I haven’t read Levinson’s book but have been following commentary on his “Second Thoughts.” At the bottom of page 110 (continuing on page 111), Jack states:
“Next, consider the question of unitary versus multiple interpretive modalities. When we add text to a constitution, or create a new constitution, we produce a new document, rather than interpret an old one. In this sense, our focus is primarily textual. We are all protestants, not because we think that the text is the only source of interpretation, but because what goes into the text (and what stays out) is paramount at this stage of the proceedings. To be sure, we write the text in anticipation of what courts will do with it, and we may adopt old language in the expectation that courts will transfer the old glosses to the new language. For example, the Reconstruction Framers crafted the language of Section One of the Fourteenth Amendment based on their understanding of what due process (in the Fifth Amendment) and privileges and immunities (in Article IV, section 2) meant. In response to a critic’s objection that he did not know what was meant by ‘due process’ in the Fourteenth Amendment, John Bingham famously retorted that ‘the courts have settled that long ago, and the gentleman can go and read their decisions.’ Yet even in drafting the Fourteenth Amendment, the Reconstruction Republicans were guided by protestant interpretations of the existing Constitution that differed from those held by most federal judges.”
This followed Jack’s discussion of “Levinson’s comparison of attitudes about the Constitution to Protestantism and Catholicism.” I found this discussion quite interesting, as a contrast to originalism and living constitutionalism. But the reference to Bingham caught my eye and I invite a comment from you.
Gerard Magliocca - January 19, 2013 at 11:15 am
Shaq,
I’m not sure if that quote from Bingham made it into the final draft of the book. (If so, it’s just in a footnote.) I don’t think he was saying anything unusual here. “Due Process” obviously meant something in 1866, but Bingham also argued that it included things (such as freedom of speech) that were not in the case law. So I think what Jack said is basically correct.
January 15, 2013 at 12:52 pm
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Responses (7)
Aaron - January 15, 2013 at 1:18 pm
looks like a friendly guy. Congrats on the book!
Orin Kerr - January 15, 2013 at 5:03 pm
Lovely, congrats.
Joe - January 15, 2013 at 10:07 pm
Does Prof. Amar have a blurb?
Dan Cole - January 16, 2013 at 8:23 am
Classy cover. Looking forward to reading it.
Gerard Magliocca - January 16, 2013 at 5:59 pm
Thanks! I don’t know anything about blurbs yet. It’s up to the publisher.
Shag from Brookline - January 19, 2013 at 7:57 am
Gerard,
I look forward to reading your book.
I recently read Jack Balkin’s short essay “Sanford Levinson’s Second Thoughts About Constitution Faith” available via SSRN at:
http://ssrn.com/abstract=2198740
I haven’t read Levinson’s book but have been following commentary on his “Second Thoughts.” At the bottom of page 110 (continuing on page 111), Jack states:
“Next, consider the question of unitary versus multiple interpretive modalities. When we add text to a constitution, or create a new constitution, we produce a new document, rather than interpret an old one. In this sense, our focus is primarily textual. We are all protestants, not because we think that the text is the only source of interpretation, but because what goes into the text (and what stays out) is paramount at this stage of the proceedings. To be sure, we write the text in anticipation of what courts will do with it, and we may adopt old language in the expectation that courts will transfer the old glosses to the new language. For example, the Reconstruction Framers crafted the language of Section One of the Fourteenth Amendment based on their understanding of what due process (in the Fifth Amendment) and privileges and immunities (in Article IV, section 2) meant. In response to a critic’s objection that he did not know what was meant by ‘due process’ in the Fourteenth Amendment, John Bingham famously retorted that ‘the courts have settled that long ago, and the gentleman can go and read their decisions.’ Yet even in drafting the Fourteenth Amendment, the Reconstruction Republicans were guided by protestant interpretations of the existing Constitution that differed from those held by most federal judges.”
This followed Jack’s discussion of “Levinson’s comparison of attitudes about the Constitution to Protestantism and Catholicism.” I found this discussion quite interesting, as a contrast to originalism and living constitutionalism. But the reference to Bingham caught my eye and I invite a comment from you.
Gerard Magliocca - January 19, 2013 at 11:15 am
Shaq,
I’m not sure if that quote from Bingham made it into the final draft of the book. (If so, it’s just in a footnote.) I don’t think he was saying anything unusual here. “Due Process” obviously meant something in 1866, but Bingham also argued that it included things (such as freedom of speech) that were not in the case law. So I think what Jack said is basically correct.
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