Sanford Levinson

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Sanford V. Levinson is an expert in constitutional law and advocate for constitutional reform in the United States. He has criticized excessive presidential power[1] and has been widely quoted on such topics as the Second Amendment, same-sex marriage, nominations to the Supreme Court, and other legal issues. He is quoted often in publications about numerous topics involving law.[2] He holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair at the University of Texas school of law. His research interests include constitutional development and design, law, religion, multiculturalism, society, and theories of constitutional interpretation.[3] He participates in a blog called Balkinization which focuses on constitutional, First Amendment, and other civil liberties issues[4] as well as a blog called Our Undemocratic Constitution. Levinson appeared on the Bill Moyers television program in 2007.[5]

Supreme Court

Levinson's opinion has been cited during the nominating process for Supreme Court nominees.[2] In the context of the Constutional interests of the Tea Party Movement, he questioned if the Court should be the only arbiter of the Constitution:
“It really is open to interpretation by anybody, in what I sometimes call the lawyerhood of all citizens. Anybody in a bar can get into a shouting argument over what equal protection means, or the right to free speech.[6]

Tenure

Levinson has been critical of Supreme Court justices who have stayed in office despite medical deterioration based on longevity; for example, Levinson criticized Chief Justice William Rehnquist for a "degree of egoistic narcissism" by declaring six weeks before his death of his intention to stay on. Levinson has called for term limits for Supreme Court justices along with a growing list of "scholars across the ideological spectrum."[7]

He has published comments critical of life tenure for Supreme Court justices.[8]

Cases heard

Commenting on the case load of the Supreme Court, he wrote in the Yale Law Journal, he considered the core issue "that the discussions tended to ignore a particular eight-hundred-pound elephant, which can basically be described as “politics.” There is, I believe, no “neutral” vantage point from which to assess the Court’s decisions as to how many cases it takes and, of course, which particular cases it chooses to hear. Instead, perspectives will inevitably reflect a series of political viewpoints." He proposes three solutions:[9]

  • Better defined expectations on case selection.
  • The Court’s own political judgments when deciding whether or not to grant certiorari. I will focus there on the work of the late Yale Professor Alexander Bickel, whose seminal discussion of “the passive virtues” brought to the fore of the legal academy the inevitably political dimension of the case selection process.
  • Creation of a new “cert court” that would in significant measure impose a duty on the Court to consider cases that it might, for political reasons, wish not to.

Gun politics

Levinson has described himself as a "a card-carrying A.C.L.U. member who doesn't own a gun" who has argued that the Second Amendment to the U.S. Constitution limits the government's authority to regulate private gun ownership.[10] Levinson's opinions on Constitutional law have been reported in the media including his opinions about Second Amendment cases.[11]

Levinson is particularly noted for his "seminal article" in the Yale Law Journal entitled "The Embarrassing Second Amendment".
I cannot help but suspect that the best explanation for the absence of the Second Amendment from the legal consciousness of the elite bar, including that component found in the legal academy, is derived from a mixture of sheer opposition to the idea of private ownership of guns and the perhaps subconscious fear that altogether plausible, perhaps even "winning," interpretations of the Second Amendment would present real hurdles to those of us supporting prohibitory regulation. Thus the title of this essay — The Embarrassing Second Amendment — for I want to suggest that the Amendment may be profoundly embarrassing to many who both support such regulation and view themselves as committed to zealous adherence to the Bill of Rights (such as most members of the ACLU). Indeed, one sometimes discovers members of the NRA who are equally committed members of the ACLU, differing with the latter only on the issue of the Second Amendment but otherwise genuinely sharing the libertarian viewpoint of the ACLU.[12]

He argued that the Second Amendment doesn't offer either gun rights or gun control advocates a refuge.[13] In the article, he wrote "society must decide the issue of gun control on practical as well as on constitutional grounds ... the issue is to what extent does the Second Amendment permit the Government to do what it wants in controlling firearms, just as we have to establish the extent to which it can limit speech or break into your house without a warrant."[12]

According to the National Review, the "Embarrassing Second Amendment" article caused a major rethinking in legal circles.[14] Levinson's thinking helped persuade legal scholars such as Laurence Tribe to "update his textbook on the Constitution to account for the growing consensus that -- horror! -- Americans do have a Constitutional right to own a gun." It helped clarify to gun control advocates that the United States Constitution clearly supports the right of citizens to have guns, and if they want to change this policy, then they'll have to repeal the Second Amendment.[14]

