Luke Ford

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.

The Four Questions

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.

The Tacit

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.

‘Arguing is BS’

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.

Charisma and Social Paradoxes

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.

Charisma and Social Paradoxes

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.

A Big Misunderstanding

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.

Hybrid Vigor

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.

Hero System

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.

Divided Loyalties

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.

Buffered & Porous Selves

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.

The Great Delusion

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.

Jack M. Balkin was born August 13, 1956, in Kansas City, Missouri. He holds the Knight Professorship of Constitutional Law and the First Amendment at Yale Law School, where he has taught since 1994. He is on leave for spring 2026.
He took his A.B. at Harvard in 1978 and his J.D. there in 1981. He clerked for Judge Carolyn Dineen King on the Fifth Circuit, then spent two years as a litigation associate at Cravath, Swaine & Moore in New York. His first teaching post was at the University of Missouri-Kansas City from 1984 to 1988. He moved to the University of Texas in 1988. Yale hired him away in 1994. He completed a Ph.D. in philosophy at Cambridge in 1995.
The Cambridge training gave him a taste for continental and post-structuralist thought and a durable interest in how systems of meaning hold together. His early work on ideology and culture worries at questions he later carries into constitutional theory. How do belief systems reproduce themselves? How does language shape what counts as reasonable? When he turns to law, the Constitution becomes a cultural artifact that claims authority across time while constantly reinterpreted by actors with competing interests.
His signature move is framework originalism, set out in Living Originalism. This book argues that original meaning and living constitutionalism are not opposites. The Constitution sets a framework of institutions and broad principles. The work of filling in that framework happens through what Balkin calls construction, a process shaped by courts, movements, and political coalitions across generations. Scalia insisted that fidelity to original meaning constrains judges and protects democratic legitimacy. Balkin replies yes, then points out that the Constitution uses broad terms that demand elaboration. Liberals can speak the language of originalism without surrendering outcomes. Conservatives can claim fidelity to the text while operating in a world where doctrine changes.
Constitutional Redemption: Political Faith in an Unjust World treats constitutionalism as political faith. The Constitution, in his telling, is unfinished and often unjust. Commitment to it rests on the belief that it can be redeemed through interpretation and struggle.
Legal doctrines do not hold fixed political valences. A First Amendment argument that once protected labor organizers and civil rights protesters later protects corporations fighting campaign finance rules. Balkin tracks how this happens. The doctrinal architecture stays stable while different coalitions capture it for different purposes.
Constitutional rot, his most widely cited concept, names a slow decay of democratic institutions. Balkin identifies four drivers: rising polarization, loss of trust in government, economic inequality, and policy disaster. Hardball means playing within the rules while pushing them to the edge, filibustering everything, refusing hearings for judicial nominees, shutting down the government. Rot describes a condition where elites stop caring whether the underlying purpose of the rules gets served. The rules become moves in a game of raw advantage. Institutions still function on paper, but the public goods they were built to produce begin to vanish.
His collaboration with Sanford Levinson draws the boundaries of this diagnosis. Democracy and Dysfunction is a book-length exchange between the two scholars on the health of American democracy. Levinson presses harder. He argues that the Constitution’s structural flaws, the Senate’s malapportionment, the Electoral College, the near-impossibility of amendment, might require a new convention. Balkin names the decay but keeps faith with the existing frame.
The Cycles of Constitutional Time sets out a theory of American political development as a pattern of polarization, decay, and reconstruction. It updates Bruce Ackerman’s account of constitutional moments and Stephen Skowronek’s analysis of presidential regimes. Balkin argues that the current period of strain fits a recognizable cycle. The framing recasts what feels like unprecedented crisis as a pattern Americans have lived through before. If the country has passed through such moments and reconstituted itself, the present might yield to renewal rather than collapse.
Memory and Authority: The Uses of History in Constitutional Interpretation examines how lawyers, judges, and citizens deploy history to give constitutional arguments authority. Balkin distinguishes several uses of history. Some appeals look for the original meaning of a text. Others mine the past for examples, warnings, and national memory. The book tracks how each use shapes legal argument. It also responds to the current Court’s style of originalism, which picks through history for results while claiming the authority of settled fact.
His First Amendment work tracks the collapse of the mid-twentieth-century media ecology. The old model assumed a few gatekeepers, identifiable speakers, and a public of readers and viewers. That world is gone. Platforms mediate most public speech. Algorithms decide visibility. Outrage and simplification travel faster than everything else. His concept of democratic culture shifts the free speech inquiry.
Google, Facebook, and similar companies hold enormous amounts of personal data and shape information flows at a scale that dwarfs any publisher of the last century. Balkin argues that they should carry duties of care, loyalty, and confidentiality to users. The analogy is to doctors and lawyers, who cannot exploit the information clients give them. He takes an old legal category and stretches it to cover a new technological reality, rather than inventing a new regulatory paradigm from scratch. Critics have pressed him on whether fiduciary duty can do the work he asks of it when platforms have commercial interests that cut against the interests of their users.
He founded and directs the Information Society Project at Yale, a hub where law, technology, and policy meet. The project trains a generation of scholars who move among academia, government, and tech firms. He directs the Abrams Institute for Freedom of Expression and the Knight Law and Media Program. He founded and still edits the group blog Balkinization, a coordination site for liberal legal academics since the early 2000s. Arguments get tested on the blog before they enter law reviews or op-ed pages. During the Trump years and after, the blog became a real-time archive of elite legal anxiety.
His public service includes work on the Presidential Commission on the Supreme Court of the United States in 2021, convened during the Biden administration. The commission produced a cautious report that documented arguments on all sides of proposed reforms without endorsing any. He was elected to the American Academy of Arts and Sciences in 2005 and to the American Law Institute in 2020. He has visited at Harvard, New York University, Tel Aviv University, and the University of London. He writes for The New York Times, The Atlantic, The Washington Post, and Slate.

The Four Questions

Who does Balkin rely on for status, income, and protection?
Yale Law School pays his salary and confers his title. The Knight Professorship of Constitutional Law and the First Amendment is an endowed chair, which means his position depends on the continued goodwill of Yale’s administration and the donors whose money funds the chair. Knight Foundation money runs through several of the institutes he directs. The law school’s deans, past and present, sign off on his leaves, his center directorships, and the resources flowing to the Information Society Project and the Abrams Institute.
Beyond Yale, his standing rests on a small set of overlapping elite bodies. The American Academy of Arts and Sciences elected him in 2005. The American Law Institute elected him in 2020. Both confer status through peer selection, so membership depends on the continued approval of people already inside. The Biden White House put him on the Presidential Commission on the Supreme Court in 2021, which depended on Democratic administrations treating him as a serious voice. His op-ed access at The New York Times, The Atlantic, The Washington Post, and Slate depends on editors who share a rough sense of which legal academics count as respectable. Harvard University Press, Yale University Press, Oxford University Press, and the University of Chicago Press have published his books, which depends on peer reviewers drawn from the same academic strata.
Yale’s tenure system shields him from retaliation for unpopular views within a defined range. The broader liberal legal establishment protects him from the kind of sustained attack that has cost other academics their jobs, because his views sit comfortably inside that establishment’s center of gravity.
Who does he need to attract or retain as allies?
Liberal constitutional scholars at other elite law schools form his primary peer group. Laurence Tribe, Cass Sunstein, Mark Tushnet, Reva Siegel, Robert Post, Pamela Karlan, and Sanford Levinson sit in this circle. He needs them to cite his work, invite him to conferences, engage his concepts, and treat him as a peer rather than a rival.
Originalists and conservative legal scholars form a second group he has to keep talking to him. Framework originalism only functions if people on the other side take the move seriously rather than dismiss it as liberal constitutionalism in originalist dress. Steven Calabresi, Keith Whittington, Lawrence Solum, and Randy Barnett matter here. Their willingness to argue with him on the merits sustains the synthesis.
Younger scholars coming through the Yale pipeline form a third group. Information Society Project fellows, J.S.D. candidates, and former clerks carry his concepts forward. They staff think tanks, federal agencies, and law school faculties. Their loyalty is partly intellectual and partly biographical, since he helped launch them.
Tech policy professionals form a fourth group. Lawyers inside Google, Microsoft, Meta, and the Federal Trade Commission engage his information fiduciary argument because it offers a framework for their work. Their engagement keeps the idea alive in policy debates even when legislative action stalls.
Liberal journalists and editors form a fifth group. He supplies them with concepts that travel, constitutional rot being the most successful, and they supply him with a public larger than the law reviews could ever reach.
What beliefs and signals mark membership in his coalition?
Fluency in constitutional doctrine at the level where original meaning and doctrinal evolution get treated as compatible rather than opposed. Members do not sneer at originalism as intellectually empty, and they do not treat living constitutionalism as unprincipled drift. They hold both in productive tension.
Commitment to the legitimacy of the Supreme Court as an institution, even when disagreeing sharply with particular decisions. Members criticize Dobbs, Bruen, or Students for Fair Admissions without endorsing court-packing or structural rupture. The critique stops short of delegitimation.
Concern about democratic backsliding framed in the vocabulary of norms, institutions, and rot rather than revolution or collapse. Members speak of guardrails, democratic decay, and erosion. They do not speak of overthrow, regime, or founding.
Belief that platforms like Google and Meta can be regulated through extensions of existing legal categories rather than broken up or nationalized. Members work within administrative law, antitrust, and private-law frameworks rather than calling for wholesale reconstruction of the information economy.
A willingness to treat bad-faith actors as aberrations from a recoverable norm rather than as revealing the true character of the system. Members read Trump, for instance, as a symptom and a stress test rather than as the logical outcome of American constitutionalism.
Academic prose in a recognizable register. Careful, hedged, historically grounded, published in Yale Law Journal, Harvard Law Review, Columbia Law Review, and similar venues.
What would he give up, in status, income, or belonging, if he changed his public position?
If he moved sharply left, toward Levinson’s position that the Constitution is structurally indefensible and requires a new convention, he would keep his Yale chair but lose much of his influence as a broker. The value of framework originalism rests on his willingness to hold the center. A Balkin who declared the Constitution a failed document could not play that role. Conservatives would stop engaging him. Biden-era commissions would stop appointing him. Op-ed editors would still take his pieces but would treat him as a polemicist rather than a synthesizer. His concepts would travel less.
If he moved sharply right, toward the current Court’s aggressive originalism or toward skepticism of platform regulation, the losses would cut deeper. His peers at Yale, Harvard, and Columbia would read the move as betrayal. Invitations would dry up. The Information Society Project (ISP) would lose its character as a liberal-leaning hub. Knight Foundation support might hold or might not, depending on how the move was read. Balkinization would fracture, since the blog’s contributors share a rough ideological range. The American Academy and the American Law Institute would not revoke his memberships, but his standing inside them would thin.
More quietly, he would lose the network of former students and fellows whose careers he has shaped. That network is as much social as intellectual. It rests on shared assumptions about what counts as serious legal thought.
The income effects are real but limited. The deeper cost is the loss of what academics call recognition, the sense that one’s work is taken seriously by the people whose opinions matter. For a scholar who has spent three decades building a position as a trusted broker across a fractious field, that loss would be substantial.

‘Arguing is BS’

Balkin’s entire body of work performs persuasion. He cites evidence. He acknowledges counterarguments. He gives his opponents their best case before responding. Framework originalism reads as a good-faith attempt to meet Antonin Scalia halfway. Constitutional rot reads as a diagnosis rather than a partisan attack. Democracy and Dysfunction stages a disagreement with Sanford Levinson rather than an echo-chamber chant.
The sparring match works best when dressed as a seminar. The norm-enforcement operation works best when it reads as dispassionate analysis. Balkin’s care with sources, his hedged prose, and his refusal to write polemic all signal membership in a coalition that prizes the appearance of reason.
The coalition is liberal legal academia, concentrated at Yale, Harvard, Columbia, Chicago, Stanford, and NYU, and extending outward to the journalists, foundation officers, federal judges, clerks, and tech policy lawyers trained in or adjacent to those schools. The tribe shares a set of convictions. The Supreme Court is legitimate even when its decisions are wrong. The Constitution can be redeemed through interpretation. Platform companies can be tamed through extensions of existing legal categories. Democratic backsliding is a disease rather than a revelation.
Balkin’s signature concepts perform tribal work for this group. Constitutional rot gives members a vocabulary for criticizing the current Court without endorsing rupture. The word itself does covert coalition labor. It names the enemy’s behavior as decay rather than as alternative constitutional politics, which would concede that the enemy has a constitutional vision at all. Framework originalism lets members claim the prestige of originalism without its conservative conclusions. Information fiduciaries lets members criticize platforms without calling for the kind of breakup or nationalization that would upset the tribe’s allies in tech policy and the administrative state.
Consider Balkin’s treatment of the four drivers of rot: polarization, loss of trust in government, economic inequality, and policy disaster. The list is plausible. It is also convenient. It locates the causes of democratic decay in forces that liberal constitutional scholars have spent careers analyzing, and that conservative political movements have largely caused.
A less tribal account might include drivers that would embarrass the liberal legal establishment. The centralization of power in agencies and courts at the expense of Congress. The use of constitutional doctrine to remove contested moral questions from democratic politics. The failure of the bar and the academy to police their own ideological narrowing. These appear in Balkin’s work only in muted form, if at all.
Balkin does not cancel people. He has, by all accounts, treated interlocutors across the spectrum with courtesy. But the concepts he has put into circulation do coalition policing work that he need not perform personally. Constitutional rot, applied selectively, marks certain political moves as pathology while leaving comparable moves by allies unmarked. A senator refusing to hold hearings on a Democratic nominee is rot. An expansion of executive power under a Democratic administration is governance.
The information fiduciary argument performs a quieter version of the same function. It identifies the enemies of democratic culture as platform companies behaving badly, and it proposes a remedy that leaves the basic architecture of elite information production intact. Universities, legacy newspapers, federal agencies, and law schools are not pressed to take on fiduciary duties toward the publics they influence.
Does Balkin ask questions of his ideological opponents? Sometimes, though his questions tend to presuppose the frame he wants them to accept. Does he interpret opposing views in their best light? Yes, within a range that stops at the boundary of serious conservative legal thought. Does he acknowledge valid points from the other side? He concedes the textualist impulse, the legitimacy of original meaning at high levels of abstraction, and the real dysfunction of liberal institutions. Does he ever concede that conservative constitutional theory might be right about something important that liberal theory gets wrong? This is harder to find.
For Balkin, the cover story is essential. His institutional position depends on being read as a scholar rather than as a partisan. Yale, the American Academy, the Biden commission, the op-ed pages, the Knight Foundation, the university presses, all require the persuasion frame to remain intact. A Balkin who described his work as coalition maintenance would lose the position that makes coalition maintenance possible.
Some of Balkin’s work, particularly the technical doctrinal pieces on First Amendment scope or the narrower essays on specific cases, looks closer to this concrete mode than to the tribal mode. His information fiduciary proposal has analytic content that his critics have engaged on the merits. His historical work in Memory and Authority performs scholarship as well as propaganda.
The technical doctrinal pieces do persuasion work. The signature concepts, the ones that travel in op-ed pages and commission reports, do tribal work. The most influential parts of his career are the tribal parts. The most rigorous parts are the ones that nobody outside the legal academy reads.
If Balkin changed his public position on a central tribal commitment, would he keep his coalition? If he declared that the Roberts Court’s originalism was a legitimate rival constitutional vision rather than a pathology, that platform regulation through fiduciary duties had failed and required rethinking from the ground up, that liberal legal institutions bore substantial responsibility for the rot he has diagnosed, the answer is no. He would keep his Yale chair. He would lose his position as the trusted broker of elite liberal constitutional thought. The coalition would mark him as defected.

The Tacit

Balkin’s framework originalism treats the Constitution as a set of broad principles that later generations elaborate through construction. The elaboration gets done by courts, social movements, and political coalitions over time. The theory sounds like an account of doctrinal development.
The real work of constitutional interpretation, in Turner’s sense, is tacit. It happens in judges’ chambers, in law firm associate training, in clerkships, in the back-and-forth between justices and their clerks as draft opinions circulate. It happens in the moot courts at elite law schools where future litigators learn which arguments land and which do not. It happens in the faculty workshops where draft articles get refined before submission. None of this is written down in Balkin’s theory. None of it appears in casebook footnotes. It forms the practical substrate on which framework originalism depends for its plausibility.
A Balkin who made the tacit substrate explicit would have to say something that the theory cannot accommodate. Framework originalism works for judges and lawyers trained inside the Yale-Harvard-Columbia apprenticeship system because they share the tacit knowledge that converts the broad framework into concrete outcomes. It does not work the same way for lawyers trained at regional law schools, for populist litigators, or for the conservative legal movement that built its own apprenticeship system to train different tacit judgment.
Constitutional Redemption argues that commitment to the Constitution under conditions of injustice requires a kind of faith in the possibility of redemption through interpretation. Constitutional faith is not a commitment that practitioners hold alongside their technical work. It is the tacit background that makes the technical work possible. Lawyers who entered the profession during the post-Warren Court era absorbed a sense that the Constitution could be worked. That sense was not taught. It was inhaled. It came with the atmosphere of the seminars, the clerkships, the summer associate dinners, the conversations with senior colleagues who had lived through earlier struggles and come out still believing.
Younger lawyers entering the profession now breathe a different atmosphere. The tacit sense that the Constitution can be redeemed through interpretation is thinner among them. They have watched the Court move in directions that their teachers coded as impossible. They have seen constitutional arguments that their training said were off the wall move to the center of doctrine. The tacit background that sustained Balkin’s faith is not the tacit background they inherited. Balkin can write books about constitutional redemption. He cannot transmit the tacit confidence that made the books feel plausible when he wrote them.
The synthesis works only if participants across the ideological spectrum agree to use the shared vocabulary in good faith. If originalists pocket the vocabulary and use it to reach their preferred outcomes while liberals use it to reach theirs, the shared frame collapses into a thin veneer over ordinary coalition combat.
Balkin’s bet was that enough tacit cooperation existed in the American legal community to sustain the shared frame. The bet made sense when he made it. The bar was smaller. Elite law schools trained judges and advocates inside overlapping tacit worlds. The Supreme Court bar was a community whose members argued hard against each other on Monday and had lunch together on Wednesday. Tacit norms of argument and interpretation held the community together across doctrinal disagreement.
The conservative legal movement built a parallel tacit community. Federalist Society chapters, the Edwin Meese circles, the Claremont network, the emerging Hillsdale pipeline, produced lawyers whose tacit formation differed from the one Balkin assumed. These lawyers do not experience framework originalism as a shared frame. They experience it as an opposing coalition’s packaging of its preferences. They have absorbed through their own apprenticeships a different set of tacit convictions about what constitutional interpretation is and how it should be done.
The Information Society Project is not primarily an argument factory. It is an apprenticeship site. Fellows come for a year or two. They sit in rooms with senior scholars. They attend workshops. They meet visiting officials from agencies and platforms. They absorb, through long exposure, a set of practical judgments about how law, technology, and policy interact.
What the fellows carry away is not reducible to the articles they wrote or the conferences they attended. They carry tacit knowledge. They know how to think about a new regulatory proposal. They know which scholars to trust on which questions. They know the style of argument that will land with federal judges of a certain vintage. They know, at a level below articulation, what counts as a serious move in the field Balkin helped build.
Tacit transmission shapes the next generation of practitioners. Argument gets read, cited, and forgotten. The fellows of ISP carry Balkin’s tacit formation into agencies, firms, universities, and courts. Twenty years from now the federal judges who grew up in this network will read their cases with judgments formed in Balkin’s seminar room, even if none of them could say where their judgments came from.
Written exchange alone cannot fully transmit tacit knowledge. Books and articles carry propositions. They do not carry the embodied judgment that makes the propositions work in practice. Readers who come to a text without the tacit formation that the text presupposes will read the propositions as words without the weight they have for readers inside the tradition.
Balkinization runs into this limit. The blog is written by and for lawyers inside a specific tacit formation. Readers who share that formation experience the posts as substantive intellectual exchange. Readers outside it experience the posts as impenetrable.

