon recognition. The polity is not a deliberating body. It is a population of contesting formations. The formations that benefit from the structures will not surrender them. Argument cannot move them, because argument operates downstream of the formation and the formations are not downstream of the same argument-producing tradition Levinson inhabits.
The framework predicts that Levinson will continue to deliver the arguments and the audience he wants to reach will continue not to listen. He has been delivering the arguments for thirty years. The audience has not listened. The framework explains the persistence of both his delivery and the audience’s non-reception. He cannot stop because the role he has built requires the delivery. They cannot listen because the formations they carry do not register the arguments as compelling. The standoff is stable. The framework predicts continuation rather than resolution.
Levinson’s position has elements of the outsider. He is at Texas rather than at Harvard or Yale. He is a Jewish constitutional scholar in a field whose mainstream remains largely Protestant in cultural formation. He has been willing to make arguments his more institutionally placed colleagues have not made. The combination has given him a position somewhat askew to the field’s center.
The framework reads the asskewness as another version of the housing-the-critic pattern. Levinson’s outsiderness has been institutionally productive. It has given him material to work with. It has provided the angle from which the structural critique gets delivered. It has not made him an actual outsider. He has held a chair at a flagship state law school, has visited at the most elite institutions, and has been honored by the academy he criticizes. The outsiderness is a position the institution offers to certain credentialed critics. Levinson has occupied it well. The institution has been served by his occupation of it.
The framework says no fully outsider position is available inside the elite legal academy. The academy structures the positions it offers. The most outsider-coded positions are the positions the academy uses to demonstrate its openness. Levinson has occupied one of those positions for decades. The occupation has been productive for both parties. It has not produced the outcomes the structural critique aims at, because the structural critique cannot produce those outcomes from any position the academy houses.
Levinson is eighty-five. His career has been long, productive, and credentialed. He continues to write. He continues to call for a constitutional convention. He continues to publish in elite venues. He continues to be invited to give lectures and to consult on legal-political controversies. The career has the shape the framework predicts for a credentialed structural critic operating from inside the buffered-liberal apparatus. The role has been productive. The structural reforms have not occurred. The non-occurrence is the framework’s prediction.
If Mearsheimer’s passage is correct, Levinson’s career has been a fifty-year illustration of what the buffered-liberal apparatus does with its credentialed critics. It houses them. It rewards them. It absorbs their criticism into its own self-presentation as an open and self-critical tradition. It does not enact their reforms, because the reforms presuppose conditions the polity does not satisfy. The critic and the apparatus develop a stable arrangement in which the critic produces criticism the apparatus can absorb and the apparatus produces honors the critic can accept. Both parties benefit. Neither examines the arrangement.
A Levinson who fully accepted the framework would have to face several uncomfortable recognitions. His structural-reform arguments cannot achieve what they aim at. His position inside the institution he criticizes is a function the institution offers credentialed critics. His own commitments are the products of formations he has not examined. His distinction between structural realism and constitutional-faith analysis collapses when applied to his own position. The recognitions would not improve his arguments. They might dissolve them. The framework does not require him to make the recognitions. It predicts that he will not, because making them would dismantle a career that has otherwise been institutionally successful.
What survives best is Constitutional Faith. The book accepts the religious-character of American constitutional life. The book does not require buffered-liberal premises to operate. A scholar who fully accepted Mearsheimer’s passage could continue to do Constitutional Faith-style analysis. The structural-reform program would have to be abandoned or reframed. The convention call would have to be dropped. The hard-constitution-versus-soft-constitution distinction would have to be extended into territory Levinson has not pursued.
The work that would remain available to a post-Mearsheimer Levinson is the work of describing American constitutionalism as a religion, with the analytical care that requires, including the analytical care turned on the describer himself. This is not the work Levinson has chosen to do across his career. He has done the work that the buffered-liberal apparatus rewards: structural critique delivered in the apparatus’s register. The work has been institutionally successful. It has not, by the framework’s lights, accomplished what it set out to accomplish, because what it set out to accomplish required conditions the framework specifies as unavailable.
His legacy will likely be the structural-reform program. The framework predicts that the program will be remembered as a sustained but unsuccessful project of an elite legal academic who did not accept the anthropology that would have explained his program’s failure to produce the outcomes it sought. Constitutional Faith will likely fade in citation. The structural-reform books will likely fade as the field moves through the next round of crisis and the field’s attention turns elsewhere. The framework predicts that none of the work will continue to be read as the field’s center of gravity moves toward whatever comes next. The career will be remembered as the field remembers careers like it: as a sustained voice in a particular period, eventually superseded by figures whose work addresses different questions in different registers. The framework does not say the work is bad. It says the work is what it is, produced by the formation that produced it, addressed to an audience that did not respond, ending where careers like it end.