"Clause and Effect": An Imagined Conversation with Sanford Levinson

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LC: Good to hear from you. I'm honored to join such good company for Farber, Frickey, and Sherry. Please send the details.

SL: There is no written description. The basic idea is to select your least favorite clause of the current US constitution and, in 1000 words, explain why you would love to see it expunged. It should be something you think has significance for current governance; you get no points by condemning the fugitive slave clause.(1)

LC: That assignment for a pragmatic post-modernist like me is harder than you think. You remember that part in my Pergamon book where I show how significant clauses in the Constitution have been interpreted in both short runs and long, in quite contradictory ways.(2) "Clause and effect" views of constitutional law fail to make sense of two hundred years of constitutional history. Reality is so completely socially constructed that any one clause out of context is just a string of words. Any suspect clause that "has significance for our current governance," could go anywhere and hence shouldn't be expunged.

SL: When will you postmodernists learn to stop hiding behind that social construction line? Of course we construct. Please get on with doing a little social construction for us.

LC: I'm not hiding, and I am constructing. I believe that legal language, like all language, has no intrinsic meaning out of context. Even if I could defend the proposition that a certain clause has done the most damage "so far," I could never show that such a clause could not support a different and highly desirable construction in the future. Legal language is just a discipline we impose to define the nature of our disagreements in trustworthy enough ways that we don't go out and kill each other.

SL: You take the Stanley Fish position?

LC: Yes, but just the hook, not the line and sinker. The hook of course is that legal rules in their very ambiguity play a role in forming a kind of wisdom that transcends the rules. (Remember Fish's exasperated basketball coach in "Fish Vs. Fiss"?) But unlike Fish, I think current anti-foundationalist thought only marks our transition from one foundationalist paradigm to another. Fish says we will continue to pretend we achieve foundationalist determinacy. My line (and sinker, though I don't particularly like the metaphor) is that liberalism has struggled for three centuries to construct a foundational, natural law-like belief in the natural reality of substantive indeterminacy, and hence a political commitment to the desirability of skepticism, mystery, and tolerance.

SL: Yes, I know the pragmatic line and sinker: If it does work, it's "true." You're about to tell me that you can therefore take any constitutional clause and argue coherently both for and against expunging it. So try expunging the due process clause (or for that matter the equal protection clause) of the 14th Amendment.

LC: Pieces of expunge cake! Without such clauses, would the late 19th century courts have been able to confine Fourteenth Amendment privileges and immunities to the right to travel, especially in light of Article IV privileges and immunities? We might have incorporated basic rights far earlier than we did, and confronted the evils of Reconstruction and its aftermath much sooner. And the equal protection clause is pure legal gobbledygook, since all laws backed by sanctions inescapably discriminate and create inequalities--laws against murder treat those who murder differently than those who don't, and so on.

SL: Would you care to justify the fugitive slave clause?

LC: Sure, but remember I'm mainly trying to argue against clause and effect. As a tool for defining differences--for focusing moral thought and for prodding us down that bloody road toward our aspirations (to focus our "constitutional faith," to plagiarize a bit)--it may well have been necessary to enshrine the devil of slavery in our constitution in order to have something to drive out of the temple. …