The Presidential Commission and the Failure of Explicit Procedure

The commission was designed as a deliberative body. Bipartisan membership. A public charge. A schedule of hearings. A requirement to examine reform proposals on the merits. On paper the procedure should have produced a reasoned report that all commissioners could accept.
The procedure presupposed something the participants did not share. Shared tacit judgment about what counts as reasonable deliberation. Conservative commissioners arrived with tacit knowledge that the commission was a liberal capture operation, because they had absorbed that reading through their own professional formation. Liberal commissioners arrived with tacit knowledge that the commission was an honest reform inquiry, because they had absorbed that reading through theirs. No explicit procedure could make these tacit readings converge. The final report read as a document produced by two communities occupying the same room without sharing the room’s meaning.
Balkin could not save the commission because the commission’s failure was not at the level where his skills operate. His skills are in argument, synthesis, and careful prose. The failure was in the tacit conditions that would have made the argument and synthesis land. Those conditions were outside his reach.
Balkin’s most important contributions to American constitutionalism have been his training of students, his cultivation of fellows, his building of institutions, his long conversations with judges and policy makers. These are tacit transmissions. His written work gets the credit. The tacit work does the heavy lifting.
This is the normal condition of elite academic authority. The professor who appears to be a thinker is more accurately a transmitter of tacit judgment. The books are the public face of a practice that is not primarily about books. Remove the practice and the books become strings of propositions. Keep the practice and the books acquire weight they would not have on their own.
This elevates Balkin’s real contribution above his visible one. It also limits what he can preserve through writing alone. When the tacit community that carries his formation weakens, his books will lose the weight they had when the community was stronger. His concepts will remain in print. Their force will fade.
Memory and Authority examines how lawyers use history to ground constitutional argument. It is an inquiry into the tacit standards by which historical appeals succeed or fail. The standards are not reducible to the propositions the book can state.
Balkin can pass on his casebook chapters, which will shape classroom rituals for another generation. He can pass on his fellows, who carry his tacit formation into the institutions they enter. He can pass on his books, which will be cited and reread. He can pass on his seminar students, who will teach their own students something of what they absorbed.
He cannot pass on the post-Watergate atmosphere in which he trained. He cannot pass on the shared tacit world of the elite bar as it existed in the 1980s and 1990s. He cannot pass on the judicial selection environment of his early career. These have gone. The generation that comes up after him will form its own tacit world, shaped by different pressures, different rituals, different institutional conditions. The best Balkin can do is send them forward with some of what he learned, knowing that much of what he learned will not survive the transit.

Watergate as Democratic Ritual & Cultural Trauma

Constitutional rot is a trauma claim in Alexander’s precise sense. It names a pain, the decay of democratic institutions. It names a victim, the American republic and the constitutional order. It asserts a relation between victim and audience by suggesting that all citizens share in the loss. It attributes responsibility to specific actors: senators who break norms, presidents who abuse power, donors who capture agencies, movements that reject the rules of the game. Balkin performs the claim-making work of a carrier group with exceptional care. He publishes books. He runs a blog. He trains fellows. He writes op-eds. He advises commissions.
The claim has not taken. The American public does not experience the current constitutional moment as trauma in the way the Holocaust, slavery, or Watergate have entered collective memory. Elite legal academia experiences it that way. Balkin’s readers experience it that way. The broader population does not. The claim requires uptake that a polarized society cannot provide. Half the country reads the same events through a different frame. The other side has its own carrier groups, its own claim, its own narrative of rot. Both coalitions run claim-making operations and neither can impose its master narrative on the other.
Alexander shows that the Watergate hearings worked because specific structural conditions held. Consensus had been recovering from the 1960s polarization. The center was perceived as threatened. Institutional actors could exercise control without being read as partisan. Countercenters existed that had standing to challenge Nixon. And the televised hearings produced a liminal space in which senators from across the political spectrum could speak in the voice of the civic religion rather than the voice of their parties. The result was a purification ritual that consolidated the sacred/profane boundary in American constitutionalism for a generation.
Balkin’s constitutional faith was formed inside the afterglow of this ritual. He went to Harvard Law School in the late 1970s, in the years of post-Watergate morality that Alexander describes. The special prosecutor statute, the ethics reforms, the congressional investigations of the CIA and FBI, the sense that office obligations transcend personal loyalty, all of this was the cultural inheritance that shaped the legal academy of his formation. His framework originalism, his democratic culture, his constitutional redemption, all draw energy from the assumption that American civic ritual can work when pressed.
Alexander’s essay ends with a warning that Balkin’s project has not absorbed. Modern rituals are contingent. The five conditions that made Watergate purification possible are not standing requirements of American politics. They are historical achievements that could fail to reassemble. The Iran-Contra affair produced a weaker version of the same ritual. The Clinton impeachment produced a ritual that ran the other way, with the carrier groups of the attack failing to generalize their claim. The Trump impeachments produced attempted rituals that generated no consensus whatsoever, that threatened no center the other side recognized, and that mobilized no countercenters capable of forcing purification.
Balkin’s diagnostic vocabulary presumes that naming the rot can help reverse it. Trauma construction and ritual purification require shared cultural ground that Balkin’s audience no longer occupies with the rest of the country. The scholar who describes the rot cannot by himself create the carrier group, the consensus, the threat-to-center perception, and the ritual forum that would make the description generative. He can write the lines for a play no theater will stage.
Doctors and lawyers hold duties because their professions are embedded in civic rituals, licensure, discipline, oath-taking, that mark their offices as more than contracts. Platform executives operate inside a different sacred order, one where disruption, growth, and shareholder return hold the sacred weight. Extending fiduciary categories across that boundary requires a cultural translation that Balkin’s argument does not perform.
Constitutional Redemption argues that constitutional commitment rests on the belief that an unjust system can be redeemed through interpretation and struggle. Redemption is a religious category. It presumes a community of believers, a shared text, a shared practice of reading that text, and rituals that renew the community’s commitment to the reading. The American legal academy once had something like that community, centered on constitutional law casebooks, clerkships, the Harvard-Yale-Columbia axis, and the civic rituals that Watergate consolidated. The community has fractured. Federalist Society conservatives read a different canon, perform different rituals, and hold different saints. Balkin’s redemption is now the redemption of one sect, not of the republic.
Alexander’s Watergate essay describes the symbolic classification system that the hearings consolidated. Good on one side: the Constitution, rule of law, impersonal office, critical rationality, inclusion. Evil on the other: personalism, loyalty over office, particularism, conformity, factional strife. Balkin’s work continues to operate inside that classification. The current Court, on his account, sits on the evil side. The current political movements that support it sit on the evil side. The norms they violate sit on the good side.
But Alexander’s own essay admits that even at Watergate’s height, twenty percent of Americans rejected the classification. They read the ritual as political vengeance rather than civic renewal. They held to a different sacred center, one grounded in personal loyalty, primordial solidarity, and suspicion of cosmopolitan elites. That twenty percent now runs to perhaps forty-five, and it has its own legal academy, its own judges, its own press, its own carrier groups, and its own accounts of rot. The Watergate ritual purified a civic religion that a minority always rejected. The present moment cannot produce such a purification because the minority has become large enough to block the consensus Alexander’s model requires.
What Balkin gives his coalition is what Alexander calls the effervescence of a past ritual. Post-Watergate morality persists among those whose intellectual formation it shaped. They still feel the sacred weight of impersonal office, critical rationality, and civic universalism. They still feel the polluting force of personalism and loyalty to men over institutions. Balkin articulates that feeling with unusual sophistication. The articulation sustains the coalition that shares it. It does not cross the boundary into the other America, because the effervescence does not travel there. The other coalition is sustained by a different ritual memory, grounded in different events and different saints.
The Watergate essay stresses that the ritual’s power depended on carrier groups outside the administration, including journalists, senators, federal prosecutors, and the televised hearings themselves, that could occupy a liminal space above partisan politics. Balkin has tried to build some of this infrastructure. The Information Society Project trains people across domains. Balkinization coordinates elite legal commentary. The Presidential Commission on the Supreme Court was a conscious effort to create a quasi-liminal body that could speak in the voice of civic universalism. None of these efforts has produced the cross-partisan uptake that Watergate achieved. Alexander’s essay suggests why. The liminal space depends on a shared sacred order that the participants can enter together. That order has fractured. Balkin’s commission was read by the other coalition as exactly the partisan exercise the Senate Watergate Committee almost became and did not. The framing never stuck.
Balkin writes as if the civic religion of his formation remains the operative religion of the republic. His work records the memory of a ritual order that still binds his coalition and no longer binds the nation. He tries to keep a particular sacred order alive against the forces eroding it.

Randall Collins’s Interaction Ritual Chains

Balkin’s emotional energy has its source in a specific interaction ritual that American elite legal education has perfected. The small seminar at Yale Law School. A dozen students gathered around a long table. A professor who has read everything. Sustained mutual focus on a shared object, usually a difficult case or a theoretical text. Rhythmic entrainment through question and answer. A shared mood of intellectual seriousness. The ritual charges everyone in the room with the feeling that what happens there matters, that the participants are the kind of people for whom such conversations are the substance of life.
Balkin has run this ritual for more than three decades. He has led it with students who went on to clerk at the Supreme Court, to teach at peer institutions, to run agencies, to shape opinion at The New York Times and The Atlantic. Each successful seminar generates emotional energy that participants carry out into their careers. They remember the room. They remember the professor. They remember the feeling of being taken seriously. Years later, when they cite his concepts, they are drawing on that charge.
Charged rituals have to happen somewhere. They require physical co-presence, focused attention, and the institutional frame that makes the focus plausible. The Information Society Project at Yale exists as exactly this kind of ritual space. Fellows gather in a room. Outside speakers visit. Conversations happen over meals. Conferences bring far-flung participants into face-to-face contact for the span of a weekend.
The formal outputs of ISP are books, articles, and policy papers. These are secondary. The real output is the chain of charged encounters among people who might otherwise never meet. A tech policy lawyer from the FTC, a graduate student from a computer science program, a law professor visiting from Israel, and a journalist from a digital publication sit in the same room and focus together on a shared problem. The ritual produces emotional energy that each participant carries back into his home institution. Subsequent interactions between these people, on email, on panels, at conferences, draw on the charge of the original face-to-face encounter.
Balkin does not run every ritual personally. He founded the space. He set the tone. He trained the early fellows who now convene subsequent fellows. His emotional energy gets transmitted down the chain. People who have never sat with him directly encounter his concepts inside rituals organized by people who did sit with him. Collins calls this the extension of charisma through ritual succession.
Collins is skeptical of long-distance communication as a substitute for face-to-face ritual. He holds that written exchange alone cannot generate the full emotional energy of co-presence. Blogs and comment threads in his framework tend to run on the residual charge of prior rituals rather than generate new charge.
Balkinization runs on the emotional energy its contributors brought with them from Yale seminars, Harvard clerkships, conference panels, and law school workshops. Readers who have been inside those rituals read the blog and feel the charge. Readers who have not been inside those rituals cannot fully receive the charge. They get the arguments. They do not get the emotional energy that makes the arguments feel like they matter.
Balkinization is read intensely by a small community and barely registered outside it. Written exchange deepens bonds that face-to-face rituals already established. It does not manufacture bonds from nothing. The blog works as a charge-maintenance operation for the existing ISP and Yale networks. It does not extend beyond them.
Balkin has contributed to major constitutional law casebooks that shape how the subject gets taught across American law schools. The books are not primarily vehicles of argument. They are ritual scripts. They tell the professor what to read, in what order, and with what emphasis. They structure the mutual attention of the classroom. They provide the shared object around which students can entrain.
Every first-year constitutional law class in a hundred law schools runs a version of the same ritual. The cases get read. The questions get asked. The emotional energy of the classroom gets attached to the cases, the doctrines, and the concepts that organize them. A casebook that includes Balkin’s framing of a question, or his proposed synthesis, gets the ritual charge of the entire class attached to his concepts. Students walk away from the class feeling that Balkin’s framing captured something real, not because they have evaluated the argument but because the framing was present in the ritual that charged their constitutional sensibility.
Casebook authorship matters more than law review citations. Citations are long-distance, low-energy. Casebook inclusion is high-energy, distributed across hundreds of classrooms and thousands of students per year. Balkin’s quiet accumulation of casebook real estate is one of the most important things he has done, and the Collins framework is the best account of why.
Some attempted rituals fail. The participants do not entrain. The shared focus does not hold. No emotional energy is generated. The formal event ends, and no one carries anything away from it.
The Presidential Commission on the Supreme Court was exactly such a failed ritual. The formal apparatus was in place. A bipartisan body. A charge to examine reform proposals. A schedule of meetings. Balkin served on the commission alongside conservative legal scholars and liberal ones. On paper it should have generated the kind of cross-coalition charge that Watergate’s senate hearings produced in the 1970s. It did not. The participants did not share the pre-ritual emotional state required for successful entrainment. Conservative commissioners arrived expecting a partisan operation. Liberal commissioners arrived expecting substantive reform discussion. Neither group could focus together on a shared object because the object itself was contested. No rhythmic entrainment developed. The final report read as committee prose rather than the voice of a body that had found its own mood. No emotional energy emerged. Nobody carried anything away.
Balkin could not save the ritual because the pre-conditions for successful ritual were absent. The coalition split that the commission was supposed to bridge was already too wide for the ritual form to close it.
The Federalist Society built its own ritual chain over forty years and now dominates the judicial appointments that Balkin’s coalition once took for granted. The Federalist Society chapter meeting at each law school. The national student convention. The lawyers’ convention in Washington. The clerkship networks. The judicial nominations that flow through Federalist Society membership. The result is a parallel ritual infrastructure running alongside Balkin’s Yale-centered one.
Ritual chains compete not by persuading but by generating more emotional energy than the competition. The Federalist Society has charged its symbols. Young conservative lawyers feel something when they attend the convention. They carry the charge back to their firms and chambers. They make decisions with that charge informing them. Balkin’s writing cannot unmake that charge because writing alone does not carry the ritual energy required.
The fight Balkin is losing is not an argument. It is a ritual competition. The Federalist Society did not out-argue liberal constitutionalism. It out-ritualized it. The response that would match the challenge is not better theory. It is better ritual infrastructure on the liberal side. Balkin has built some of it through ISP and through his casebooks. The Federalist Society built more of it and did so with more singular focus on the task.
The post-Watergate civic religion that charged a generation of liberal legal thinkers has lost its ritual infrastructure. The hearings that once charged the symbols do not repeat with the same force. The presidential commissions fall flat. The constitutional moments that once produced mass ritual uptake now produce partisan counter-rituals.
Balkin has been writing into a period of declining ritual energy for his coalition. His concepts accumulate citation but not charge. Younger liberal legal scholars read framework originalism and constitutional rot. They do not feel them the way students felt Warren Court opinions during the rights revolution. Concepts produced inside a coalition with declining ritual energy will fail to land with the force their authors expect, no matter how well the concepts are constructed.
Balkin’s personal charisma remains high because he runs his seminars, his fellowships, and his editorial functions skillfully. The charge attaches to him when people are in the room. What has declined is the ability of his network to extend that charge across the broader profession and into the political order the way earlier liberal legal networks did.
Memory and Authority has an elegiac quality. The author is writing about how constitutional memory gets made, at a moment when the ritual infrastructure that once made constitutional memory is weaker than it was when he entered the profession. The argument holds. The emotional energy required for the argument to produce political effects has thinned.

