Professor Sanford Levinson is the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas School of Law. He spoke with Editors Katherine Sorrel and Elena Pruett-Fiederlein of the Comparative Jurist.
Katherine: Professor Levinson, we wanted to interview you in part to hear about your work on comparative constitutionalism; I know that you’ve spoken at William & Mary on that topic, and we hope to dig a little deeper. To start with the basics, can you just begin by describing some of the benefits of comparing constitutions? And, what makes it worth looking at other constitutions compared to say, the US Constitution?
Professor Levinson: One answer to that comes in a Rudyard Kipling poem. “What do they know of England who only England know?” So, it’s an embarrassing truth that one reason to look at other constitutions, whether next door in Canada or in Tanzania, India, really anywhere, is that you end up learning a lot about the US Constitution that hadn’t occurred to you. You learn what deeply embedded assumptions we have. I taught American constitutional law (shockingly enough, 35 years ago) at the Hebrew University in Jerusalem. It was a course in civil liberties. And one of the things I realized is the depth of certain assumptions that we as Americans have about things like freedom of speech and freedom of press exemplify aspects of American exceptionalism that perhaps we ought to question; it can be very illuminating to discuss one’s own legal system with people from other countries, particularly if they share your general politics. They might be quite amazed that you cannot appreciate the wisdom of regulating hate speech if you’re really interested in promoting what the Preamble to the Constitution labels “domestic tranquility.” The particular example that struck me most in 1984, in Israel, occurred when I was teaching the Pentagon Papers case, involving the ability of the New York Times to publish top-secret Defense Department materials. For me, frankly, that seemed an easy case. I had some students, though, who were shocked that we would allow the publication of what presumably trustworthy top military and political people said were vital secrets. It’s not so much that I changed my mind, because I still think the Pentagon Papers case was correctly decided. But I realized how deeply American I was in a way that I don’t think I’d appreciated before. So, that’s one reason–a kind of oddball reason in some ways, because it doesn’t involve the second great reason for comparative study, which is that you might actually learn something from looking at how other countries do things.
We often speak in this country, with regard to federalism, of states as little laboratories of experimentation. In another context, we could talk about whether states really serve that function. We’re actually getting some sort of test of that right now with COVID-19, where Texas is really quite different, for example, from Ohio. We could spend the rest of the interview on some of the implications of COVID-19, including, for example, the remarkable differences between the approach adopted by Sweden compared to its neighbors Denmark and Norway. But let’s not let this interview be “captured” by the virus, as important as it is.
As you may know I think [the U.S. Constitution] is defective in a lot of very, very important ways. Therefore, it can be useful to work abroad simply to get a sense of how other countries that we regard as reasonably democratic, or reasonably enlightened, do things. Consider one aspect of American exceptionalism at the national level, which is what I call true life tenure for Supreme Court judges, where they really can stay on forever, for 35 years until they’re 90. If you look at almost any other country around the world, they have limits on how long judges can serve their either by years (it can be 10 years, 14 years, 15 years or whatever) or by age. But of the roughly 190 countries in the United Nations, there are not more than a handful of countries that have adopted the American national practice.
Now, let me say that another hobby horse of mine is that we generally don’t pay enough attention to American state constitutions. Although it is obviously useful, in terms of comparison, to look at the German of Indian constitutions, among others, but it’s also extremely useful to look at the Virginia constitution or at the Texas constitution. One of the things that drives me up the wall, for example, is when people defend the so-called “unitary executive” as if that’s just the American way as to how an executive branch should be organized. That’s demonstrably false, putting to one side one’s view of how the US Constitution should be interpreted. You look at American state constitutions, and you discover, again, that not more than literally a handful adopt anything close to the unitary executive. Texas elects everybody. The governor can appoint only the Secretary of State, which is a very, very weak office; all the others are elected on their own. In recent years, it means all Republicans, and in previous eras has meant all Democrats. But there was a time when in Texas, as is true of many other states, you had a Republican governor and the Democratic attorney general on and life went on. Virginia also has what Harvard law professor Jacob Gerson has called an “unbundled” executive. And there’s something to be learned from that. There are a lot of other state practices that I would love to hear become the subject of vigorous discussion in con law courses. And so that’s another function of you know, comparative constitutionalism, whether it’s looking at state constitutions, or at Germany.
