For those wondering whether Sanford Levinson, the distinguished constitutional provocateur who has called the Founding document “undemocratic” and called for its radical reform, harbors hostility toward the political theory that established our nation, his book An Argument Open to All: Reading The Federalist in the 21st Century is his answer. It is not that he loved Publius less, but that he loved democracy more. An Argument Open to All, an essay-by-essay reply to The Federalist, is in many ways a love letter to Publius—the kind that a spouse in a marriage of lasting standing might write. It visits and revisits long-running arguments,…
In Sanford Levinson’s scattershot attack on what he calls our “imbecilic” Constitution, he relies on an admixture of demonstrably false empirical claims, sloppy history, and half-baked political theorizing. He begins by claiming that “critics across the spectrum call the American political system dysfunctional, even pathological. What they don’t mention, though, is the role of the Constitution itself in generating the pathology.” Mr. Levinson clearly hasn’t been to any Tea Party rallies over the last several years, where hundreds and sometimes thousands of people gather to express their displeasure at the state of our politics, yet proudly carry copies of the Constitution tucked under their arms. They have made the determination that the Constitution is the solution to our problem—certainly not the problem itself. For them—and for many others—the dysfunction we experience stems from the willful refusal on the part of politicians and judges to take the Constitution’s plain language seriously.
The interesting Paulsen–Levinson–Lund three-way reminds me of a recommendation made by Vanderbilt
law professor Suzanna Sherry a few years ago (at an AEI seminar—I don’t know if Suzanna has written it up some place): whatever you may want to teach in ConLaw, you certainly don’t want to teach it in the first year of law school. It tends to bring out the worst in students. They read Supreme Court opinions and quickly “conclude” that no sensible person can be a legal formalist and/or textualist. This supposed insight then often prompts the conviction, usually expressed with an air of self-conscious sophistication, that law is nothing but politics.