Charisma and Social Paradoxes

Balkin’s signature paradox is the man who appears not to take sides while establishing the ground on which sides fight. Framework originalism presents itself as a shared vocabulary available to originalists and living constitutionalists alike. Anyone can use it. It belongs to no coalition. It simply describes what constitutional interpretation must involve once you accept both the authority of the text and the reality of doctrinal development.
The presentation conceals an enormous status claim. The person who defines the frame within which others argue stands above anyone arguing inside the frame. Framework originalism lets Balkin arbitrate between Scalia and Brennan without appearing to pick between them. He appears to occupy the view from nowhere while in fact occupying the view from Yale. Liberal constitutional outcomes slip in through the construction zone while the originalist vocabulary reassures conservatives that the text still matters.
His readers at Yale, Harvard, and Columbia do not register the move as coalition work. They register it as honest theoretical labor that happens to vindicate their priors. The symbiotic deception holds because neither party has incentive to examine it. Balkin gets the authority of the synthesizer. His readers get the satisfaction of intellectual respectability without surrendering their outcomes. Both sides win by not looking too closely.

The Reluctant Diagnostician

Constitutional rot presents itself as an unwelcome observation forced on him by the evidence. He would prefer not to have to name the decay. He takes no pleasure in the diagnosis. He offers it because honesty requires it. The tone across The Cycles of Constitutional Time, and across his blog posts on rot, is one of sober reluctance rather than partisan delight.
The reluctance does enormous status work. A scholar who appears pleased to name the opposition’s pathology loses credibility. A scholar who appears grieved to name it gains credibility. Balkin’s mournful tone positions him above the partisan fray while delivering conclusions that serve his coalition with precision. The Republicans broke the norms. The Court has degraded. The movements that support it have damaged the republic. The conclusions would read as partisan if stated with any visible satisfaction. Delivered with a sigh, they read as the unwelcome verdict of a man who loves his country.
The paradox requires that the reluctance be genuine, and in Balkin’s case it almost certainly is. He experiences the decay as real loss. He wishes the situation were different. That sincerity is what makes the paradox work. Performed grief would be detected. Real grief that happens to flatter the author’s coalition is not. The most effective coalition intellectuals will be the ones whose emotional responses have been shaped by their coalition position deeply enough that they feel their positions rather than perform them.

The Scholar Who Is Not an Activist

Balkin has declined to cast himself as a public intellectual in the polemic register. He does not appear on television shouting. He does not write hot-take op-eds with predictable takes. He publishes books with Harvard University Press, Yale University Press, and Oxford University Press. He runs a blog that reads like a seminar rather than a cable show. He serves on commissions. He writes for The Atlantic in a measured voice.
He appears to have renounced the kinds of influence that political activists pursue. He has chosen the smaller audience of legal academics, the longer time horizon of the monograph, the slower pace of the peer-reviewed article. This renunciation is a higher-order status move. The scholar who visibly refuses short-term political influence gains the kind of long-term authority that short-term operators cannot touch. His concepts travel further than any op-ed because they travel with the prestige of the academy. Constitutional rot appears in Atlantic essays, Supreme Court dissents, Biden commission reports, and law review articles because Balkin built it in the slow, careful register that makes such travel possible.
The activist who openly sought that reach would not achieve it. The scholar who appears not to seek it does. The concealment is necessary. Balkin probably experiences his career as scholarly work that happened to become influential rather than as an influence operation dressed in scholarly clothing.

The Faith-Keeper Who Critiques

Constitutional Redemption holds the Constitution to be deeply flawed, implicated in slavery, marked by exclusions, shot through with compromises that still wound the republic. He also holds it to be worth redeeming through interpretation and struggle. The combination lets him collect the prestige of the critic and the prestige of the loyalist at once.
The radical who denounces the system wholesale loses access to the institutions that confer authority. The apologist who defends it without criticism loses access to the progressive audience that wants to hear its concerns acknowledged. Balkin sits on a narrow ridge between these two positions. He acknowledges the injustice thoroughly enough to satisfy the critics and commits to redemption thoroughly enough to satisfy the institutionalists. Both camps can claim him. Neither can discard him. The balance requires sincerity in both directions.
His collaboration with Sanford Levinson in Democracy and Dysfunction sharpens the paradox through contrast. Levinson plays the role of the radical who pushes toward structural rupture. Balkin plays the faith-keeper who pulls back. The two-man show lets each man occupy his position cleanly while letting readers locate themselves in between. Readers who tilt toward structural critique have Levinson. Readers who tilt toward fidelity have Balkin.

The Institution-Builder Who Claims No Empire

The Information Society Project, the Abrams Institute for Freedom of Expression, the Knight Law and Media Program, and Balkinization together constitute a small empire. Each institution extends Balkin’s reach. Each trains people who carry his concepts forward. Each provides platforms where his ideas get tested before they enter wider circulation. The aggregate influence is considerable.
Balkin does not present any of this as empire-building. He describes the centers as research hubs. He describes the blog as a conversation among colleagues. He describes his fellows as independent scholars. The framing is that these institutions exist because the work matters, not because the founder wanted institutional power. The person who openly describes himself as building influence loses the influence he is building. The person who describes his institutions as neutral platforms for scholarship gains the influence that open ambition forfeits.
Whether Balkin consciously understands the institutions as coalition infrastructure is not the question. The concealment is most effective when the founder experiences his work as service to scholarship and when the fellows experience their positions as intellectual opportunities. Everyone benefits from the arrangement. Nobody has incentive to examine it as an operation. The institutions function as coalition carriers because no one is calling them that.

Coalition-Relativity and the Limits of Balkin’s Charisma

Charisma does not travel across coalitions. The same performance that reads as statesmanlike to one audience reads as partisan to another.
Within liberal legal academia Balkin has charisma. His reluctant diagnoses land as the wisdom of a man who has seen the system honestly. His framework originalism reads as the bridge-building move of a scholar too serious for factional combat. His institution-building reads as service to the profession. The paradoxes work because the audience shares his sacred commitments and reads his performance through them.
Within the conservative legal movement he does not have charisma. The same performances read differently there. Framework originalism reads as liberal constitutionalism dressed in borrowed vocabulary. Constitutional rot reads as a partisan weapon given a scholarly veneer. The Information Society Project reads as a liberal infrastructure operation. The Biden commission reads as exactly the kind of capture the Federalist Society has organized against for forty years. The paradoxes that work at Yale do not work at George Mason. Balkin’s charisma has a coalition boundary, and that boundary is the line at which the concealment breaks.
Balkin has tried to build infrastructure that operates across the partisan divide. The commission was an attempt to convene conservative and liberal legal minds around shared procedural questions. The attempt failed, not because Balkin executed it badly, but because his charisma does not extend to the audience he needed to reach. The conservative commissioners read him as a partisan who had built a career performing neutrality. They were not wrong.

The Symbiotic Deception at the Heart of Balkin’s Authority

Carisma depends on mutual non-awareness. Balkin does not experience his career as a sequence of status moves. His readers do not experience their engagement with him as coalition service. Both parties experience the relationship as honest scholarly exchange.
The symbiotic deception holds because both parties need it to hold. Balkin needs to experience himself as a scholar to do his work at the quality his position requires. His readers need to experience him as a scholar to extract the institutional benefits his work provides. If either party looked too closely and saw the coalition operation for what it is, the arrangement would collapse. Balkin would lose the motivation that sustains the work. His readers would lose the authority that sustains their citations. The deception protects something both sides want.
Balkin is the synthesizer, the reluctant diagnostician, the scholar who is not an activist, the faith-keeper who critiques, the institution-builder who claims no empire, all held together in one career across three decades. He has mastered a specific set of social paradoxes that American legal liberalism requires its leading thinker to embody. That mastery is why his coalition calls him brilliant.

‘A Big Misunderstanding’

Balkin’s career depends on the misunderstanding myth.
Framework originalism presumes that the gap between originalists and living constitutionalists is an interpretive misunderstanding that better theory can close. If Antonin Scalia and William Brennan had shared the right vocabulary, their dispute could have been managed at a higher level of abstraction. Balkin offers the shared vocabulary. Original meaning and constitutional construction coexist. The fight shifts from whether interpretation evolves to who does the evolving.
That the premise is wrong has not damaged Balkin’s career. The dispute between originalists and their opponents is not a misunderstanding. Both sides understand what is at stake. Conservative originalists want constitutional doctrine to reach certain results on abortion, affirmative action, gun rights, and administrative power. Liberal constitutionalists want it to reach the opposite results. Each side dresses its preferences in methodological clothing because doing so sounds more respectable than saying we want different outcomes. When Balkin offers a synthesis, he offers a costume change. The underlying coalition conflict continues. Framework originalism has not persuaded serious originalists to accept liberal constitutional outcomes. Nor has it persuaded serious liberals to accept conservative ones. It has given both sides a richer vocabulary for fighting the same fight.
Constitutional rot runs the same play at larger scale. The concept names democratic decay as a failure of understanding. Political actors have forgotten the unwritten norms that sustain the republic. Elites have grown distracted from the common good. Citizens have lost sight of how institutions work. If everyone understood better, the rot could be arrested.
The actors are not confused. Senators who refuse to hold hearings on a nominee understand exactly what they are doing. Presidents who push executive power to its limits understand their incentives. Interest groups that capture agencies understand their returns. The norms eroded because different coalitions came to see the returns of breaking them as higher than the costs. That is not misunderstanding. That is a changed payoff structure. Balkin’s vocabulary of rot, decay, and loss locates the problem in cognition rather than in interests, and that location is convenient for the coalition that wants the norms restored without conceding that its opponents have rational grounds for breaking them.
The four drivers of Balkin’s constitutional rot—polarization, loss of trust, economic inequality, and policy disasters—are not bugs in the system. They are the system operating on the lines of competitive human nature. Balkin sees polarization as a breakdown of norms when partisans are not “confused” or “tribal”; they are locked in zero-sum competition over the coercive power of the state. Fighting dirty and demonizing the opposition are effective tools to mobilize one’s side and demoralize the other. Balkin mourns the loss of trust in experts. The public has no incentive to believe experts who rule against the public interest and in their own interest. Economic inequality is the result of successful resource capture. The wealthy capture the government because it is rational to do so to ensure their own status and the success of their offspring.
When leaders and citizens “fail” to follow norms, it is not because they forgot them, but because ignoring them offers a higher payoff.
Balkin argues that constitutional rot occurs when the “internal logic” of the system fails. The internal logic of the human mind—which favors status-seeking and coalitional dominance—is functioning perfectly. The “rot” is simply what happens when our evolved drives for dominance outweigh the artificial constraints of a written constitution warped by hostile coalitions.
Balkin often misdiagnose the problem as a “misunderstanding” because it makes his job—explaining and educating—seem vital, and he becomes the man who saves the republic through “renewal.”
As the “problem” is that humans are rational animals doing exactly what natural selection designed them to do: competing for control, there is no “misunderstanding,” and there is no “fix” that an intellectual can provide through better theories or policy implications.
Platforms, on Balkin’s account, have misunderstood their relationship with users. If they grasped the fiduciary analogy, they would recognize duties of care, loyalty, and confidentiality. The argument presumes that the problem is conceptual. Once the right category enters the conversation, behavior changes.
What did Google and Meta misunderstand? Their executives know they monetize attention. They know their recommendation systems maximize engagement. They know their data practices serve shareholder interests. They have not failed to think of the fiduciary analogy. They have examined it and rejected it, because adopting it would cost them money. The failure is not cognitive. Balkin’s proposal treats a business model conflict as a legal category error, which keeps the scholar in the role of the person who can resolve the conflict through clearer thinking.
Constitutional Redemption argues that commitment to a flawed Constitution rests on the belief that it can be redeemed through interpretation and struggle. The faith is noble. It is also structurally identical to the misunderstanding myth. Faith in redemption presumes that the conflicts the Constitution generates can be worked out through interpretation, that is, through better thinking. The alternative presumption, that the conflicts are about who gets to rule and will continue regardless of how cleverly the text is read, would strip constitutional interpretation of its redemptive function.
Balkin’s critique of conservative originalism holds that the Court now practices an originalism of results, picking through history to reach predetermined conclusions. The critique is largely correct. Conservatives return the favor. They hold that liberal constitutionalism has always been results-oriented, dressing policy preferences in doctrinal robes. That critique is also largely correct. Each side accuses the other of misunderstanding the proper role of interpretation. Neither side accepts that the other understands perfectly well and simply has different interests and commitments. The symmetric accusations of misunderstanding allow both sides to preserve their self-image as principled interpreters rather than coalition combatants.
Believers in the misunderstanding myth are not cynical. They have convinced themselves because the belief serves their coalition too. Thinking your opponents are confused rather than motivated lets you maintain a self-image as a disinterested truth-seeker rather than a combatant. The myth flatters the person who holds it.
Scholars who broker between rival academic camps must believe in the possibility of brokerage. A Balkin who accepted that his conservative interlocutors understand the game perfectly and have simply chosen a different side could not play his role as synthesizer. The coalition he serves requires him to hold the belief that serves the coalition.
Balkin’s entire output is patient, careful, hedged, historically grounded explanation. He writes books. He edits a blog. He trains fellows. He publishes in law reviews. He gives lectures. All of this is aimed at correcting misunderstanding. The Federalist Society, which understood the coalition game from the start, spent forty years building a pipeline of judges, clerks, litigators, and donors. That pipeline has produced the Court now issuing the decisions Balkin diagnoses as rot. Patient explanation did not stop them. It was never going to, because the opposition was not confused. Balkin’s strategy was aimed at the wrong target, and the misunderstanding myth is exactly what prevented him from seeing that.
The cost to Balkin of admitting this is too high. His position, his influence, his institutional network, his readership, his sense of his own career, all depend on the belief that constitutional conflict is a problem of interpretation rather than a problem of power. If he conceded that the conservative legal movement has been running a coalition operation while he has been writing theory, the concession would destroy the frame that has made his work possible. The reflexive dimension is complete. The coalition gives him a position. The position requires the myth. The myth sustains the coalition. He is not trapped in bad faith. He is the product of a selection process that selected for exactly this combination of sincerity and blindness.
Balkin’s own framework includes the concept of ideological drift, the idea that legal doctrines change political valence over time as different coalitions capture them. Doctrines do not drift because people misunderstand them. They drift because coalitions with different interests pick them up and use them. If Balkin pressed ideological drift to its conclusion, he would see that legal concepts are tools that coalitions wield, the coalitions understand this, and the scholarly task of reconciling the conflicting uses is a coalition project dressed as a methodological one. Balkin sees the drift. He stops short of applying the analysis to himself and his favorite ideas.

Alliance Theory

Balkin presents framework originalism as a principled synthesis of two competing interpretive methodologies. The Constitution’s original meaning sets a framework. Construction fills it in. The theory appears to transcend the partisan divide by offering a vocabulary both sides can use.
The theory lets the American liberal legal coalition keep its preferred constitutional outcomes while using the vocabulary of the rival coalition. Living constitutionalism had become the target of forty years of conservative attack. Framework originalism gives liberals cover. They can speak of original meaning while delivering the doctrinal results that living constitutionalism produced. The theory is propaganda. It mobilizes support for the coalition’s preferred outcomes by framing those outcomes as the neutral product of a shared method.
Where originalism would cut against liberal outcomes, Balkin’s framework originalism routes around the cut through the elastic category of construction. Where originalism would support liberal outcomes, framework originalism embraces the text. The method bends to serve the coalition.

Constitutional Rot as Victim Bias

Consider what does not get coded as rot. The expansion of agency power under Democratic administrations. The use of constitutional doctrine to remove contested moral questions from democratic politics. The professional capture of Senate confirmation hearings by interest groups on both sides. The ideological narrowing of the academy and the bar. The normalization of courts as policy-making bodies. These items are conservative coalition grievances. They do not appear in Balkin’s rot taxonomy, or they appear in muted form.
Neither coalition denies that democratic institutions are under strain. Each coalition has a different list of strains. The list tracks the coalition’s interests. Balkin’s list is the liberal coalition’s list.

Information Fiduciaries as Attributional Bias

According to Balkin, Google, Meta, and similar companies hold their advantages because they have violated duties of care, loyalty, and confidentiality that they should have recognized. The position treats the platforms’ success as a product of internal misconduct rather than external circumstance. At the same time, legacy media institutions such as The New York Times, The Atlantic, and The Washington Post hold their positions because of their editorial integrity and their commitment to democratic discourse. The position treats legacy media success as internal virtue and platform success as internal vice.
Note the swap. Apply the fiduciary analogy to legacy media and the results change. Legacy newspapers hold enormous attention shares. They know vast amounts about their readers. They operate under commercial pressure that shapes their coverage. They could, on the same logic, be said to owe fiduciary duties to readers. Balkin does not press the analogy in that direction. The reason is coalition-rational. Legacy media are allies. Platforms are rivals of the liberal legal coalition’s preferred information order. The fiduciary frame gets applied to the rivals and not to the allies.

The Strange Bedfellows of Balkin’s Coalition

Law professors at Yale, Harvard, Columbia, Chicago, and Stanford sit alongside tech policy lawyers inside platform companies and federal agencies. They sit alongside journalists at legacy publications. They sit alongside civil rights litigators. They sit alongside corporate partners who clerked for liberal justices and now defend pharmaceutical companies. They sit alongside international lawyers who litigate human rights cases against the same corporations that employ their law school classmates.
The combination is not philosophically coherent. It is historically contingent. It formed during the post-Warren Court era when liberal legal elites consolidated their hold on elite law schools, federal agencies, and the federal bench. Balkin writes for this coalition. His theoretical synthesis serves the coalition’s need for a shared vocabulary that can paper over the substantive disagreements inside it. Framework originalism works for the Wall Street corporate lawyer who wants predictability. It works for the civil rights litigator who wants doctrinal evolution. It works for the agency lawyer who wants administrative deference. It works for the tech policy lawyer who wants fiduciary duties imposed on his client’s competitors. The theory does not resolve the internal contradictions. It lets the coalition proceed without having to resolve them.
Coalition intellectuals produce patchwork narratives that let allies coordinate without requiring substantive agreement. Balkin has produced the patchwork narrative that American liberal legal elites have used for three decades. That is a real intellectual achievement. It is not the philosophical achievement the theory claims.

