Comments on the LevinsonFest Voting Rights Panel

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022.

Sanford Levinson

First I must express my continued thanks to the persons actually behind this remarkable project, Richard Albert, Ashley Moran, and Trish Do. And my thanks also to Jeff Tulis for moderating this particular gathering. Quite obviously, my deepest thanks as well to the participants. As I said at the outset of the Zoom gathering—and on other Levinsonfests as well—I very much feel described by the old Sesame Street staple, “Which of these things (or persons) does not belong with the other?” Throughout my career, I have been privileged (and tolerated) in being able to flit among quite a few different fields, but I hope that I’ve never confused myself with those who have genuinely mastered any of the given areas that I have been allowed to invade. I am certainly interested in the broad area of voting rights and have accepted every invitation to any symposium that has invited me to participate and to write something relevant to the topic. But that does not in fact add up to deep scholarly expertise of the kind instantiated in those who honor me with their presence. So I’m especially pleased to read (and to comment) on what they had to say and grateful, of course, to Jack Balkin for continuing to open Balkinization to the material produced during these “Levinsonfests.” 

Nick Stephanopoulos opens his contribution by reference to my “influential 1985 article, Gerrymandering and the Brooding Omnipresence of Proportional Representation: Why Won’t It Go Away?” 33 U.C.L.A. L. Rev. 257 (1985) published as part of a symposium (of course) on voting rights. Pam Karlan also hones in that piece from long ago, as does Joey Fishkin. I confess that I’ve never had the sense that it has been “influential, though I’m quite surprised to discover that it has apparently been cited 111 times. But perhaps that touches on how one measures “influence” within the sometimes strange world occupied by legal academics. For whom, after all, do we write and hope to influence?

Many years ago, I got into a strange sort of contretemps with Judge Harry Edwards of the Court of Appeals for the D.C. Circuit, with regard to my contribution to yet another symposium, this time at the University of Colorado, about the “audience” for legal scholarship. See The Audience for Constitutional Meta-Theory (Or, Why, and To Whom, Do I Write the Things I Do?)," 63 COL. L. AW Rev. 389-407 (1992); Judge Edwards' Indictment of 'Impractical' Scholars: The Need for a Bill of Particulars, 91 MICH. L. REV. 2110-2124 (1993). I indicated that I wrote about whatever happened to interest me and that I frankly did not expect any judges to be interested in what I had to say. That was not intended to express disdain; rather, it had become quite clear that judges in general had little demonstrated interest in legal scholarship as it was developing in the 1980s and thereafter, when traditional doctrinal analysis was becoming subordinated to more self-consciously “theoretical” concerns. I relied in part on an anecdote involving a visit by Justice Scalia to the University of Texas and and his clear lack of interest in what his friend and former colleague Doug Laycock planned to publish in the Supreme Court Review about his opinion in the “peyote case,” Smith v. Oregon, which basically eviscerated the Free Exercise Clause as an independent source of constitutional rights. Edwards was clearly offended by my essay; he is not the last judge who has castigated the general trend of academic scholarship to become, well, more “academic” and of less, if any, interest to the bench and bar. 

At least in my own case, I have become ever more impatient with the intellectual limitations of many Supreme Court opinions, particularly in comparison with the insights provided by “real” political theorists or philosophers. (Fortunately, this panel is not about “originalism,” which could, among other things, generate uncharitable comments about the capacity of Supreme Court justices to engage in anything resembling genuine historical analysis.) In no field that I dabble in is this theoretical gap more evident than with regard to voting rights. I increasingly believe that the Court, certainly as a collective institution (an “it”) and even as a disaggregated group of individual justices (the “they”) has remarkably little that is genuinely useful to say about the deep questions that are necessarily presented by contemplating, for example, the idea of “representative government,” government “by the consent of the governed,” or, ultimately, what one might mean by a “republican form of government.” 