Germany, for example, has at least two constitutional provisions that are protected against amendment. One of them involves the basic value of “dignity”; the other manifests the commitment to maintaining a federal structure of government. In order to get rid of these provisions, you would literally have to overthrow the existing constitutional order. India has stumbled into a somewhat similar system because of the so-called “basic structures doctrine” articulated by their Supreme Court. Indeed, it turns out to be the case that a surprising number of countries around the world have adopted the notion of unconstitutional constitutional amendments. That is, certain practices or certain values that are protected, even against constitutional amendment. Most Americans, including most of my colleagues in the legal profession, find that a wacky notion because it just doesn’t conform with our understanding of “popular sovereignty,” which seems to place no limits on what “we the people” can ultimately decide regarding our system of government. It’s worth talking about that in India, for example, the guarantee of a republican form of government has allowed the central authorities in India simply to replace state level governments, because they’re viewed as deviating from central values of Indian constitutionalism. If you look abroad, you discover that there are wide varieties of federalism, whereas you discover in the US Constitution, there are astonishingly few genuine guarantees of state autonomy. Given my own views, it doesn’t bother me that Virginia or Texas can’t point to something in the National Constitution and say, “look, you can’t do that to us,” but that’s certainly a second reason to look at comparative materials, that you might actually learn something about how and why different constitutions were adopted.
The third reason is really similar to the reasons people would give for broadly reading history or literature: you learn how amazingly varied people are, that there are people all over the world who believe strange things, and who live under what, to us, are strange political orders. Studying a foreign legal system helps you get inside the mindset of people who think that system makes sense. It broadens you, broadens your understanding. It in some ways, I suppose, it turns you into more of a relativist, in realizing that there’s not one single path. One way a friend of mine and I are spending our time now is getting together by Skype once a week and reading through Montesquieu’s Spirit of the Laws, which neither of us had ever read before. And the really important thing about the book is its openness to comparative materials. They do things differently in China, or Japan, or ancient Rome, or Athens–some of the book was meant to teach people in the 18th century that maybe we should think of doing some of those things ourselves, while other parts of it simply points out that ours is not the only way. You know, I think all of these are values of comparative study: trying to get at least a little bit out of your own skin out of your own comfort zone, and realizing that the world is a complex place.
Katherine: Thank you. That was a wonderful overview. I want to focus on one specific issue you have talked about. Looking at places like the UK that have referendums, it seems like other countries are able to move the government more quickly and easily in the face of social and political changes. I wonder if you could talk about the pros and cons of that.
Professor Levinson: First of all, law school courses ought to bring to your attention the fact that the U.S. national government is truly exceptional, not only around the world, but within the United States itself with regard to its absolute bar on any form of direct democracy. In Federalist 63 Madison basically said, the Constitution might be written in the name of we the people, but you really have to understand that the Constitution sets up absolute barriers between the people and actual decision making. All decisions are made through representatives, and for Madison, that’s a great thing. My view is that we ought to discuss this in class: Is it such a great thing?
You would look at 49 of the 50 American states, all of which have some sort of procedure for direct democracy. In Texas, it’s minimalist, but we do get a chance to vote yea or nay on state constitutional amendments. In other states–California is usually the poster example–it’s maximalist, because California voters can amend their constitution by initiative referendum. In Maine, if the electorate doesn’t like law passed by the Maine legislature, it can have it put on the ballot for an up or down vote by the Maine electorate. The electorate in 2018 voted to require joining Medicaid after the Maine governor had vetoed the expansion of Medicaid for several years. One of my books is called Framed: America’s 51 Constitutions and the Crisis of Governance. If you look at the fact there are 51 constitutions in the United States, you discover that almost all of them have some mechanisms for direct democracy, including referenda. And then, as you point out, you can look at the UK, you can look at Ireland–which had a very notable referendum on same sex marriage, which turned out to be of world importance. With regard to Brexit, what I would say is that it was a badly designed referendum, sure, but that doesn’t discredit the idea of referenda. It discredits only the kind of referendum where, for example, you don’t have any kind of super-majoritarian procedure. It was pure majority, so the vote was 52 to 48. Very often, referenda will require three fifths or two thirds majorities. If we’re going to go with a majority, it could also say that it has to be a majority of all eligible voters and not merely a majority of those who show up. Maybe Australia has something to teach us in having mandatory voting–I think you pay a $15 fine for not voting. All of these things could be discussed.
Many countries that we normally think of as somewhat boring and stable, like Switzerland, have referenda all the time. Just as Maine has had three referenda in the last 10 years or so. What do you say when most people think of referenda they think of California and Brexit? This means they never want referenda at all. That would be, I think, like saying, because we elected one bad president, we should therefore stop electing presidents at all. I don’t think that follows.