Democracy and Dysfunction as Coalition Staging

Democracy and Dysfunction is a coalition staging exercise. Levinson pushes hard toward structural critique. Balkin pulls back toward redemption. The book stages the span of permissible disagreement inside the liberal legal coalition. Readers can locate themselves anywhere along the range Levinson and Balkin define, and the exercise reassures them that the range itself is the relevant one.
What the book does not stage is the conservative legal coalition’s version of the same questions. The Federalist Society’s theorists have their own account of democratic dysfunction. They locate it in agency capture, in judicial legislation, in the hollowing out of constitutional limits on federal power. That account is absent from Balkin and Levinson’s exchange. Its absence is coalition-rational. The book is not a philosophical treatment of American democratic dysfunction. It is the liberal coalition’s internal debate about liberal concerns. The presentation as philosophy serves the coalition by framing the internal debate as the whole debate.

The Commission as Alliance Performance

Political actors claim moral motivation. The Presidential Commission on the Supreme Court of the United States in 2021 illustrates the pattern at an institutional level. The commission was convened with bipartisan membership and a charge to examine reform proposals on their merits. Its presentation was the presentation of neutral deliberation.
Each commissioner arrived with coalition loyalties that shaped what he read as reform and what he read as capture. Conservative commissioners read the proposed reforms as liberal coalition attempts to undo electoral losses. Liberal commissioners read conservative resistance as bad faith. The final report split the difference by canvassing arguments without endorsing any. Pinsof would say the result was predictable. Two coalitions cannot deliberate toward shared conclusions when their interests diverge. They can only produce documents that record their disagreement in the vocabulary of neutral inquiry.
Balkin’s participation in the commission was coalition work performed in the register of scholarship. His coalition needed someone to represent its concerns in a voice that could plausibly claim neutrality. Balkin’s career had prepared him to do exactly that. He performed the role well. The role itself was alliance performance.

Motivated Reasoning as Signal of Loyalty

Balkin’s reasoning coincides with what his coalitions wants. He has not, in four decades of writing, reached a conclusion that would make his coalition uncomfortable. Framework originalism serves his coalition. Constitutional rot serves his coalition. Information fiduciaries serve his coalition. Democracy and Dysfunction serves his coalition. Memory and Authority serves his coalition. The concepts travel within the coalition because they fit the coalition’s needs. They do not travel outside it because they were not built to serve the rival coalition.

Constitutional Faith as Coalition Loyalty

Constitutional Redemptiond reads as constitutional faith as coalition loyalty in religious vocabulary. Balkin writes that commitment to the Constitution rests on belief in the possibility of redemption through interpretation and struggle. The belief is what his coalition needs its members to hold. Without the belief, the coalition’s project of redeeming the Constitution through interpretation collapses into a power struggle over who controls the interpretive apparatus. With the belief, the power struggle gets dressed in the vocabulary of faith.
Faith of this kind is strongest among those whose coalition position benefits most from the interpretive apparatus. Tenured law professors at elite institutions, federal judges appointed by liberal administrations, litigators at firms whose business depends on constitutional doctrine, activists whose funders require constitutional framing of their work.

The Balkinization Network as Alliance Infrastructure

Balkinization, the blog Balkin founded and edits, functions as a coordination device for a specific alliance. Its contributors are members of the same coalition. Its topics track the coalition’s concerns. Its tone registers the coalition’s evaluative grammar. Readers inside the coalition experience the blog as intellectual exchange. Readers outside it experience it as coalition propaganda, or they do not read it at all.

Niche Construction

Balkin did not find American liberal constitutional theory waiting for him in 1994 when he arrived at Yale. He helped construct it. The field as it stood when he entered was shaped by Laurence Tribe, Ronald Dworkin, John Hart Ely, and a handful of other figures whose work he absorbed and then modified. The Federalist Society was still assembling its counter-movement. Original meaning had not yet hardened into the doctrine it would become. Tech policy barely existed as a legal subfield. The digital information environment was in its early commercial stages.
Across the next thirty years Balkin constructed institutional infrastructure that did not exist when he arrived. The Information Society Project. The Abrams Institute for Freedom of Expression. The Knight Law and Media Program. Balkinization. Contributions to major casebooks that now shape how constitutional law is taught in a hundred law schools. A fellowship program that has placed trained minds in agencies, firms, and faculties across the country.
The modifications then selected for certain kinds of work and against others. Scholars whose interests aligned with the ISP agenda had a place to go. Scholars working on questions the ISP ignored had fewer institutional homes. Scholars who adopted Balkin’s vocabulary for platform regulation found their articles easier to place and cite. Scholars who rejected the vocabulary had to do more work to explain their alternatives. The niche Balkin built became the environment in which a generation of tech policy scholars developed their careers. Those scholars now staff the agencies, the firms, and the think tanks where tech policy gets made. The niche has reproduced itself.

Co-Evolution of Scholar and Environment

Niche construction theory emphasizes that the constructor and the environment co-evolve. The beaver that builds better dams gets more wetland, which selects for better dam-building. The earthworm that processes more soil gets richer soil, which selects for more soil processing.
Balkin’s concepts shaped the environment in which his subsequent concepts would be received. Framework originalism prepared the ground for constitutional construction as an acceptable scholarly category. Constitutional construction prepared the ground for constitutional rot as a diagnosis. Constitutional rot prepared the ground for democratic culture as a first-order concern. Democratic culture prepared the ground for information fiduciaries as a regulatory response. Each concept made the next concept easier to introduce, because the audience had been trained in the vocabulary the previous concept installed.
Niche construction builds compounding returns. The environmental modification from one generation of dams reduces the cost of the next generation. Balkin’s modifications to the legal academic environment reduced the cost of introducing each subsequent concept. His later work lands more easily than it would have without his earlier work. The career is not a sequence of independent contributions. It is a single extended engineering project in which each phase raises the value of the next.

The Niche That Shaped Balkin

Niche construction works both ways. The organism modifies the environment, and the modified environment then modifies the organism. Balkin built the Information Society Project. The ISP then shaped Balkin. His later writing took on the concerns of the ISP’s fellows and visitors. His concepts accommodated the problems his fellows brought to the table. The platform questions, the content moderation questions, the data privacy questions, were not questions Balkin walked in with in 1994. They were questions the environment he built delivered to him, and he became the kind of scholar those questions required.
The pattern runs through his career. He built Balkinization and then became the kind of scholar whose work could be contained in blog posts and elaborated in book chapters. He built the Knight Law and Media Program and then became the scholar who could speak to journalists about the First Amendment. He built the fellowship program and then became the scholar who mentors, coordinates, and convenes. The institutions he constructed reshaped him as much as he shaped them.

The Federalist Society as Competing Constructor

Niche construction theory holds that multiple constructors can modify overlapping environments, and the competition between their modifications becomes a selection pressure in its own right. Beavers and humans both modify wetlands. The two species now co-evolve in environments partly built by the other.
The Federalist Society has been the competing niche constructor in American constitutional law for the forty years of Balkin’s career. Its chapter system, its national conventions, its judicial clerkship pipeline, its Edwin Meese alumni networks, its think tank satellites at AEI and Heritage, and its judicial nominees now seated on the federal bench represent a parallel niche. The Federalist Society modifies the legal environment in directions that counteract Balkin’s modifications. Its constructed niche selects for scholars who read the Constitution differently, cite different cases as central, and train students to write for different audiences.
The two niches overlap at law schools, in the Supreme Court bar, in tech policy debates, and at venues where the two sides must address each other. At those points of overlap, each niche’s modifications impose costs on the other. A Balkin concept that would have landed smoothly in 1995 lands less smoothly in 2026 because the Federalist Society’s modifications have changed the receiving environment. Originalism has become a more sophisticated opponent. The conservative legal commentariat has developed its own platforms.

The Niche as Heritable Resource

The beaver dam continues to structure the wetland after the beaver that built it is dead. The earthworm’s processed soil continues to sustain a community long after the individual worm decomposes.
The Information Society Project is now into its second generation of fellows. The casebook chapters will shape constitutional teaching for at least another decade. The blog has spawned imitators and sister sites across the legal academic world. The fellowship program has placed alumni in positions where they are now constructing sub-niches of their own. A former ISP fellow who directs a new center at another law school is extending Balkin’s niche without Balkin’s direct participation.

Mismatch and the Limits of Constructed Niches

Beavers that built dams for slow, meandering streams may find their dams useless in a landscape that has turned to fast-moving rivers.
Balkin’s niche was built for a legal academic environment in which elite law schools controlled the selection of federal judges, legal doctrine developed through appellate case law, and platform companies were emerging but not yet dominant. The environment has changed. The selection of federal judges now runs through a Federalist Society pipeline Balkin’s niche cannot match. Legal doctrine is increasingly made by a Supreme Court majority that does not respect the pre-existing case law. Platform companies have grown to a scale that resists the regulatory paradigms his niche produces.

Life History Timing of Niche Investment

Balkin built ISP in the 1990s, when he was in his early forties. The timing was aggressive. He took the risk when he still had decades to invest in the institution. The payoff has been large. He now has the institution, the fellowship network, the alumni base, and the co-evolved scholarly environment to show for the early investment. A scholar who made the same investment in his sixties would have had less time for the returns to compound.
A constructed niche requires successor investment to persist. The beaver dam that is not maintained decays. The earthworm burrows that are not dug fill in. The infrastructure of niche construction depreciates without ongoing work.
Balkin’s niche faces a succession question. ISP, Balkinization, and the fellowship networks have accumulated human capital that must be invested for the niche to persist past his active career. Jack Balkin cannot personally mentor every future ISP fellow. He cannot edit every Balkinization post into the 2040s. He cannot revise every casebook chapter as the field changes. The niche requires inheritors who will continue the construction work.
The successor generation will hold the beliefs their position rewards them for holding. If the broader environment shifts away from the niche Balkin built, the successors may find that defending Balkin’s convenient beliefs becomes costly. Some of them may then modify the niche in directions Balkin did not anticipate. The modifications may preserve the niche by making it more fit to the new environment. Or the modifications may abandon parts of the niche that Balkin considered central.

Hybrid Vigor

The standard American elite legal pedigree is a tightly closed breeding population. Harvard undergraduate to Harvard law, then clerkship, then firm, then faculty, then chair. The population co-adapts over generations. Its gene complex produces recognizable traits: doctrinal fluency, policy pragmatism, a specific prose register, a defined taste in citation. The population is inbred. It crosses with itself. It selects from its own pool. It accumulates deleterious recessives that go undetected because the population that would detect them is outside the breeding circle.
Balkin entered this population through the Harvard track. He then did something unusual. He left to take a philosophy Ph.D. at Cambridge during a period when Cambridge still housed a working post-structuralist scene alongside its analytic tradition. He crossed his American legal training with continental philosophy, with a philosophical culture that read Foucault and Derrida as live interlocutors, with a pace and register of argument that the American legal academy did not produce.
Balkin’s later work shows a combinatorial capacity that pure Harvard-trained legal scholars rarely display. He can move between doctrinal analysis and cultural theory without the breaks that usually appear at the seams. He can write about ideology and belief formation in ways that connect to constitutional interpretation without either side of the connection feeling forced. He produces concepts, framework originalism, constitutional rot, ideological drift, democratic culture, information fiduciaries, that originate in the crossing rather than in either parent tradition alone. The scholar who left the homeland to study in a different intellectual environment came back with tools the homeland scholars had not developed.
tribe runs through Yale Law School progressive constitutional theory. Alexander Bickel’s descendants. Bruce Ackerman, Akhil Amar, Robert Post, Reva Siegel. The broader coalition covers the American Constitution Society, liberal law professors, and the progressive legal movement.
Horizontal gene transfer fits his central move. Originalism emerged from a specific conservative coalition: Federalist Society lawyers, Meese’s Justice Department, Bork, Scalia, the New Right. The method served to constrain judicial activism and preserve a traditional constitutional order. Balkin took originalism and moved it into a progressive host. Living Originalism by Jack Balkin argues that original public meaning supports outcomes the originalist coalition opposes, including broad readings of the Fourteenth Amendment and protection of reproductive rights. The text survives. The regulatory context does not travel.
Phenotypic plasticity shows across his venues. Technical law review articles for the legal academy. Balkinization blog posts for the legal-political public. Books for educated general readers. Same commitments, different expressions shaped by the audience each venue selects.
Exaptation describes what he does with the constitutional text. The Constitution, produced by an 18th-century coalition of Protestant men to establish a particular republican order, becomes a redemptive framework in his hands. Constitutional Redemption by Jack Balkin treats the document as an unfolding moral project whose meaning emerges through struggle toward inclusion. The original function was constraint of federal power and protection of a specific political settlement. The new function is justification of expansive rights claims and progressive transformation.
Signal parasitism operates on his use of originalism. Invoking originalism signals methodological rigor and respect for democratic legitimacy. The signal was built by a conservative coalition at considerable cost through decades of Federalist Society organizing, judicial nominations, and scholarly work. Balkin captures the signal for a different coalition. He pays none of the costs the signal’s originators paid.

‘E Pluribus Unum: Diversity and Community in the Twenty-first Century’

Balkin’s account of constitutional redemption requires a functioning interpretive community. The American people argue across generations about the Constitution’s meaning and move, through struggle, toward justice. The argument presupposes trust, engagement, and shared deliberation. Putnam’s data suggest that the diversity Balkin’s framework celebrates erodes the social capital the framework needs.
A tribe’s story requires a tribe. Balkin wants the Constitution’s redemptive meaning to travel across all the communities now constituting the American population. Putnam’s findings suggest the transmission meets resistance. New host environments do not generate the civic engagement the redemptive project presupposes. The conditions for constitutional conversation thin out as the conversation’s participants diversify.
Balkin’s work on constitutional rot addresses polarization, oligarchy, and institutional distrust. He does not identify diversity as a source of these conditions. Putnam’s data make such identification at least plausible. Balkin’s coalition commitments make it hard for him to consider the possibility. The internal exponent stays inside the tribe’s moral frame even when his own diagnostic categories point elsewhere.
Horizontal gene transfer operates again. Balkin borrows concepts from Burkean conservatism: constitutional tradition as living inheritance, political order depending on habits of trust, the fragility of republican institutions. He ports these concepts into a progressive project and strips the conservative warnings. The concepts keep their shape and lose their original function of urging preservation.
Signal parasitism runs both ways in this pairing. Balkin invokes originalism, tradition, and preservation while advocating transformation. Putnam invokes social science rigor while suppressing findings that threatened his coalition. Both men produce work shaped by coalition commitments that decide what counts as a usable signal and what gets buried.
One last point the frames clarify. Balkin cites Putnam on civic decline in his rot work. He does not cite Putnam on diversity. The citation pattern selects which parts of the scientific record travel into his framework. Material that supports his diagnosis moves across. Material that threatens his coalition’s story stays behind. The host environment selects. The signal gets filtered. The internal exponent’s reading of his own evidence follows the logic of coalition maintenance rather than the logic of the data.

Inbreeding Depression in the Home Population

The population Balkin rejoined after Cambridge has continued to inbreed. Yale, Harvard, Columbia, Chicago, Stanford, and NYU constitute the breeding pool for elite American constitutional theory. Their faculty hires each other’s graduates. Their journals publish each other’s alumni. Their commissions and editorial boards rotate the same names.
The deleterious recessives that accumulate in such a population are visible to anyone outside it and invisible to most inside. A taste for complexity that has lost contact with the underlying political questions. A citation pattern that treats the work of the coalition as the universe of serious thought and the work of the rival coalition as noise. A self-conception as a truth-seeking community that cannot examine itself with the same instruments it applies to its rivals. A prose register that signals membership more than it conveys information. These are the traits that a closed breeding population develops when outside genetic material cannot reach it.
Balkin’s early Cambridge cross gave him some protection against the depression. He could see, in ways that purely domestic scholars often could not, that constitutional interpretation was a cultural practice with its own self-maintaining conventions. He could thematize the practice rather than simply perform it. He could write about constitutional faith as a faith rather than as the natural attitude of any reasonable person. The Cambridge material in his genetic makeup let him treat the American legal academy as an object as well as a home.
The protection has limits. One Cambridge detour forty years ago does not inoculate a scholar forever. Balkin’s later work shows more of the home population’s traits than his earliest work did.

Outbreeding Depression at the Commission

Crossing is not always productive. When co-adapted gene complexes from different populations disrupt each other, the hybrid is worse than either parent. The Presidential Commission on the Supreme Court of the United States in 2021 illustrates the pattern.
The commission brought together liberal constitutional scholars with conservative originalists, former solicitors general with movement lawyers, process-oriented scholars with substance-oriented ones. On paper this was a cross between distinct intellectual populations. Heterosis might have predicted a report with unusual range and depth. Outbreeding depression predicted the opposite.
The report that emerged shows the outbreeding pattern. The two populations have co-adapted gene complexes that clash when forced into the same document. Conservative originalists operate on premises about text, history, and judicial role that liberal constitutionalists find implausible. Liberal constitutionalists operate on premises about construction, evolution, and democratic responsiveness that conservative originalists find illegitimate. The co-adaptations of each parent population, built up through decades of closed breeding, are not compatible with each other in a single document. The report canvasses positions without endorsing any. The canvassing was the only output possible given the biological conditions.
Balkin’s role in the commission was hybrid broker. He was there because his Cambridge cross had produced someone who could, in principle, speak across the breeding populations. He could not make the cross productive at the document level. The populations had inbred too long. The co-adapted complexes were too specific to their original environments. The hybrid that would have vigor in this domain would require a longer period of crossing than any commission can provide.