Levinson has criticized liberal lawyers as treating "the Second Amendment as the equivalent of an embarrassing relative whose mention brings a quick change of subject."He has argued that the Constitution protects some personal ownership of firearms but admits that "courts are likely to rule that Congress can do almost anything short of an outright prohibition of owning guns."[15]

Interrogation

See also: Torture
See also: Interrogation

He has dealt with the legal issues surrounding torture and interrogation. Levinson taught a course called Torture, Law and Lawyers at Harvard Law School in 2005.[16] He edited Torture: A Collection (2005), about which a reviewer commented: "What's most striking about these essays is that despite their abstract and theoretical content, they generally do not contradict the depiction of actual interrogators described by Mackey and Miller. The wall between the liberal campus and a conservative, utilitarian-minded military breaks down because the questions are so serious that few of this book's contributors want to engage in polemics, and few -- to their credit -- ever seem completely comfortable with their own conclusions."[17]

Presidential power

Levinson has been a critic of the unitary executive theory and excessive presidential power. In the magazine Dissent, he argued that “constitutional dictators have become the American norm."Presidents "have an incentive to declare emergencies” and assume “quasi-dictatorial powers," wrote Levinson. Levinson was highly critical of President George W. Bush who he regarded as possibly the "absolutely worst president." Levinson notes that President Obama seems likely to repeat the pattern of expansive presidential power.[18] He wrote an essay titled “Are we electing a constitutional dictator?” in which he criticized a system which allows presidents to make dictatorial decisions of great consequence without providing ways to discipline those who display bad judgment.[19] Levinson commented about a ban on same-sex marriage proposed by former President George W. Bush in legal terms as a Constitutional issue.[20]

Levinson has criticized the Constitution for what he considers to be numerous failings, including an inability to remove a president despite lack of confidence by lawmakers and the public, the president's veto power as being "extraordinarly undemocratic", lack of representation in the Senate for highly populated states such as California.[21] He also criticizes the primary process in which important states which aren't considered "battleground states" are ignored by presidential candidates.[21] He's often called for a Second Constitutional Convention: "We ought to think about it almost literally every day, and then ask, 'Well, to what extent is government organized to realize the noble visions of the preamble?' That the preamble begins, 'We the people.' It's a notion of a people that can engage in self-determination."[5] Levinson's book Our Undemocratic Constitution: Where the Constitution Goes Wrong (and How We the People Can Correct It) calls for "wholesale revision of our nation's founding document."[8]

Legal education

Levinson has been a panelist on programs sponsored by the Association of American Law Schools and has spoken on topics alongside prominent lawyers such as Kenneth Starr.[8] Levinson has been identified as a "prominent liberal law professor"[22] and been grouped with other professors including Laurence Tribe of Harvard and Akhil Reed Amar of Yale.[23]

The Second Amendment, he believes, is useful in teaching constitutional law.
The Second Amendment is a professorial godsend for such purposes, in part because there are so few Supreme Court utterances to blind the students to the independent importance of the other modalities. Also, most students actually care about the issue of the role of guns in american society. No serious adult could really care about state regulation of mudflaps or, for that matter, whether Congress can add to the original jurisdiction of the supreme court. This is obviously not the case with the availability of firearms. Given my own view that a constitutional law course ought to be about morally and politically serious issues, there are few better "closers" than the Second Amendment.



Even more particularly, I also use this as the opportunity to focus on the "incorporation" debate, itself a standard part of most constitutional law courses. The Court has, in this century, incorporated most of the various requirements of the Bill of Rights into the Fourteenth Amendment as limits on state governments. The Second Amendment, of course, stands, with the Seventh, outside of the incorporationist embrace.[24]

Academic career

Sanford Levinson received a bachelor's degree from Duke University, a law degree from Stanford University, and a PhD degree from Harvard University. At one point he was a member of the department of Politics at Princeton University.[25] Levinson taught law at Georgetown University, Yale, Harvard, New York University, Boston University, the University of Paris II, Central European University in Budapest, and the Hebrew University in Jerusalem. In 2001, Levinson was elected to the American Academy of Arts and Sciences. In 1980, he joined the University of Texas School of Law at Austin, Texas; he is also a professor of government at Texas.