Katherine: I want to ask you one more question to close out. There’s a lot of conversation about constitutions in light of the global rise of authoritarianism. We seem to treat it as if it’s the first time that’s happened, though it has happened before. I wondered if you could speak to how comparative work can shed light on how that occurs.
Professor Levinson: Sure. I did a seminar this past term with a friend of mine in the government department at UT, Gary Jacobson, who’s one of the leading specialists in comparative constitutionalism. He’s written very good books on both India and Israel. And this is something we’ve talked a lot about, because I think, for some period of time, the assumption was that to be a real constitution, it had to be a liberal constitution, where liberal meant some version of democratic, some version of pluralistic, some version of recognizing a wide variety of civil liberties and civil rights. This raises the problem: what about illiberal constitutions? Are they not really constitutions at all? Or are they simply a different kind of constitution?
Let’s look at the Saudi constitution. I believe that Saudi Arabia has a constitution, though it is completely theocratic. Others might be a little bit skeptical of whether Saudi Arabia should be said to have a constitution. But it’s harder to deny, for example, that Iran or Pakistan has a constitution, though both describe themselves as “Islamic republics.” It does seem to me that the study of the illiberal constitutions is important in terms of how they address such issues as the nature of the constitutional project itself. One of the things I like to teach, for example, is preambles, which never really comes up in a standard course. You discover through a lot of preambles–-I’ll use Croatia as an example–the project of the constitution turns out to be the return to a glorious history, the flourishing of the Croatian people. It also recognizes that Croatia includes some other groups as well. But what the Croatian constitution, what the project really is about is the flourishing of the Croatian people.
I also taught a course last semester on popular sovereignty. The Declaration of Independence says “When in the course of human events, it becomes necessary for one people” to establish their independence. The obvious question is, what in the world was Jefferson trying to suggest when he asserted there was a single people between Massachusetts and Georgia? The Constitution says “we the people” of the United States–what does that mean? Are we really a single people, or a collection of many peoples? It seems to me that the answer is the latter. But that raises all sorts of obvious problems. If we consider what extent states or the United States should really make great effort to train youngsters to feel themselves members of a single community, rather than to feel part of the so-called American mosaic, that may mean along the way, that you really have great antagonism toward other parts of the mosaic, because they’re so different from you or from us in certain respects. Frankly, it’s almost kind of a deconstructionist moment you start learning that there are illiberal aspects of the US Constitution.
I just don’t think it’s helpful to say, well, because I really don’t like the current Hungarian constitution, or I really don’t like the Saudi constitution, therefore, it’s not really a constitution at all, rather than to say, well, this is the way they do things. Let’s try to understand why. And we can also say, well, what do we think about this? And, you know, even if you’re a relativist, you might well say, well, maybe they want to live that way, but I certainly wouldn’t. Or on the other hand, if my job or my family took me there, I think I could live a quite happy life under the German constitution or the Spanish constitution.
Katherine: I think that’s a perfect place to end and I really appreciate your insights and for sharing with us and engaging in conversation and I know I learned a ton.
Professor Levinson: Thank you, I enjoyed it very much.
Professor Sanford Levinson presently serves as the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas Law School. He was previously a member of the Department of Politics at Princeton University, and has been a visiting faculty member of the Boston University, Georgetown, Harvard, New York University, and Yale law schools in the United States and has taught abroad in programs of law in London; Paris; Jerusalem; Auckland, New Zealand; and Melbourne, Australia. Levinson is the author of approximately 400 articles, book reviews, or commentaries in professional and popular journals–and a regular contributor to the popular blog Balkinization. In addition to editing and co-editing numerous works, he has also written six books: Constitutional Faith (1988, winner of the Scribes Award, 2d edition 2011); Written in Stone: Public Monuments in Changing Societies (1998); Wrestling With Diversity (2003); Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) (2006); Framed: America’s 51 Constitutions and the Crisis of Governance (2012); An Argument Open to All: Reading the Federalist in the 21st Century (2015); and, with Cynthia Levinson, Fault Lines in the Constitution: The Framers, Their Fights, and the Flaws that Affect Us Today (forthcoming, September 2017). A member of the American Law Institute, Levinson was elected to the American Academy of Arts and Sciences in 2001.
*The featured image is taken from the cover of Levinson’s book Wrestling With Diversity, published by the Duke University Press in 2003.