Life History Strategy and Career Pacing

Balkin’s career runs on a slow life history strategy executed with precision. Few articles. Long book projects. Monographs at Harvard, Yale, and Oxford university presses. Fellows trained over two-year appointments. Concepts developed across decades. The Cycles of Constitutional Time came thirty years after his first major book. Memory and Authority came another four years later. Each work invests heavily in its subject and in the network of students and colleagues that will carry the work forward.
The slow strategy fits the environment Balkin entered. American elite legal academia in the 1990s was a stable environment with predictable career paths, durable institutions, and reliable prestige hierarchies. A slow strategy was adaptive. Balkin’s careful pacing, his cultivation of institutional platforms, his long-horizon investment in fellows, all matched the environment’s rewards.
The environment has become less stable. The Federalist Society now controls the judicial pipeline his strategy assumed. Legal publishing has accelerated through blogs and podcasts. Attention has shifted to faster channels. A slow life history strategy in a faster environment produces fewer offspring than it did in the stable environment. Balkin’s fellows still place well. His books still get read. The returns are lower than they would have been twenty years ago, because the environment selects more strongly for quicker strategies than it did when Balkin calibrated his pacing.
Balkin’s prose registers seriousness through its restraint. He does not write the polemic that would earn him media attention. He does not make the quick intervention that would place him in the daily news cycle. He writes the book that takes seven years. He builds the institution that takes three decades. He refrains from the conduct that would bring the cheaper kinds of attention.

Countershading and the Synthesizer

The professional who presents as moderate while holding strong views is doing countershading. The institution that presents as neutral while systematically favoring one coalition is doing countershading.
Framework originalism is countershading at the level of constitutional theory. It produces a surface that the legal academy’s detection systems read as neutral. The pattern underneath remains. Liberal outcomes get produced. Conservative constraints get routed around. The countershading is what allows the pattern to operate without triggering the detection.
Balkin’s niche is fit for the environment it covers. Inside that environment, his concepts travel, his fellows place well, his books circulate, his blog coordinates the relevant community. The niche works as designed. The environments outside the niche, the Federalist Society pipeline, the state supreme courts, the regional law schools, the agencies under Republican administrations, the populist political movements that now shape American constitutional practice, select for different traits. The organism bred in Balkin’s niche cannot easily migrate to those environments. Its adaptations to the home niche are disadaptations to the external one.
The liberal legal academy produces scholars exquisitely adapted to its internal environment and poorly adapted to the broader political environment that now shapes constitutional practice. The Federalist Society produces scholars adapted to a different internal environment that has proven better matched to the broader political one.

Muller’s Ratchet and the Accumulation of Unchallenged Ideas

Asexual populations accumulate harmful mutations that recombination cannot purge. The ratchet applies to any system that cannot clear its accumulating errors through crossing with different material.
The liberal legal academy at the top institutions has been operating as something close to a ratchet population for a generation. Critical theory gets absorbed but not challenged from outside. Continental philosophy enters through specific approved channels. Empirical political science gets incorporated when it confirms the academy’s priors and ignored when it does not. The academy reads itself and its approved interlocutors. It does not systematically cross with the intellectual material produced by the rival coalition, by heterodox economics, by evolutionary psychology, by the sociology of professions.
The accumulated errors are the ideas that would have been challenged by crossing but were instead expressed unchecked. Balkin’s work carries some of these. His confidence that constitutional interpretation matters in the way the academy treats it matters. His confidence that platforms can be regulated through extensions of existing categories. His confidence that the current moment is rot rather than alternative construction. His confidence that liberal legal elites represent the continuity of the constitutional order while their conservative counterparts represent its interruption. These convictions have not been tested against intellectual populations with the tools to test them, because those populations have been walled out of the breeding pool.
Balkin’s early work shows the benefit of the crossing. His later work shows some of the accumulated errors the home population developed during his residence in it. The ratchet cannot be reversed by any individual effort. It can only be slowed by continued crossing with populations outside the closed system, and the closed system has been closing fast.

Balkin’s Hero System

Balkin’s hero system takes the Constitution as its sacred object. Not the document as printed text but the Constitution as a living tradition of interpretation running from the founding through Reconstruction, through the New Deal, through Brown, through the Warren Court, into the present. The tradition promises continuity across mortal lifespans. The lawyer who joins it at twenty-five and serves it until eighty dies inside a project that began before him and will continue after him. His contributions, a brief here, a doctrine there, an article in Yale Law Journal, a student trained, become permanent entries in a ledger the republic maintains.
Constitutional Redemption names the hero system. Faith. Redemption. An unjust world that can be made less unjust through interpretive struggle over time. The religious vocabulary is not ornamental. It describes what constitutional commitment is for the scholar who holds it. Balkin participates in a community of believers tending a sacred text across generations, confident that the text contains resources for redemption the current generation has not yet seen. Each interpretive contribution adds to a patrimony. Each trained student extends the line. The individual scholar dies. The tradition continues. That continuation is the immortality his life purchases.
The priesthood that tends the text has a clear membership. Tenured faculty at Yale, Harvard, Columbia, Chicago, Stanford, and NYU. Federal judges who understand themselves as participants in the same tradition. Supreme Court clerks who rotate through the elite law schools before returning to them. Lawyers at the firms whose partners clerked for the justices whose opinions the casebooks canonize. The priesthood maintains its own rituals. The conference. The workshop. The commemorative volume for a retiring justice. The clerkship reunion. The oral history project. Each ritual renews the participant’s sense that his work serves a tradition larger than any career.
The deepest terror in this hero system is that the Constitution cannot be redeemed. That the interpretive tradition he served turns out to have been a local dialect of American power politics, spoken by one coalition for a particular historical window, now being drowned out by a rival dialect that will not translate. That the sacred text was sacred only to his priesthood, not to the republic. That the succession breaks. That his fellows inherit a niche too mismatched to the environment to sustain them. That raw coalition combat, which the tradition was built to sublimate, returns as the open condition of constitutional life.
Becker insisted that the hero system must disguise itself to function. The scholar who experiences his scholarship as coalition work cannot redeem the Constitution. Balkin’s work performs the disguise with exceptional craft. The prose reads as disinterested. The synthesis reads as neutral. The diagnosis of rot reads as reluctant acknowledgment forced on him by evidence. The institution building reads as service to scholarship rather than as construction of a priesthood. The hero system that helps the participant face death must feel, from inside, like something other than what it is.
What threatens the hero system now is not any single conservative victory. Dobbs, Bruen, and Students for Fair Admissions are painful to Balkin’s coalition as legal losses. They are more painful as revelations that the tradition his priesthood tends is not the tradition the Court now serves. The Court speaks a different liturgy. It reads a different canon. It trains in a different seminary. The Federalist Society built a rival hero system across four decades while Balkin’s priesthood assumed its tradition was the only serious one. The rival system promises its own symbolic immortality to its own servants. A conservative clerk at a Thomas or Alito chamber participates in a line he experiences as running from the founding through the Reagan revolution to the current Court, a line that corrects the errors Balkin’s priesthood committed while mistaking its coalition work for the voice of the republic.
Balkin’s concepts perform defensive work inside his hero system that he cannot name without breaking the disguise. Constitutional rot sanctifies his coalition’s grievances as decay of the sacred order rather than as setbacks inside an ordinary political contest. The word itself does liturgical labor. It places the rival coalition on the side of corruption and his own on the side of the threatened patrimony. Framework originalism lets his priesthood keep speaking its dialect while claiming the prestige of the rival dialect’s vocabulary. Information fiduciaries extends his priesthood’s regulatory reach to the platforms that have begun to host rival liturgies. Each concept is a sacred maneuver as much as an analytic proposal. Each preserves the participant’s sense that his life serves a tradition worth serving.
Balkin cannot ask whether his priesthood has been serving the Constitution or serving itself. He cannot ask whether the rival priesthood’s reading of the text is as plausible as his own. He cannot ask whether the project of redemption through interpretation is a disguised bid by one coalition to rule through courts rather than legislatures. Asking any of these questions would withdraw his participation in the system that sustains his life’s meaning. Such questions do not occur to successful participants, or occur fleetingly and get dismissed, because the cost of entertaining them is too high. The participant’s psychology defends the hero system without the participant having to perform the defense consciously.
The current moment might yield to another reconstruction in which Balkin’s priesthood recovers its centrality. The framing may be correct. It is also what a participant in the hero system needs to believe to continue his service.
Memory and Authority tends to the tradition at a moment when the sources of its authority are contested. Lawyers deploy history to ground arguments. Balkin examines the deployment. The examination protects the practice of constitutional argument as a serious intellectual activity rather than as a coalition game. The protection is itself a sacred act. It says to the priesthood: what we do is still real work. The text still yields meaning to careful readers. Our service is not wasted.
The Federalist Society’s hero system does not compete with Balkin’s on the merits of interpretation. It competes on the plane where hero systems fight. Which tradition gets to claim continuity with the founding. Which priesthood gets to train the next generation of judges. Which rituals get funded by donors, staffed by clerks, covered by the press, sustained by the coalition that has the political power to sustain them. Balkin’s tradition held the dominant position for two generations after the Warren Court. The rival tradition now holds the dominant position. His fellows will spend their careers inside the rival’s environment, maintaining his priesthood at a lower amperage, hoping for a return to power.
Balkin has given his decades to a hero system that promised him symbolic immortality in exchange for his service to a sacred text. He has served it with craft and piety. The immortality the system offered him was contingent on the survival of the tradition that would carry his contributions forward. That tradition is under a kind of pressure it was not under when he entered it. His work now performs, alongside its ostensible subjects, the quieter labor of keeping the tradition alive long enough for the next generation to attempt its redemption.

‘Legal Education and the Reproduction of Hierarchy’ (1983)

Jack Balkin and legal philosopher Duncan Kennedy (b. 1942) are two halves of the same picture. Balkin describes the theology. Kennedy describes the seminary that produces the theologians. Turner describes the tacit recognition that lets the seminary select its own. Pinsof describes the coalition logic that explains why tacit recognition matters. Alexander describes the body that absorbs the training. You now have the full stack. Each theorist sees one floor. You can see the building.
Balkin’s project is about constitutional faith, civil religion, redemptive constitutionalism, and how the document functions as a sacred text around which a coalition of interpreters organizes itself. His tools are Protestant theology, American civic religion, and the sociology of canon formation. He is a man inside the temple describing the temple’s liturgy with affection and with enough distance to see the liturgy as liturgy. His critique is gentle because his attachment is real. He wants the faith reformed, not abolished.
Kennedy’s project is about the production of the men who perform the liturgy. He is not interested in the sacred text. He is interested in the seminary. His question is how the legal elite reproduces itself across generations, and his answer is that law school teaches submission through pedagogical violence disguised as rigor. The hierarchical classroom, the grading regime, the placement ritual, the modeling of how a professor treats a secretary, all run as a single training apparatus that produces lawyers who identify with hierarchy as such.
Now the additions Kennedy gives you that Balkin does not.
First, Kennedy gives you the body. Balkin stays at the level of doctrine, canon, faith, interpretation. Kennedy walks you into the room and describes the student’s shoulders, the sweating, the humiliation, the posture learned in the chair. Legal hierarchy is not a belief system. It is a set of bodily habits installed through repeated ritual. You cannot get this from Balkin. Alexander gives you the theory of how bodies learn submission. Kennedy gives you the specific American legal classroom where the bodies learn it. Your Levinson essay, and your forthcoming work, can now describe constitutional veneration as a bodily habit before it becomes a theological commitment. A lawyer who has learned in his spine to defer to the professor in the front of the room will defer in his spine to the text at the center of the tradition. The two deferences are the same deference.
Second, Kennedy gives you the specific content of the ideology Balkin describes as faith. Balkin calls it faith and leaves the content somewhat mystical. Kennedy describes the content precisely. The content is that legal reasoning is a distinct method, that this method produces correct answers, that the method is accessible only to trained practitioners, that untrained reactions of moral outrage to unjust outcomes are naive and nonlegal, that the distribution of capacities to perform the method is roughly captured by the grading system and the school hierarchy, and that this distribution is fair. Kennedy shows that each of these claims is false and that the falsity is load-bearing. The mystification is not incidental to the pedagogy. It is the pedagogy. Balkin’s faith is Kennedy’s mystification named politely.
Third, Kennedy gives you the sociology of reformist exhaustion that Balkin the reformer embodies. Kennedy describes the liberal law student who arrives believing in rights, spends three years watching the rights discourse get deployed with equal facility to protect any result, and graduates with his political hopes softened into a sense that things are complicated. Balkin is that student grown up. His sophistication, his capacity to hold every position in mind, his refusal of radical conclusions, his gentle institutional patriotism, his endless reframing, his redemptive optimism, are the mature form of the disposition the pedagogy installs. Balkin cannot see this about himself because the pedagogy installed the disposition below the level of conscious reflection. Kennedy can see it because Kennedy wrote from inside the same pedagogy while refusing its effects. Your essay can say that Balkin’s constitutional faith is the Harvard-Yale-educated lawyer’s way of converting his own training into a theology. The theology dignifies the pedagogy. The pedagogy produced the theologian.
Fourth, Kennedy gives you the material substrate Balkin cannot give you. Balkin writes about canon and faith. Kennedy writes about hiring committees, law review selection, summer associate programs, placement rituals, the fly-out, the rejection letter. He names the apparatus through which the coalition selects its next generation. This is the level Turner calls tacit knowledge and Pinsof calls alliance signaling. Balkin never goes here. He writes as if the profession were organized around ideas. Kennedy writes as a man who has sat on the hiring committee and watched what the committee does. If you pair Balkin on the sacred text with Kennedy on the seminary, you get something neither man alone provides. You get the full circuit. The text demands a class of interpreters. The seminary produces the class. The class venerates the text that justifies the seminary that credentials the class.
Fifth, Kennedy says rights discourse is internally incoherent, manipulable to reach any result, individualist in a way that blocks structural analysis, and dependent on a state-civil society split that hides the operations of power. Rights talk cannot name class domination, cannot name coalition gatekeeping, cannot name the reproduction of hierarchy because the vocabulary is structured to prevent the naming. This is why liberal critics of the legal system stay liberal. The vocabulary they must use to critique the system commits them to the framework the system rests on. Balkin’s constitutional faith is rights discourse elevated to theology. Kennedy tells you why rights discourse cannot do that work. The reason is not that the liberal is stupid. The reason is that the vocabulary is built to protect what I want to expose.
Sixth, Kennedy gives you a diagnosis of the left-liberal law professor that Balkin illustrates. Kennedy describes the professor who is vaguely sympathetic to progressive causes, who presents himself in class as a policy pluralist, who hires within the existing prestige hierarchy while supporting affirmative action rhetorically, who opposes the crude right while reproducing the soft center. This is Balkin. Also Tribe. Also Sunstein. Also Levinson in his more institutional moods. Kennedy describes this figure with precision and without contempt. The figure is the hegemonic product of the pedagogy, which means the figure cannot name what produced him. Kennedy can name it because Kennedy decided to break the hold. The hegemonic soft-center liberal legal academic is a sociological type, and that type staffs the elite legal academy and writes the constitutional-faith books.
Seventh, Kennedy gives you a positive account of what law school might be, which by negation tells you what law school is. His utopian proposal calls for a lottery admissions system, abolition of law review, equalization of faculty salaries with secretaries and janitors, rotation through non-faculty jobs, clinical training from day one, programmed instruction in doctrine, integration of left and right interdisciplinary streams. The proposals are impossible inside the existing coalition because the coalition rests on the inequalities Kennedy would abolish. This is diagnostic. Anything the coalition cannot accept is load-bearing for the coalition.
Ask of Balkin’s faith what change the faith cannot survive. The answer tells you what the faith is protecting. Affirmations are cheap. A coalition will affirm anything that does not threaten its operation. The threats are the tell. Watch where the faith bristles, where it treats a question as rude or unserious, where it produces heat rather than argument, where it changes the subject. That is where the load-bearing structure sits.
Apply this to Balkin.
Balkin’s constitutional faith can survive a great deal. It can survive the claim that the Constitution is a flawed document. Balkin says this himself. It can survive the claim that the framers were slaveholders. It can survive the claim that the text is ambiguous, that original meaning is contested, that constitutional interpretation is inescapably political, that the Supreme Court frequently decides cases wrongly, that the document has failed at key historical moments. Balkin accepts every one of these claims and weaves them into his framework. The faith is flexible. The flexibility is not evidence of the faith’s weakness. It is evidence of its strength. A rigid faith breaks. Balkin’s faith bends.
Now ask what Balkin’s faith cannot survive.
It cannot survive the claim that the American constitutional tradition is not worth redeeming. Balkin’s entire project is called redemptive constitutionalism. The word redemptive carries the load. Redemption presupposes that the thing redeemed is worth the effort. Balkin can accept every criticism of the Constitution as long as the criticism serves the eventual redemption. A critic who says the Constitution is flawed and should be fixed is inside the faith. A critic who says the Constitution is a bad framework for a good society and should be replaced with something fundamentally different has stepped outside. Balkin has no way to engage this second critic except as a heretic. This is the first thing the faith protects. It protects the assumption that the American constitutional project is the legitimate horizon for American political thought. Everything else is negotiable.
It cannot survive the claim that constitutional interpretation is an aristocratic practice that serves the interests of a specific professional class regardless of the interpreter’s politics. Balkin treats constitutional interpretation as a democratic activity, a practice in which citizens participate through protest movements, social change, and the long conversation across generations. This framing matters to him because it connects the legal academy to popular politics. The framing rests on a claim about who interprets. Balkin needs the interpreter to be, in principle, the demos. Kennedy says the interpreter is, in practice, a man trained at a small number of elite schools, placed through a small number of elite clerkships, installed in a small number of elite positions, and credentialed by a coalition that selects for class markers dressed as merit. If Kennedy is right, Balkin’s democratic framing is ideology in the strict sense. It describes as popular what is in fact professional. It describes as participatory what is in fact gatekept. Balkin cannot accept this description without abandoning the project. The faith protects the claim that the Constitution belongs to the people. It cannot survive the claim that the Constitution belongs to the guild.
It cannot survive the claim that the Supreme Court is a structural problem rather than a contingent one. Balkin treats the Court’s bad decisions as errors the Court might correct, as moments of failure in a larger arc that bends toward justice. Levinson shares this posture though he pushes harder on it. Both men can accept that the Court has been wrong about specific cases, wrong about whole eras, wrong about whole categories of people. What they cannot accept is that the institution of judicial review as practiced in the United States produces a small group of unelected men and women as the arbiters of constitutional meaning, and that this arrangement is incompatible with any reasonable account of democratic self-government. Jeremy Waldron makes this argument. Mark Tushnet makes variants of it. Balkin does not engage with it seriously because the engagement would require abandoning the framework that makes his scholarship possible. The faith protects judicial review as the site where constitutional meaning gets made. Without judicial review, there is no constitutional theory as currently practiced. There is something else, something Balkin’s career has not prepared him to describe.
It cannot survive the claim that the legal academy he inhabits is a parasitic institution that produces nothing the country needs. Balkin has spent his life as a professor at Yale Law School. His students have gone to the Supreme Court as clerks, to the Justice Department as lawyers, to the federal bench as judges, to the major law firms as partners, to law faculties as colleagues. He has watched the pipeline work. He believes in the pipeline. The faith requires this belief. If the pipeline produces men who are, on net, a drag on the country, then Balkin has spent his career serving something that damages what he claims to love. He cannot hold this thought for more than a few seconds. The faith protects the professor’s belief that his teaching matters, that his students are better for having listened to him, that the system he serves is a net good even when it errs. Remove this protection and Balkin’s career collapses into a sociological fact about how elite institutions maintain themselves by absorbing the critical energy of their most talented members.
It cannot survive the claim that constitutional faith itself is the problem. Balkin writes as if the faith, properly interpreted, leads to redemption. Kennedy and your own work suggest that the faith is the machinery by which the coalition converts political questions into legal questions and then converts legal questions into credentialed-expert questions, removing them from popular control while maintaining the appearance of democratic legitimacy. The faith is not a resource for democratic politics. The faith is a substitute for democratic politics. Each generation that is trained to believe the Constitution answers the important questions is a generation that learns not to ask the questions in their political form. Balkin cannot accept this because accepting it means his life’s work has been part of what he has been critiquing. The faith protects the assumption that faith itself is good, that belief in the Constitution is a civic virtue rather than a civic disease. This is the deepest protection. Everything else follows from this.
Now let’s apply this framework to Orthodox Judaism.
What can Orthodox faith survive? It can survive the claim that specific rabbis are corrupt. It can survive the claim that specific rulings are wrong. It can survive serious intellectual critique of halachic reasoning. It cannot survive the claim that the rabbinic coalition exists to protect rabbinic authority rather than to transmit divine instruction. It cannot survive the claim that the beit din process is a coalition-political instrument rather than a halachic one. It cannot survive the claim that the community’s marriage restrictions on converts are about status maintenance rather than about lineage continuity. The faith protects the rabbinate’s self-description as servant of the tradition. Remove this description and the whole apparatus reveals itself as what Turner would call a gatekeeping coalition dressed in sacred vocabulary.
Apply it to the Seventh-day Adventist institutional church. What can Adventist faith survive? It can survive the claim that specific doctrines are wrong. It can survive revision of prophetic timelines, reinterpretation of Ellen White, renegotiation of dietary rules. It cannot survive the claim that the denominational structure exists to protect the denominational structure. It cannot survive the claim that Glacier View was a political event staged as a theological one. It cannot survive the claim that the investigative judgment doctrine serves to keep the laity in a state of permanent anxiety that makes them tractable to institutional authority. My father reached the edge of these claims in 1980 and the institution expelled him. The expulsion tells you what the faith was protecting. Not the doctrine. The structure that the doctrine justified.
What can David Pinsof’s Alliance Theory framework survive? It can survive critiques of specific applications. It can survive debate about whether this or that coalition exists. What can it not survive? The framework protects the assumption that human social life is reducible to coalition competition. If a critic came along and said that human social life has a substantial component that is not coalition competition, that genuine truth-seeking happens sometimes, that ethical reasoning operates at a level the framework cannot describe, I would have to engage the critic rather than dismiss him. The framework cannot survive the claim that the framework is itself an instance of the thing it describes. Applying the faith test to my own tools keeps the tools sharp. A tool that cannot cut its user is a tool the user has stopped using as a tool and started using as an identity.
Apply it to American liberalism more broadly. What can liberalism survive? It can survive failures of policy, betrayals of principle, defeats at the ballot box, the rise of enemies on the right and left. It cannot survive the claim that procedural justice cannot carry the weight liberalism asks it to carry. It cannot survive the claim that rights discourse is structurally incapable of addressing class domination. It cannot survive the claim that the neutral state is a fiction that protects specific interests while presenting itself as protecting none. Liberals who take these claims seriously stop being liberals. They become socialists or reactionaries or something else. The faith protects the procedural framework. The framework protects the arrangement of power the framework conceals.
The general form of the test is this. Ask what the faith permits to be discussed. Ask what the faith forbids without needing to articulate the forbidding. The gap between what gets articulated and what gets silently foreclosed is the load-bearing structure. A faith that foreclosed nothing would have nothing to protect. A faith that foreclosed everything would have no room to accommodate a surrounding society. Real coalitions forbid some things and permit others, and the pattern of permissions and forbiddings tells you what the coalition is for.