References

  1. Sanford Levinson. “Wartime Presidents and the Constitution: From Lincoln to Obama” -- speech by Sanford Levinson at Wayne Morse Center, Wayne Morse Center for Law and Politics, February 5, 2009. Retrieved on 2009-10-10.
  2. 2.0 2.1 Joan Biskupic. With Sotomayor comes new era in judicial politics, USA Today, 7/13/2009. Retrieved on 2009-10-10.
  3. Sanford Levinson -- Visiting Professor of Law, Harvard Law School, 2009-10-10. Retrieved on 2009-10-10.
  4. Sanford V Levinson. University of Texas School of Law -- Faculty & Administration (2009-10-10). Retrieved on 2009-10-10.
  5. 5.0 5.1 http://www.pbs.org/moyers/journal/12212007/profile.html, Public Broadcasting Service: Bill Moyers' Journal, December 21, 2007. Retrieved on 2009-10-10.
  6. Adam Liptak (12 March 2010), "Tea-ing Up the Constitution", New York Times
  7. Linda Greenhouse. New Focus on the Effects of Life Tenure, New York Times, September 10, 2007. Retrieved on 2009-10-10.
  8. 8.0 8.1 8.2 Sanford Levinson. Supreme court prognosis -- Ruth Bader Ginsburg's surgery for pancreatic cancer highlights why US supreme court justices shouldn't serve life terms, guardian.co.uk, 9 February 2009. Retrieved on 2009-10-10.
  9. Sanford Levinson (7 February 2010), "Assessing the Supreme Court’s Current Caseload: A Question of Law or Politics?", Yale Law Journal
  10. Andrea Sachs. Why the Second Amendment is a Loser in Court, Time Magazine, May. 29, 1995. Retrieved on 2009-10-10.
  11. John Schwartz. Gun Rulings Open Way to Supreme Court Review, New York Times, June 16, 2009. Retrieved on 2009-10-10.
  12. 12.0 12.1 Sanford Levinson -- University of Texas at Austin School of Law. The Embarrassing Second Amendment, Reprinted from the Yale Law Journal, Volume 99, pp. 637-659, 2009-10-10. Retrieved on 2009-10-10.
  13. Richard Berstein. IDEAS & TRENDS; The Right to Bear Arms: A Working Definition, New York Times: Week in Review, January 28, 1990. Retrieved on 2009-10-10.
  14. 14.0 14.1 Jonah Goldberg. Gun-Shy Liberals, National Review, March 30, 2007. Retrieved on 2010-03-05.
  15. Richard Lacayo. Beyond the Brady Bill, Time Magazine, Jun. 24, 2001. Retrieved on 2009-10-10.
  16. JOSEPH LELYVELD. Interrogating Ourselves, New York Times Magazine, June 12, 2005. Retrieved on 2009-10-10.
  17. Robert D. Kaplan. 'The Interrogators' and 'Torture': Hard Questions, New York Times, January 23, 2005. Retrieved on 2009-10-10.
  18. Anand Giridharadas. Edging Out Congress and the Public, New York Times, September 25, 2009. Retrieved on 2009-10-10.
  19. Constitution Day Essay 2008: Professor Sanford Levinson examines the dictatorial power of the Presidency, University of Texas School of Law -- News and Events, September 17, 2008. Retrieved on 2009-10-10
  20. Katharine Q. Seelye and Janet Elder. Strong Support Is Found for Ban on Gay Marriage, New York Times, December 21, 2003. Retrieved on 2009-10-10.
  21. 21.0 21.1 Sanford Levinson (LA Times article available on website) (October 16, 2006). Our Broken Constitution. University of Texas School of Law -- News & Events. Retrieved on 2009-10-10.
  22. JEFFREY ROSEN. The Unregulated Offensive, New York Times Magazine, April 17, 2005. Retrieved on 2009-10-10.
  23. Adam Liptak. Ruling on Guns Elicits Rebuke From the Right, New York Times, October 20, 2008. Retrieved on 2009-10-10.
  24. Sanford Levinson (1998), III. The Second Amendment as Course Summary, in Eugene Volokh, "The Second Amendment as Teaching Tool in Constitutional Law Classes", Journal of Legal Education 48: 591
  25. Speaker: Sanford Levinson. FORA.tv (2009-10-10). Retrieved on 2009-10-10.