But perhaps I have the freedom to be more than a bit insouciant in my stance because I in fact am not really part of the field of election law specialists who properly concern themselves, among other things, with the practical state of the doctrine and what is truly “thinkable” at least at any given time, if one is concerned primarily—or even significantly—with what arguments are likely in fact to appeal to those discrete individuals we call judges, including members of our apex court. Whatever accounts for their appointment (and confirmation), it is unlikely to be their genuine acuity in the debates that roil professional political theorists or philosophers, not least because there is no reason to believe that these debates were part of their formal legal education, let alone the subject of their actual practice. Moreover, it is unlikely that anyone who has been a vociferous critic of some basic presuppositions of the American political system will in fact prove attractive to those actually charged with appointing (or confirming) judges. Just recall the sad fate of Lani Guinier when she was nominated by President Clinton to head the Office of Civil Rights within the Department of Justice. Not only was she successfully hounded by the Wall Street Journal and other denizens of the right; Clinton disgraced himself by professing, in effect, to have read her scholarly articles only for the first time and to be upset by the ideas she was developing as part of her critique of the American electoral system. 

I noted in my remarks on our Zoom gathering that I have adored Pam Karlan as a person and as a scholar since first meeting her many years ago. She is, without a doubt, one of the most completely knowledgeable and probing scholars within the academy, as well as the possessor of a truly mordant sense of humor. I am elated to consider her a friend, and I am touched by her willingness to participate in this “Levinsonfest.” But I have also chided her for several years because of the title of a leading casebook—The Law of Democracy—that she co-edits with two other good friends whom I also respect greatly and, as with Pam, have learned much from over the years, Sam Issacharoff (a former colleague at Texas) and Rick Pildes. From my perspective, the title is profoundly misleading and, indeed, highly ideological inasmuch as it may serve, whether intended or not, to reinforce the faith of students in the American electoral system. One of my books, after all, is Our Undemocratic Constitution, and, if anything, my qualms about our Constitution have grown immensely since I wrote it in 2006. But, of course, to decide whether the Constitution, as defined and interpreted by the Supreme court, is “democratic” or “undemocratic” or whether the American system of “representative democracy” is itself “democratic” or “undemocratic” requires that one develop a theory of democracy that can be used to measure and assess that articulated by the Supreme Court. Indeed, one quite justified criticism of Our Undemocratic Constitution is that it was stronger on raw assertion than on the development and then application of a robust notion of democracy. Physician, heal thyself! 

So now let me return to my 1985 essay, whether or not it was of measurable influence. What it was attempting to do was to make the point that the Supreme Court had never come close to offering a cogent analysis of what it actually meant by “one person/one vote” and therefore the mantra of “equality” in voting power, which, after all, was the basis of Reynolds v. Sims being decided as an Equal Protection case rather, say, than as a Guarantee Clause case requiring elaboration of what one might mean by a “republican form of government.” (This latter point becomes the focus of my later essay on A Mantra in Search of Meaning, also published as part of a symposium, this one at the University of North Carolina Law School celebrating the 40^th anniversary of Baker v. Carr.) I was, and remain, impressed by Jonathan Still’s essay, published in Ethics, where I thought (and think) that he demonstrated convincingly that the logical entailment of equal voting power was some form of proportional representation. This would mean, among other things, that it would be both desirable—and perhaps even constitutionally necessary—to repeal the 1842 act of Congress, reaffirmed in 1969, requiring single-member districts to elect members of the House of Representatives and to require states, in structuring their own legislatures, to reject single-member districts in favor of systems that would allow much greater variation in those actually elected than is now the case. 

To my knowledge, Still’s essay has never been cited, let alone discussed, by any federal judge; by the same token, I am unaware of any article other than my own that has grappled with its arguments, though as a dabbler I would not be shocked (and in fact I would be pleased) to discover that I am wrong. The reason for judicial ignorance, though, is, I am confident, not that his arguments are easily dismissable. Rather, it is almost literally inconceivable that any court would take them truly seriously and order the kinds of radical change in our political system that they would require. Indeed, even if one is convinced that they are correct as abstract constitutional theory, that still leaves open the question as to whether courts should order such changes in the face of likely legislative resistance and, perhaps, opposition from the Executive branch as well. So why bother? 