Balkin Under Hugo Mercier and John M. Doris

Balkin’s project rests on a specific theory of how constitutional meaning reaches citizens, how citizens hold constitutional commitments, and how those commitments translate into political behavior that can produce constitutional change. The theory is explicit in Balkin’s work. Constitutional meaning is sustained by popular attachment. Citizens who revere the Constitution engage its principles across time, forming what Balkin calls constitutional faith, which both binds them to the document and authorizes their ongoing interpretive work. Constitutional change occurs when social movements mobilize popular constitutional sentiment around reinterpretations that eventually become authoritative. The civil rights movement’s success in producing post-1954 equal protection jurisprudence exemplifies the pattern. Popular constitutional mobilization produced the sustained pressure that eventually led to constitutional transformation through judicial, legislative, and cultural channels operating together.
Mercier and Doris together identify specific problems with this theory at the level of its cognitive and behavioral assumptions.
Take constitutional faith first. Balkin’s account treats it as a genuinely held commitment that shapes how citizens engage political questions. Citizens care about the Constitution, hold views about what it means, and bring those views to bear on their political choices.
Mercier’s framework produces a specific reading of this attachment. Constitutional commitments in most citizens are reflective beliefs. They are held, professed, and available for discussion but do not drive behavior in the way Balkin’s framework requires. The citizen who says he reveres the Constitution, affirms the importance of constitutional rights, and supports constitutional democracy is making statements that have low stakes for him personally in most circumstances. His vigilance on his own constitutional commitments runs weakly because nothing he does in his daily life tests those commitments against cost. He can hold them alongside behaviors that contradict them without experiencing the contradiction, because the beliefs sit in the reflective zone where cognitive engagement is minimal.
This is not a failure of the citizen’s character. It is the predictable condition of beliefs about abstract structural matters that do not touch vital interests. The same citizen who holds constitutional commitments reflectively will run intensive vigilance on specific constitutional questions when those questions affect him directly. The gun owner who faces Second Amendment litigation, the property owner whose zoning case involves takings doctrine, the business facing regulatory action under the Commerce Clause, the criminal defendant whose Fourth Amendment claim could determine his freedom. All run operational vigilance on the specific doctrines their cases engage. Stakes activate vigilance. The specific constitutional questions that bear on vital interests get processed at high intensity. The general constitutional faith Balkin describes is the reflective layer that sits above the stakes-differentiated operational engagement of specific populations with specific constitutional questions.
Constitutional faith as he describes it does not do the work he assigns to it because it is not the kind of belief that does work. It is reflective belief that citizens hold because doing so is low cost and socially appropriate. It is not intuitive belief that drives behavior across the range of constitutional questions the framework’s democratic constitutionalism requires.
Balkin’s theory of constitutional change requires popular constitutional mobilization that his cognitive assumptions cannot support. The civil rights movement’s success is the paradigm case in his work. The movement mobilized constitutional sentiment around equal protection, produced sustained political and cultural pressure, and eventually achieved transformation across judicial, legislative, and popular registers. Balkin reads this as popular constitutional faith in action.
Mercier’s framework reads the same events differently. Civil rights transformation occurred because specific populations had vital-interest stakes that activated their vigilance. Black Americans had intuitive commitments to equal treatment because segregation constrained their lives operationally. Northern liberals had stakes that included coalition politics, party alignment, and economic interests in Southern modernization. Cold War policymakers had stakes in eliminating Jim Crow because it damaged American standing against Soviet propaganda. The populations whose stakes were engaged produced the political movement. The populations whose stakes were not engaged produced reflective acceptance of the movement’s framings without active opposition, because opposing the movement would have required operational engagement they had no reason to undertake.
The constitutional faith framing ratified what stakes-organized politics had produced. The framing did not cause the movement. It did not even centrally sustain the movement, which was sustained by the operational engagement of populations whose vital interests were in play. Balkin’s framework treats the ratification layer as if it were the causal mechanism. The causal mechanism was the stakes-differentiated vigilance Mercier specifies, operating through populations whose vital interests aligned to produce the political coalition that achieved the transformation.
Doris extends this into the behavioral layer. The civil rights movement succeeded not only because specific populations had engaged stakes but because the situational architecture of American politics shifted in ways that made compliance with civil rights changes low-cost relative to non-compliance. Federal enforcement, economic penalties for non-compliance, corporate interests in Southern markets that required stability, media attention that made resistance situationally costly for local officials. These situational features did the behavioral work. The Southern business owner who complied with desegregation did so because the cost of non-compliance had risen above the cost of compliance. His belief about Black civil status often did not change. The situation changed, and the behavior tracked the situation.
Balkin’s framework treats the moral transformation of American civil consciousness as the mechanism. The behavioral mechanism was situational. The moral transformation Balkin describes happened in some populations whose vital interests and prior commitments prepared them for it. It did not happen in other populations whose behavior changed anyway because situations imposed costs that made non-compliance unsustainable. The pattern is cleaner on the Mercier-Doris reading than on the constitutional faith reading. It is also more depressing for Balkin’s project, because it suggests that constitutional transformation runs through stakes-differentiated vigilance and situational engineering rather than through the popular constitutional engagement his framework requires.
Take Balkin’s framework originalism next. The theory argues that the Constitution commits us to its original public meaning at the level of general principles, while leaving substantial space for ongoing interpretation about how those principles apply to specific questions. Citizens and officials engage the Constitution by holding themselves accountable to the original framework while working out its implications for present circumstances. The theory aims to reconcile originalism’s democratic legitimacy claims with living constitutionalism’s recognition that constitutional meaning develops over time.
Mercier’s framework asks: Who holds themselves accountable to the original framework, and with what vigilance, given what stakes? The theoretical architecture assumes an engaged constitutional community whose members process original meaning, work out its implications, and hold each other accountable for faithful engagement with the framework. This community does exist, but it is small and specifically situated. It consists principally of constitutional scholars, appellate litigators, a subset of appellate judges, and the relatively thin layer of elite political commentary that engages constitutional questions seriously. This population has operational stakes in constitutional meaning because their careers depend on producing persuasive constitutional argument.
The broader population Balkin’s framework invokes does not have these stakes. Ordinary citizens do not engage original meaning. They hold reflective beliefs about constitutional commitments that are consistent with whatever their political coalition currently advocates, and they update those beliefs when the coalition updates. Balkin’s framework treats this as incomplete engagement that education and political mobilization can address. Mercier’s framework treats it as the predictable condition of belief about matters that do not touch vital interests. The engagement gap is not a failure of the framework’s operation. It is the structural condition the framework operates within, and which the framework’s architecture does not adequately register.
Doris adds that even the specialized constitutional community Balkin’s theory engages produces its constitutional interpretations through situations that shape those interpretations more than the theory acknowledges. Yale Law School’s constitutional theory discourse, the Federalist Society’s constitutional theory discourse, the Supreme Court clerk pipelines, the elite appellate bar, each operates within situations whose rewards shape the interpretations produced within them. Balkin’s framework treats these as forums where reasoned constitutional argument takes place. They are forums where reasoned constitutional argument takes place, but the reasoning is substantially produced by the situations rather than operating independently of them. The same legal mind, placed in a different situation, would produce different constitutional interpretations without different underlying analytical capacity. This is not a criticism specific to Balkin. It is the general Doris point about how intellectual work gets produced. It is a problem for Balkin’s framework specifically because the framework assumes a level of situational independence in constitutional reasoning that Doris’s evidence does not support.
Take Balkin’s account of constitutional cycles in The Cycles of Constitutional Time. The book argues that American constitutional politics moves through identifiable cycles of regime-building, regime maintenance, and regime decay, with specific features repeating across historical periods. The argument produces a framework for understanding the current period (which Balkin identifies as late in a Reagan-era regime approaching transition) that locates present constitutional conflicts within a longer pattern of American constitutional development.
The cycles Balkin describes are real in the sense that American politics exhibits the periodic regime transitions he identifies. The cycles are not produced by the constitutional dynamics his framework emphasizes. They are produced by the underlying movement of stakes-organized populations across historical time. Industrial workers had engaged stakes in the New Deal period that produced the New Deal regime. Those stakes dissipated as manufacturing declined and the populations that held them aged out. Different populations with different stakes became ascendant, producing the Reagan-era transition. The same process is now producing whatever transition follows. The constitutional dynamics Balkin emphasizes ride the transitions rather than causing them. The cycles are population-stakes cycles, not constitutional cycles.
Balkin’s framework treats the transition as a constitutional matter that popular constitutional mobilization will resolve through the democratic processes the framework specifies. The Mercier-Doris framework treats the transition as a stakes-realignment whose constitutional manifestations are downstream. The transition will be produced by whatever stakes-organized populations emerge from the current material and situational conditions. The constitutional content will ratify whatever the stakes-realignment produces. The framework cannot predict the outcome by analyzing constitutional possibilities because the outcome is being determined at a different level.
Balkin’s specific political positioning illustrates what his framework cannot see. He has been a liberal constitutional theorist across a period in which the liberal coalition has fragmented. His framework treats this fragmentation as a problem for democratic constitutionalism that might be addressed through better constitutional theory, better legal institutions, better popular engagement. The Mercier-Doris framework treats the fragmentation as the movement of stakes-organized populations away from the coalition Balkin’s career was built within. The coalition fragmented because its constitutive populations’ stakes moved. No constitutional theory, however sophisticated, can reassemble the coalition because the coalition was not held together by constitutional agreement. It was held together by stakes alignment, and the stakes no longer align.
Balkin’s institutional position at Yale Law School illustrates the career pattern Mercier and Doris together predict. Yale Law School is one of the two or three most prestigious legal academic situations in the world. The institution rewards specific kinds of contributions: ambitious theoretical syntheses, engagement with elite constitutional discourse, production of influential students who populate elite legal and judicial positions, participation in the rituals of elite legal life. Balkin has performed this work at the highest level for three decades. His career is the predictable output of an unusually talented legal academic operating within one of the most demanding situations in the legal academy.
A Balkin placed in a different situation, perhaps at a regional state law school or in a non-academic legal position, would have produced different work. The theoretical syntheses, the blog, the framework originalism, the cycles book, all reflect what the Yale situation rewards. This is not a criticism. It is a clarification that his specific contributions are the equilibrium of a specific career situation. The situation selects for the work, and the work’s specific character reflects the situation.
The audience for Balkin’s work is the specific population whose stakes align with the constitutional academy’s output. Federal judges, Supreme Court clerks, elite appellate litigators, law professors at peer institutions, advanced law students, the subset of policy intellectuals who engage constitutional questions seriously. This audience runs vigilance on Balkin’s work calibrated to their stakes within the legal-academic world. They cite him, engage his arguments, produce responses, and incorporate his framework into their own work. The constitutional theoretical community is internally coherent and reproduces itself across generations of students, clerks, professors, and practitioners.
The audience Balkin’s framework would also need to reach, the general democratic public that engages constitutional meaning through popular mobilization, does not run this vigilance. The general public’s relationship to constitutional questions is mediated through political coalitions whose leaders selectively deploy constitutional rhetoric in service of coalition interests. The constitutional theoretical community produces the sophisticated theoretical architecture. The political coalitions use fragments of the architecture tactically when they serve coalition purposes. The connection Balkin’s framework requires, between sophisticated constitutional theory and popular constitutional engagement, does not exist at the level his framework demands.
This is worth making explicit because it bears on what Balkin’s project can accomplish. The project can produce excellent constitutional theoretical work that circulates within the constitutional theoretical community. It can produce students and clerks who become judges and litigators who import framework originalist thinking into specific constitutional cases. It can influence the specific doctrinal development of constitutional law through the channels the legal academic community operates. These are real achievements. The project cannot produce the broader democratic constitutional transformation the framework sometimes implies is achievable, because the framework’s assumptions about popular constitutional engagement do not match the cognitive and behavioral realities the Mercier-Doris framework specifies.
Balkin’s Balkinization blog illustrates the same pattern. The blog is influential within the constitutional academy and among engaged legal commentators. Its readership is specialized. The conversations it sustains are valuable within the specialized community. The blog does not reach the general democratic public, and its constitutional theoretical content would not produce different behavior in the general public if it did reach them, because the general public’s constitutional beliefs are reflective and do not drive behavior in the ways the blog’s implicit theory of influence would require.
A specific tension in Balkin’s work becomes visible under the Mercier-Doris reading. He is too sophisticated a thinker to believe the crudest version of popular constitutional engagement. His work includes careful attention to how constitutional meaning is mediated through elites, institutions, and social movements. But the framework’s fundamental architecture requires popular constitutional engagement as a legitimating mechanism, even when Balkin’s own analysis of specific cases shows that elite and institutional mediation does most of the work. The tension sits in the gap between what his theory requires and what his historical analysis shows. The theory requires a more engaged public than his historical cases depict. The historical cases show elite and institutional mediation producing the outcomes that the theoretical framework then attributes to popular engagement.
This tension resolves by abandoning the popular engagement requirement and building the theory instead on the realistic cognitive and behavioral structure the evidence supports. Constitutional meaning is produced and transmitted through specialized communities whose members have stakes in it. Constitutional change occurs when stakes-organized populations in the broader society align in ways that produce political coalitions with constitutional implications. The specialized community ratifies, theorizes, and develops the implications. The populations produce the movement. The legitimating rhetoric of popular constitutional engagement is a convenient fiction that serves democratic theory’s aesthetic requirements without corresponding to how the process operates.
What survives the combined critique is a substantial Balkin. The specialized constitutional theoretical work is genuinely impressive. The framework originalism synthesis is one of the more sophisticated constitutional theoretical positions available. The historical work on constitutional development traces real patterns. The institutional contribution through Yale Law School and Balkinization is significant. Students trained in his framework will populate the federal judiciary and the elite legal academy for decades and will produce doctrinal work that reflects his influence.
The larger Balkin, the theorist whose framework grounds constitutional legitimacy in popular constitutional engagement and whose cyclical framework promises democratic constitutional renewal through popular mobilization, rests on cognitive and behavioral assumptions the evidence does not support. Popular constitutional engagement as the framework requires does not exist. The constitutional change Balkin attributes to popular mobilization runs through stakes-organized populations and situational engineering whose constitutional manifestations are downstream. The democratic legitimation the framework seeks to provide is not provided by the processes it describes because those processes do not operate in the populations the framework invokes.
Balkin’s response to this critique, if he engaged it, would likely be to argue that democratic constitutional theory needs to work with idealized assumptions about popular engagement because those assumptions are themselves part of what sustains the democratic practice. This is a coherent response within a particular understanding of constitutional theory’s function. The response accepts that the framework is partially fictional and argues that the fiction has democratic value. Mercier and Doris do not have a specific answer to this response, because the frameworks describe what is rather than what legitimating fictions might usefully posit. If Balkin’s framework is understood as a legitimating fiction rather than as a descriptive theory, the critique lands differently. The fiction may still be useful even if it is not accurate. The descriptive theory fails even while the fiction persists.

Buffered & Porous Selves

Balkin is a buffered self whose central intellectual project depends on what Taylor would call residually porous categories that buffered constitutional theory cannot fully account for. The distinctive Balkin concepts (constitutional faith, constitutional redemption, constitutional rot, constitutional time) all require something like porous engagement for the constitutional order to function as he claims it does. “Faith” is not a buffered category. “Redemption” is not a buffered category. “Rot” as Balkin uses it is closer to organic or spiritual decay than to engineering failure. Balkin borrows the vocabulary of religious and organic discourse while operating within the buffered institutional framework of secular constitutional theory. The borrowing is self-conscious. The tensions it generates are the distinctive feature of his work.
Constitutional Redemption treats constitutional commitment as a form of political faith. This is striking because most contemporary constitutional theory avoids the vocabulary of faith. Originalists appeal to textual meaning as empirical fact. Living constitutionalists appeal to evolving moral consensus. Both operate within buffered frameworks where constitutional meaning comes through rational analysis of available materials. Balkin reintroduces faith as analytical category. The constitution is unfinished. It is often unjust. Commitment to it rests on the belief that it can be redeemed through interpretation and struggle. This is porous-adjacent language. It treats the constitutional order as something that makes demands on its adherents that exceed what rational analysis of text and history can deliver.
Taylor argues that modern political orders depend on what he calls the modern social imaginary, which functions as secular analog to older religious imaginaries. The social imaginary provides the background understanding that makes political practices meaningful. Constitutional faith as Balkin describes it is a manifestation of the modern social imaginary operating as quasi-religious commitment within secular institutional frameworks. The faith is not explicitly religious. It functions as religious commitment does. It sustains adherents through failures of the constitutional order. It demands sacrifice of immediate interests for longer-term constitutional goods. It produces martyrs (civil rights workers, for instance) and saints (Lincoln, the Warren Court) and demons (Dred Scott, Plessy, Korematsu). The vocabulary Balkin deploys reads as quasi-religious even when secularly framed.
Balkin is a buffered self describing constitutional practices that require porous-adjacent commitment from their practitioners. He is not himself porous in the sense Haque is. He does not experience constitutional commitment as transcendent reality making claims on him. He does experience constitutional commitment as demanding practices that resemble religious practices structurally. The resemblance is what his work identifies. He calls it faith because faith is the closest available vocabulary. He calls it redemption because redemption captures something about the orientation toward future constitutional improvement that operates in committed constitutionalists. He describes constitutional rot because rot captures something organic about how institutions lose the commitment that sustains them.
Can constitutional faith sustain itself under buffered conditions? Taylor’s framework suggests that genuinely religious faith required porous conditions that modernity has eroded. The parallel question for constitutional faith is whether it can survive the buffering that modernity imposes. Balkin’s diagnosis of constitutional rot is relevant here. The rot he describes is what happens when elites stop sustaining the unwritten norms that make the constitutional system work. The norms depend on commitment that looks structurally like religious commitment. The commitment requires something like porous engagement with the constitutional order. Under fully buffered conditions, the commitment atrophies because buffered selves cannot sustain it. The rot is what results.
This is the important contribution Balkin’s framework makes. He identifies what happens when constitutional orders lose the quasi-religious commitment that sustained them. He calls the result rot. Taylor would call it the secular disenchantment of political orders that previously functioned through quasi-porous commitment. The two diagnoses converge. Balkin operates within secular constitutional theory. Taylor operates within philosophy of secularization. They describe the same phenomenon from different angles. Balkin does not cite Taylor in the work I know, though I could be wrong. The convergence suggests that Balkin has independently reached Taylor-adjacent conclusions about the phenomenological conditions required for functional constitutional practice.
Where most constitutional theorists treat constitutional commitment as rationally grounded in text, history, or principle, Balkin treats it as requiring something more than rational grounding can provide. This makes him different from both originalists and standard living constitutionalists. Originalists try to ground constitutional commitment in historical meaning. Living constitutionalists try to ground it in evolving moral consensus. Balkin treats both groundings as insufficient because both miss the faith dimension that sustains constitutional practice. The faith is not grounded in text or in consensus. It is grounded in the commitment itself, which functions like religious commitment does, sustaining adherents through failures and disappointments that rational grounding cannot.
Sanford Levinson, Balkin’s frequent co-author, pushes harder on structural failure in Democracy and Dysfunction. Levinson concludes that the constitutional system is fundamentally broken and requires constitutional revision. Balkin cannot reach this conclusion because doing so would abandon the faith that his framework requires. Levinson operates in more thoroughly buffered mode. Balkin retains the faith dimension that keeps him committed to the existing constitutional order despite its documented failures. The difference between the two men is Taylor’s distinction playing out in scholarly practice. Levinson is more fully buffered. Balkin retains quasi-porous commitment to the constitutional order that Levinson has partially buffered himself away from.
Balkin’s contribution depends on retaining the faith dimension. Without the faith, his concepts collapse into standard living constitutionalism or standard originalism. With the faith, he holds a distinctive position that identifies something real about how constitutional orders function. Taylor’s framework validates the importance of the faith dimension even as it raises questions about whether the faith can survive modernizing conditions that erode it. Balkin holds the faith. He also diagnoses the rot that threatens it. The combination is the distinctive feature of his work.
Most readers receive Balkin’s work within buffered academic frameworks that cannot share the faith he brings to his own work. His concepts become analytical tools for studying constitutional practice. The faith dimension gets bracketed. When the faith dimension gets bracketed, the concepts lose some of their distinctive force. Readers who receive Balkin as empirical theorist of constitutional practice miss something. Readers who receive him as a religious-adjacent thinker get something his secular academic framing disclaims. Neither reception is quite right. Balkin operates in a middle position that depends on both registers simultaneously and cannot be fully captured in either one alone.
Both Myers and Balkin operate in structurally similar middle positions. Myers operates on porous Jewish materials as buffered scholar while attempting to keep porous dimensions available through scholarly and liturgical work. Balkin operates on secularly framed constitutional materials as buffered scholar while attempting to keep quasi-porous dimensions (faith, redemption, rot) available through theoretical work. Both men face structurally similar difficulty. Buffered readers bracket the porous-adjacent dimensions. Porous readers would want fuller commitment than secular academic framing permits. The middle position is difficult to sustain because it resists the simplifications that either pole would impose.
Yale Law School does not share Balkin’s faith. The institution operates within standard buffered academic frameworks. Balkin’s work gets received within those frameworks. The faith dimension gets treated as interesting theoretical move rather than as what Balkin means. This is not bad faith on Yale’s part. It is what buffered institutions do with porous-adjacent content. The content gets academicized. The academicized version works as scholarship. Something gets lost in the translation. Balkin knows this. He continues to work within the institution despite the limit.
Balkin’s writing reaches audiences that include both academic legal scholars and broader liberal constitutionalist publics through the Balkinization blog and trade press publications. The broader publics receive the faith dimensions more readily than the academic audience does. Liberal constitutionalists who read Balkin often need what he provides, which is quasi-religious framing for their political commitments that helps sustain the commitments under conditions of constitutional dysfunction. The function is what Taylor would predict. Political commitments need something like religious framing to sustain themselves under difficult conditions. Balkin provides that framing. The providing is part of what makes his work influential beyond academic circles.
The previous Levinson-Balkin work on constitutional dictatorship identifies the structural pattern of emergency-governance accumulation. Turner and Pinsof would identify the coalition dimensions of how Balkin’s work functions. Alexander would identify the cultural trauma and civic sacred dimensions. Taylor adds identification of what Balkin is doing phenomenologically. He is sustaining quasi-religious commitment to a constitutional order that modernizing conditions work against. The quasi-religious commitment is what his distinctive concepts all require and enable. Without Taylor’s framework, the quasi-religious dimension remains implicit. With Taylor’s framework, the dimension becomes explicit and available for analytical attention.
Balkin is attempting what Taylor would call sustaining the immanent frame under conditions that work against it. The immanent frame refers to the modern secular understanding that treats all meaning as internally generated rather than externally given. Within the immanent frame, commitments must be constructed and sustained through human effort rather than received from transcendent sources. Constitutional faith as Balkin describes it is exactly this kind of internally generated commitment. The commitment functions religiously while not being religious. It requires the believer to sustain it through continuous interpretive and political work. The work is difficult. The work is what Balkin does and advocates for. The difficulty of the work is what produces constitutional rot when the work stops.
Taylor’s framework suggests that commitments sustained entirely within the immanent frame face particular difficulties that religious commitments sustained within porous conditions do not face. The immanent-frame commitment requires continuous effort that wears people down. The porous commitment receives energy from the transcendent source that the porous self experiences as acting upon it. Immanent commitment has to generate its own energy. Balkin’s constitutional faith requires continuous generation of constitutional commitment through sheer will of committed constitutionalists. This is possible. This is difficult. Under conditions of constitutional rot, the generation fails more often than it succeeds. Balkin documents the failures while continuing to generate his own commitment despite them. The heroism of his project is clear. The sustainability of the project is less clear. Taylor’s framework suggests that sustainability is uncertain under conditions that work against immanent-frame commitment.
Your previous work has Balkin as custodian of a fraying constitution, as Yale-positioned theorist of living originalism and constitutional rot, as co-author with Levinson on constitutional dictatorship. Taylor’s framework adds that what Balkin is doing is phenomenologically distinctive. He is practicing what Taylor would call immanent-frame spirituality applied to the constitutional order. The spirituality is real. It is also difficult to sustain. Balkin’s career is an extended attempt to sustain it under increasingly difficult conditions. The sustainability is uncertain. The attempt is valuable regardless of whether it succeeds.
The Taylor framework makes visible something that Balkin’s own framework cannot quite name from within. Balkin knows his work involves something like faith. He calls it faith. But he does not have vocabulary from within his own tradition for understanding why the faith is so difficult to sustain. Taylor’s framework provides the vocabulary. The difficulty comes from the structural feature of modern consciousness that Taylor calls the buffered self. The buffered self cannot easily sustain the quasi-religious commitments that Balkin identifies as necessary for functional constitutional practice. The constitutional rot Balkin diagnoses is what happens when buffered selves lack what sustains the constitutional order. The analytical reframing clarifies what Balkin’s project is up against. The project is deeply valuable. The obstacles to its success are greater than Balkin’s own vocabulary makes clear.