The Supreme Court has gone out of its way, as everyone agrees, to make absolutely clear that the Constitution, correctly read, does not require any form of proportional representation and, according to its most recent decisions, any kind of demonstrable “fairness” in the construction of legislative districts. Gerrymandering, the Court has declared, is non-justiciable, Justice Kagan vociferously disagrees on this latter point, but not at all with regard to the apparent sanctity of non-proportional representation. But, of course, the judiciary’s withdrawal from the area does not mean that our system is “democratic” (or even necessarily “republican”) or that it is not in fact strangling us and contributing ever more to the widespread American malaise about our future as a constitutional order. 

I am intrigued by the fact that Nick reads my essay as a critique of proportional representation, because that was certainly not my intention (for what that’s worth). What I meant to be doing was something quite simple: To point out that single-member districts (and other aspects of our system) that generate what has often been called the “two-party duopoly’) has consequences quite different from those produced especially in parliamentary systems whose members are elected through some form of proportional representation. Creation of a “government” may require intense negotiation among members of various parties, often at cross-purposes with one another, over the terms of creating a coalition. What this also means is that any existing government might be quite fragile, subject to the decision of a quite small, but nonetheless necessary, party to withdraw from the coalition. See, e.g., Israel, which is about to have yet another probably inconclusive election because the existing “unity” government was brought down by such a defection. I did not mean to be praising our system inasmuch as it was (ostensibly) more “stable” than that, say, of Italy or Israel. I meant only to point out that there is deep tension between a desire to produce a legislature in which a maximum number of the population can feel genuinely “represented” by people who “look like them” or share their perhaps idiosyncratic political views, on the one hand, and a desire instead to produce a relatively stable government, attributable at least in part to the lack of potentially troublesome minority blocs who cannot survive a single-member district first-past-the-post process. 

The practical question, perhaps, is the extent to which law students, who aspire, after all, to being practicing lawyers and who therefore must take courts and judges with special seriousness, should be taught only the “law” as enunciated by the courts. Is it legitimate to suggest that they should also spend their time reading, say, the works of political scientists, political theorists, and philosophers, not because judges would necessarily be receptive to such citations, but, rather, because students should be aware of these works in order to be “informed citizens,” including critics of limitations in judicial perspectives? Were I ever to agree to teach a course on “election law,” I do not believe that I could in good faith simply ignore the great number of what I consider intellectually defective judicial decisions in favor of assigning only the works of Still and many others who have written about the meaning of “democratic” or “republican” government. I often say that in my sunset years I identify far more with my original discipline of political science than as a lawyer. But my main home is within the legal academy, and I earn the inflated salary that I do because I remain a legal academic and not a full-time member of a political science department. As a relative outsider, I become free to offer sometimes idiosyncratic perspectives, and I would like to think they’ve been useful, at least on occasion, to those working far more within the field of voting rights than I do. But I am certainly aware of the differences in our respective situations. 

Both Nick and Pam note that I concluded the UCLA essay with a “coda” suggesting what to me was the obvious illegality of the winner-take-all feature of the electoral college under both relevant legislation as well as the Equal Protection Clause. I continue to think that is the case, and I’m actually a plaintiff in a series of suits that Larry Lessig has organized challenging this aspect of the electoral college (though I’d prefer its elimination entirely). So far, no court has bought the argument, which I regard as simple and straightforward, depending only on taking seriously the injunction in Reynolds to require “fair and effective representation” in any multi-member legislative body. But Pam has made the point, which I take is altogether accurate, that many lawyers concerned, as I profess to be, with the actual consequences of an otherwise abstract theory, might be hesitant to endorse elimination of winner-take-all unless one could be confident that the replacement would be better, where “betterness” would almost necessarily have political overtones. Thus Pam suggests that few Democrats in the modern United States would be happy with replacing winner-take-all with assignment of electoral votes by reference to congressional districts. Joe Biden carried both Pennsylvania and Wisconsin, albeit by relatively small majorities. Had the vote been disaggregated by congressional district, Donald Trump would have won majorities of the electoral votes in both states because of Republican skill in gerrymandering, which has given them a far greater number of representatives than one might believe is justified by looking at the overall divisions among the parties within the state as a whole. (This is a major focus of Nick’s scholarship and his lawyerly advocacy.). The point is that assignment of votes by congressional district would not guarantee that the popular vote winner would in fact prevail. I still wish that someone had challenged the electoral college on the grounds I suggested as a part of “blowing it up.” But that may be irresponsible on my part; it is possible that the judicially imposed cure might have in fact made the disease even worse. 