Experts and Expertise

The peer network of constitutional law granted him standing through every recognized procedure. Yale Law School, which sits at the apex of the legal academic hierarchy, hired and promoted him. The network’s procedures for granting standing all returned favorable verdicts on him. Whatever tests the discipline applies to candidates for the highest standing, Balkin passed them.
The Turner question is what tests the discipline applies. The discipline claims to test for substantive contribution to legal understanding, methodological rigor, scholarly productivity, and intellectual significance. The discipline also tests, less officially, for fit with the social and political dispositions of the academic legal community, for alignment with prevailing professional norms, for capacity to engage with the discipline’s preoccupations in ways the discipline recognizes as serious. Balkin has passed both sets of tests across his career. The substantive contributions are real. The fit is also real. The two coincide in his case in ways they do not always coincide for figures the discipline grants standing to.
His major substantive contribution has been the development of what he calls living originalism, articulated most fully in his 2011 book of that title. The argument holds that constitutional originalism and living constitutionalism are compatible rather than opposed. The original meaning of the constitutional text consists of the principles the text establishes at high levels of abstraction. These principles get applied to specific situations through democratic and judicial interpretation that necessarily develops over time. The framers established principles. Subsequent generations have to translate those principles into specific rules that respond to the changed conditions of their times. Originalism understood at the level of principle is compatible with constitutional development understood at the level of rule application. The argument seeks to dissolve the apparent conflict between two interpretive traditions.
Turner’s framework presses a question on this contribution. What kind of intellectual work is it? Balkin presents it as the resolution of a long-standing debate in constitutional theory. The peer network of constitutional theory has engaged with it as such. Some figures have endorsed it. Some have criticized it. The engagement has been substantial. The argument has entered the canon of contemporary constitutional theory and is taught in constitutional law courses across American law schools. By the tests the discipline applies, the contribution is significant.
Turner’s framework asks what the contribution delivers. The dissolution of the originalism-living constitutionalism conflict produces a position that allows progressive legal scholars to claim the originalist mantle while pursuing the substantive results living constitutionalism produces. The position resolves a tension that had constrained progressive constitutional argument for decades. Conservative originalists had built their authority on a methodology that progressives had to either accept and limit themselves with, or reject and lose the originalist framing. Balkin’s position lets progressives accept the framing while keeping the substantive results. The contribution is, in this sense, exactly the contribution the progressive legal community needed at the moment Balkin produced it. Turner’s framework treats coincidences of this kind as worth examining. The contribution might be substantively true. It might also be the contribution the relevant audience needed regardless of its substantive truth. The two possibilities are not mutually exclusive, but they require separate assessment.
The peer network’s reception fits the pattern Turner’s framework identifies. The reception has been favorable from progressive legal scholars and contested by conservative originalists. The two reactions track the political alignment of the receivers as much as they track the substantive merits of the argument. Conservative originalists argue that Balkin’s position abandons what made originalism distinctive in the first place: the constraint that original meaning imposes on later interpretation. They argue that abstracting original meaning to the level of principle eliminates the constraint and produces a methodology indistinguishable from living constitutionalism in its results. Progressive scholars argue that the abstraction is faithful to what originalism should have meant all along and that the constraint conservatives sought to impose was itself an interpretive choice rather than a necessary feature of originalist methodology. Turner’s framework treats the symmetric reception as evidence that the substantive question has not been settled by procedures the discipline can apply. The discipline has reached coalition-aligned verdicts rather than substantive ones.
Balkin has produced other significant work. Cultural Software, his 1998 book, drew on memetics and cultural evolution theory to develop an account of how legal and political ideologies operate. The book engaged literatures the legal academy does not normally engage and brought materials from cognitive science, evolutionary theory, and cultural studies into legal theory. The substantive contribution is real. The peer-network engagement has been more limited than the engagement his constitutional theory work has received, partly because the work crosses disciplines in ways legal academia is not always equipped to evaluate. Turner’s framework treats this as the standard pattern for interdisciplinary work. The home discipline grants partial engagement. The other disciplines grant more limited engagement. The figure operating across the boundary acquires standing that none of the disciplines individually can fully certify.
His First Amendment work has been more conventionally legal-academic and has received more conventional peer-network engagement. He has written on the public forum doctrine, on commercial speech, on the relation between free speech and democracy, on the digital First Amendment, and on many adjacent topics. The work engages directly with the conversations the field has been having and contributes to those conversations in formats the field recognizes. Peer-network engagement has been substantial and largely favorable. Turner’s framework treats this as the standard configuration of peer-checkable scholarship in a recognized subfield. The figure produces work the network can test. The network tests it. The verdicts accumulate. The standing grows.
The Information Society Project at Yale has produced a different kind of standing. The project addresses the legal and social implications of new technologies, with attention to internet law, privacy, intellectual property, and adjacent areas. Balkin has directed the project for over twenty years. The project has trained scholars who have gone on to academic and policy positions across the field. Turner’s framework treats this as institutional authority that supplements peer-checkable scholarship. The figure who founds and directs an enduring research program acquires authority beyond what individual contributions can confer. The institutional authority operates through the program’s reputation, its alumni, its conferences, and its presence in the broader conversation about its topic. Balkin’s standing in information law operates partly through the project rather than only through his individual scholarship.
The blog Balkinization is what Turner’s framework treats as audience-recognized authority operating in a format the figure controls directly. The blog has been a leading source of legal commentary for over two decades. Balkin and his co-authors post on constitutional questions, current legal controversies, and ongoing debates in the field. The audience includes legal academics, journalists, policymakers, and the broader audience interested in serious legal commentary. The audience tests for argumentative force, capacity to address current questions with depth, and willingness to take positions in ongoing debates. Balkin passes these tests. The audience grant has been stable across the blog’s existence.
Turner’s framework treats the multi-layer configuration as the standard pattern for senior figures at the apex of American legal academia. The peer-network standing supports the institutional authority. The institutional authority supports the audience-grant authority. The audience-grant authority feeds back into peer-network engagement by making Balkin’s positions visible and influential beyond his peer-reviewed publications. The four layers reinforce each other. No single layer can revoke his standing without the others continuing to grant it. The configuration is what the framework treats as the most stable form of contemporary academic authority.
The deeper Turner question is what tests are being applied across this network of authority. The legal academy at Yale operates with strong coalition pressures that align with broader liberal academic culture. Constitutional theory at Yale is conducted in a register that takes certain positions as default starting points: the legitimacy of the modern administrative state, the validity of post-Brown civil rights jurisprudence, the wrongness of the post-Roe constitutional landscape, the importance of democratic legitimacy as a normative criterion, the suspicion of strong originalism in its conservative forms. Balkin’s work has been compatible with these defaults. His critiques of conservative jurisprudence have been the kind of critiques the network endorses. His defenses of progressive interpretation have been the kind of defenses the network welcomes. His innovations have served the network’s ongoing project rather than challenged it.
This does not make Balkin’s work bad. Turner’s framework does not claim that work compatible with peer-network coalition pressures is therefore weak. It might be strong. The framework asks whether the peer-network’s verdicts are tracking the substantive merit of the work or the work’s compatibility with coalition pressures. The two often coincide, especially for figures who share the network’s coalition pressures organically rather than performing compatibility. Balkin appears to share the network’s pressures organically. His work has not had to be calibrated against opposition from his network because his positions have generally aligned with the network’s preferences. The configuration produces verdicts that may track substance, may track coalition fit, or may track both at once. Distinguishing these from inside the network is the very thing Turner’s framework treats as difficult.
Compare Balkin to Amy Wax and the contrast clarifies. Wax holds comparable peer-checkable credentials at a comparable institution but has positioned herself against the prevailing coalition pressures of legal academia. The peer network has applied unofficial tests against her, with the result that she has lost institutional standing while retaining formal credentials. Balkin has positioned himself with the prevailing coalition pressures. The peer network has applied unofficial tests in his favor, with the result that he has accumulated institutional standing without facing the friction Wax has faced. The two configurations show what the same peer network does to figures who fit and figures who do not. The differential treatment is itself evidence about what the network is testing for.
Compare Balkin to figures inside legal academia who have produced more provocative work and the contrast also clarifies. Adrian Vermeule has produced constitutional theory that runs against the network’s coalition pressures, with the result that his standing has been more contested than Balkin’s despite comparable substantive contributions. Patrick Deneen has produced political theory that runs against the network’s pressures, with the result that his standing operates differently across networks. Hadley Arkes has produced natural-law jurisprudence that runs against the network’s pressures, with similar results. Each of these figures holds substantive standing that some peer-network metrics would rate as comparable to Balkin’s, but each operates with friction the network has not applied to Balkin. Turner’s framework treats this as evidence that the network’s procedures are not testing for substance alone. They are testing for substance plus coalition fit, and the two are weighted in ways that produce systematically different verdicts for figures who fit and figures who do not.
The audience-recognized side of Balkin’s authority operates partly through Balkinization and partly through his appearances in mainstream venues. He has written for The New Republic, The Atlantic, Slate, and other publications that reach educated general audiences. The audience tests for capacity to make legal questions intelligible to non-lawyers, willingness to take positions in ongoing controversies, and ability to write in registers more accessible than law review style requires. Balkin passes these tests. The mainstream venues that publish him are themselves operating in coalition spaces compatible with his positions, with the result that his audience-recognized authority operates within the same broad coalition structure as his peer-network authority. The two reinforce each other rather than offering independent verification.
Turner’s framework asks what would happen if Balkin produced work that ran against the network’s coalition pressures. The hypothetical is impossible to test directly because Balkin has not produced such work. His career suggests he has not been positioned to produce it, either by training or by inclination. The configuration of authority he occupies has been built through work that fits the network’s coalition pressures, and the configuration has reinforced the disposition to produce that kind of work. Whether he would retain his standing if he shifted significantly is a counterfactual question. The framework predicts that figures who shift significantly often lose standing, but the prediction depends on whether the shift would be perceived as betrayal or merely as evolution. Balkin’s position is secure enough that some shifting would likely be tolerated. Major shifting probably would not be.
Balkin is an expert on the conventions of contemporary constitutional theory. He is an expert on the histories of First Amendment and constitutional doctrine. He is an expert on the legal-academic conversation about these topics. He is an expert on certain interdisciplinary literatures he has chosen to engage. He is not, in the strict Turner sense, an expert on what the Constitution means, because that question runs through procedures different from peer-network conventions. The peer-network conventions test for fit with the network’s procedures. The substantive question of what the Constitution means runs through interpretive procedures that the peer network applies in particular ways without conclusively settling. Balkin’s expertise is in those procedures. Whether the procedures yield correct interpretations is a separate question the procedures cannot fully answer.
Constitutional law is not physics. The peer-network procedures do not produce decisive verdicts on the substantive questions the field addresses. The procedures produce verdicts on what the field’s conversations have settled or contested at particular moments. The substantive questions remain open in ways that allow each generation of scholars to revisit them and reach different conclusions. Balkin is an expert participant in this ongoing conversation. He has shaped the conversation in significant ways. Whether his contributions track the substantive truths of constitutional interpretation is a question the field cannot conclusively answer with the procedures available to it.
Turner’s analysis of “good-bad” theories applies. The contemporary legal academy operates with a number of good-bad theories: positions that perform useful coalition functions while not meeting the standards a more demanding peer review might apply. Living originalism, in its Balkinian form, might or might not be such a theory. The position resolves the tension between two interpretive traditions in ways that allow progressives to claim the originalist mantle. The resolution may be substantively correct. The resolution may also be the resolution progressives needed regardless of whether it is substantively correct. The peer network has not applied tests rigorous enough to distinguish these possibilities. Conservative originalists have applied tests that suggest the resolution is substantively inadequate. Progressive scholars have applied tests that suggest it is substantively sound. The disagreement persists because no procedure available to either side can settle it definitively.
Compare Balkin’s position to figures whose substantive contributions face less coalition-aligned peer-network reception, and the difference is again instructive. Lawrence Solum (b. 1954) has done substantial work on originalism and has produced a body of scholarship that conservative originalists engage with as a substantive contribution while remaining outside the strong originalist coalition. Steven Calabresi (b. 1958) has done substantial work on originalism from inside the conservative coalition. Mike Rappaport and John McGinnis have produced careful work on originalism from a more academic conservative position. Each of these figures has standing in the field, but each has it under different conditions from those that produce Balkin’s standing. Their work has been engaged with rigor that Balkin’s progressive-originalist work has sometimes been spared, because the dominant coalition in the legal academy applies different standards to friendly and unfriendly contributions.
The audience for Balkin’s blog and popular writing is the same audience that reads liberal legal commentary generally. The audience grants him standing on grounds that include substantive engagement with current legal questions but also include alignment with the audience’s prior dispositions on those questions. The audience grant tracks substance partially and tracks alignment partially. The two are not separable from inside the audience’s reception. The audience cannot tell, and probably does not need to tell, whether it is granting standing because Balkin’s positions are correct or because they confirm what the audience already believes. The reading practice produces continued audience grant regardless of which is happening.

The Set

Jack Balkin sits at Yale Law School, and Yale sits at the center of this world. The trade is constitutional theory. The clubhouse is a blog, Balkinization, which he founded in 2003 and which gathers the regulars who define the set: Sanford Levinson (b. 1941), Mark Graber, Stephen Griffin, Andrew Koppelman, Heather Gerken (b. 1969), Gerard Magliocca, David Pozen, Joseph Fishkin, Jason Mazzone, Marty Lederman, and Mark Tushnet (b. 1945). Around them stand the elders and patrons: Bruce Ackerman (b. 1943), Robert Post (b. 1947), Reva Siegel (b. 1956), Owen Fiss (b. 1938), Akhil Amar (b. 1958), and at Harvard Law School the looming figure of Laurence Tribe (b. 1941). Behind all of them, the philosophical father, Ronald Dworkin (1931-2013), and the methodological grandfather, John Hart Ely (1938-2003).

What they value first is fidelity, reframed. They want to honor the Constitution while reading it toward equality, inclusion, and democracy. Balkin's move in Living Originalism solves a problem the whole set feels: how to claim the text and the framers without conceding the field to conservatives. He separates original meaning, which he keeps, from original expected application, which he discards. The framers wrote broad principles. We owe fidelity to the principles, not to the framers' cramped guesses about how the principles cash out. So a liberal can sound like a textualist and reach progressive results. The set prizes that kind of intellectual virtuosity, the synthesis that holds the whole edifice in one head. Ackerman's multivolume We the People is the model of the form. Craft, doctrinal command, the lawyerly voice that floats above politics while doing politics, these are the prized goods.

They value the Constitution as an unfinished project. A promise unkept. The document carries sin in its body, the three-fifths clause, the toleration of slavery, the exclusion of women and the unpropertied, and the work of constitutional law is to redeem the promise the founders failed to honor. They value social movements as constitutional authors. Abolition, suffrage, the labor movement, civil rights, feminism, gay rights. These movements do not merely lobby. They change what the Constitution means. Siegel and Post built a whole account of this under the name democratic constitutionalism, the back-and-forth between courts and mobilized citizens that remakes meaning over time.

The hero system runs on redemption and prophecy. The saints are the judges who bent the law toward justice: Earl Warren, William Brennan, Thurgood Marshall (1908-1993) twice over, as advocate and as justice, and John Marshall (1755-1835) as the institution-builder. The protagonists are the movements, the marchers, the litigators of Brown v. Board of Education. The heroic act is the redemptive rereading that rescues the document from its own past. Second to that comes the prophetic dissent, the opinion written for a future court, Harlan alone in Plessy v. Ferguson. Among the living, the hero is the theorist who founds a school with a name you can brand: living originalism, constitutional moments, popular constitutionalism, democratic constitutionalism. The hero coins the phrase that other people must then answer.

The status games are credential games, and they are frank ones. Where you teach decides much: Yale above all, then Harvard, Chicago, Columbia, NYU, Stanford. The Supreme Court clerkship is the entry ticket, and placing your own students into clerkships and onto faculties extends your line. Casebook authorship mints credentials and royalties at once; the Brest, Levinson, Balkin volume, Processes of Constitutional Decisionmaking, trains a generation and binds them to the authors. Being cited by the Court is the gold standard. Being cited by other theorists is the silver. The festschrift, the named chair, election to the American Academy of Arts and Sciences, the symposium organized around your framework, these mark arrival. The amicus brief carries weight by the names that sign it. The blog itself is a salon, and standing accrues to the regulars who post there. Highest status of all goes to the man whose theory other people cannot ignore, the framework that sets the terms of the next ten years of argument.

The set is not one mind, and the disagreements are themselves a status arena. Balkin plays the optimist and redeemer. Levinson plays the disillusioned reformer who calls the Constitution undemocratic and broken, the Senate, the Electoral College, life tenure, the near-impossible amendment process, and at his most provocative wants a new constitutional convention. Tushnet, coming out of critical legal studies, wants to take the Constitution away from the courts and trust the political branches and the people. Ackerman systematizes. When Balkin adopted the word originalism, some allies thought he had handed the enemy a rhetorical win, dignifying a method they considered a power play in disguise. That fight, whether to meet originalism on its own ground or reject it, runs through the whole community.

The normative claims are clear. The Constitution ought to be read to advance equality, democracy, and inclusion. Judicial review earns its legitimacy when it protects the conditions of democratic self-rule or tracks an emerging popular consensus, an idea they inherit from Ely's representation-reinforcement and from Dworkin's moral reading. Conservative originalism is preference dressed as neutral method, decided first and justified after. Courts should not hold the last word; the people and the political branches construct constitutional meaning alongside the bench, and a healthy order keeps that conversation open.

The essentialist claims sit underneath, mostly unspoken, and they are worth naming plainly because the set rarely states them as claims. The deep one is that the Constitution has a true character, and the character is aspirational and redemptive, an arc that bends toward justice. They treat that arc as the document's nature rather than as one reading among others. They treat the framers' principles, lifted free of the framers' actual expectations, as the real meaning, more real than what the men who ratified the text thought they were doing. They treat the progress story, from exclusion to inclusion, as the hidden structure of American constitutional history, the plot the law was always heading toward. And they carry a quiet faith that reason and good lawyering, applied with enough skill, converge on liberal outcomes, that the well-trained legal mind, left to its honest work, arrives where they have arrived. The trained academy stands, in this picture, as a moral vanguard, the place where constitutional meaning gets theorized and certified.

The moral grammar is the grammar of sin and redemption, promise and fulfillment, fidelity and betrayal. The Declaration's line about all men created equal serves as the promissory note, a metaphor they take from Martin Luther King Jr. and keep. America wrote a check; the constitutional project is the long effort to make it good. Honor attaches to those who widen the circle. Shame attaches to those left on the wrong side of history, and the phrase carries real moral force for them. The charge of bad faith does heavy work: the conservative is not merely mistaken but motivated, reasoning backward from the result he wanted. Good faith and bad faith, legitimacy and illegitimacy, democracy and its enemies, these are the master terms. The vocabulary is at once juridical and almost religious, fitting for a community of converts from the church of the Warren Court who lost the institution and now write to redeem it from a distance.

One last strand belongs to the portrait. Balkin spends much of his later career on speech and information law, the First Amendment in the digital age, his idea of information fiduciaries, the regulation of platforms. That work pulls in a different circle: Lawrence Lessig (b. 1961), Yochai Benkler (b. 1964), Tim Wu (b. 1972), Jonathan Zittrain (b. 1969), and Jeffrey Rosen (b. 1964). The two halves of his world share a temperament. Both treat the lawyer-scholar as a steward of public reason, and both hold that the right framework, well argued, can discipline raw power, whether the power of a runaway Court or a runaway platform. The institutional vehicle for the whole project is the American Constitution Society, founded as the liberal answer to the Federalist Society, and the founding document of the set's ambition is The Constitution in 2020, the 2009 volume Balkin and Siegel edited to gather the progressive constitutional thinkers and give them a shared aspirational vision to march behind.

Essentialism

Stephen P. Turner treats essentialism as the master error of social and political thought, the move that takes a contingent human construction and presents it as the nature of a thing. His standing question runs the other way from the essentialist’s. Not “what is the true character of X,” but “who built this object, out of what inferences, and what does treating it as real let them do.” He is a nominalist by temperament. He doubts that the big collective nouns name real entities at all.
Run that against Balkin and his whole frame breaks apart.
Start with the central device, the split between original meaning and original expected application. Balkin keeps the principle and discards the framers’ guesses about how the principle applies. Turner would read this as textbook essentialism, the oldest version of it, the separation of essence from accident. The principle becomes the enduring real thing. The application becomes the contingent surface that can fall away without touching the substance. Equal protection, in this telling, has a true content that the men who ratified it did not grasp, and the task of the lawyer is to recover that content. Turner’s reply is the hard one. How do you know the principle apart from its applications? You do not. The principle is read back in from present commitment and then projected outward as if found in the text. The essence is an artifact of the reader’s inference. Balkin discovers in the Fourteenth Amendment what he brought to it, and the language of essence converts the bringing into a finding.
Turner is sharp on why this conversion is attractive. Essentialist talk removes a thing from contestation. To say “this is what the Constitution is” closes the argument that “this is what my side prefers” would leave open. The redemptive essence does that work for Balkin. It lets a political choice present itself as fidelity to the document’s nature. The arc that bends toward justice gets treated as a property of the object rather than a hope of the reader. Turner does not call this lying. He calls it the standard grammar of legitimation, and he wants the grammar exposed, because once you see the essence as built rather than found, the question returns to where he thinks it belongs, which is politics and persuasion among people who disagree.
The collective nouns draw his heaviest fire. The Social Theory of Practices argues that shared practices, shared culture, shared frameworks are not real objects sitting in a group, available for the theorist to read off. They are inferences, and usually the theorist’s own. Now look at the democratic-constitutionalism material that Balkin builds with Siegel and the rest. The people. We the People. The movement as constitutional author. These are treated as collective subjects that carry meaning, that author, that speak. Turner denies that any such subject exists in the way the account needs. There is no movement with a single view. There are many men and women with many views, and the attribution of one constitutional meaning to the movement is a construction performed by the scholar after the fact, then handed back to the movement as if it had been there all along. The essence of the moment, the meaning the people conferred, is the historian’s tidy summary mistaken for a found fact about a real collective mind.
Turner would press the same point on the convergence claim, the quiet faith that reason and good lawyering, applied with enough skill, arrive at liberal outcomes. That essentializes reason. It treats rationality as a thing with a nature whose proper exercise yields one set of results. Turner spent a career denying that rationality works like that. The convergence is convergence among a guild, men selected by the same schools, trained in the same craft, holding the same prior commitments. Of course they agree. Their agreement is a fact about a social formation, not a property of reason discovering its own essence. The essentialist reading hides the selection and presents the guild’s consensus as what any clear mind would see.
If the Constitution has a true meaning lying beneath its applications, someone must be able to read it, and not everyone can. The principle is visible only to the trained. So the essentialist claim about the document doubles as a claim about a class. The academy becomes the keeper of the essence, the body that certifies which readings track the real principle and which betray it. Turner sees this pairing everywhere, the posited essence and the expert who alone has access to it, and he treats the pairing with suspicion, because the essence does political work for the experts who claim to read it. Balkin’s vanguard of constitutional theorists is, in this light, less a body of discoverers than a body that has an interest in there being something to discover.