Joey Fishkin offers a tour of several of my pieces. I suspect he may be the only person who has read all of them, including one of my personal favorites, “Who Counts?” “Sez Who?” 58 ST LOUIS L. J. 937. He correctly identifies the overall topic as “the deep problem of who ought to count as a constituent in a representative democracy in the first place.” The fact that we are, as a society, far more inclusive than was the case in 1787 or even 1870, does not in the least mean that the question remains only of “academic” concern. He notes that at the time the essay was written, “the redistricting-focused version of that debate was at the time headed for a Supreme Court confrontation in Evenwel v. Abbott, a case that held it was indeed constitutional for Texas to continue the near-universal American practice of counting all residents, not just citizens or voters, for redistricting purposes.” True enough, but the late Justice Ginsburg’s opinion for the Court was remarkably wooden in its reasoning, even as Justice Alito, in a concurrence, produced the equivalent of a good undergraduate essay spotting the “deep problem” within the case but did not write what might be considered an extended discussion or suggested solution. It is not difficult, given the current state of American politics, to imagine that a future Republican-dominated legislature will simply try to strip, say, Houston, Philadelphia, or Milwaukee of the representatives it might otherwise be entitled to by saying that a “republican form of government” requires only that full citizens be “represented,” with aliens, even if long-term legal residents, not being counted as part of the relevant denominator. After all, they are not allowed to vote—the subject of yet another obscure essay of mine published as part of a symposium, "Suffrage and Community: Who Should Vote?" 41 U. FLA L. REV. 545-562 (1989). It argued that political liberals, i.e., those committed to strong theories of individuals’ right to have some say in decisions that affect their lives, could not easily explain why the franchise is limited only to citizens, a limitation resting far more on a civic-republican than a liberal conception of the polity. If we are satisfied—and why should we be?—that only citizens should be allowed to vote, then why should we necessarily oppose those latter day (pseudo-)communitarians who wish to deny aliens membership in the collectivity whose total number determines the number of representatives any given locality will get? 

Again, though, one might simply respond that this question, whatever its “academic” interest, is of no interest go would-be or practicing lawyers because there is no possibility whatsoever that the current judiciary will (or perhaps even should) declare that it is unconstitutional to deny non-citizens the right to vote or even, perhaps (probably?) to deny them a right to count as part of the basis for representation. Real-life lawyers have enough to worry about, with regard to challenges to our constitutional order and to what elements of “democracy” it might contain, without having to take on challenges posed by “unrealistic” hypotheticals. 

For me the most interesting sentences in Joey’s thoughtful tour through my writings are the last three: “Over time, many of the rest of us have found ourselves moving toward some of Sandy’s once-outlandish positions. To be clear, however, I am not in any way endorsing the crazy idea of holding a constitutional convention. Yet.” (emphasis added). As anyone who knows me is aware, I persist in my support for a new constitutional convention, given my ever-increasing dismay at various features of the U.S. Constitution. Ironically, in terms of this particular discussion, one might get rid of what I regard as one of our system’s worst features, single-member congressional districts, by simple legislation repealing the 1842 congressional requirement. But, just as “everyone knows” that the Supreme Court is not about to require proportional representation, so does “everyone” know that there are no conceivable circumstances where a sufficient number of members of the House of Representatives would ever vote for a statute or a constitutional amendment that would fundamentally change their own political realities. And, of course, the United States Constitution, unlike many state constitutions, has no possibility of a national initiative and referendum that might do an end run around a sclerotic Congress. (I realize that Pam, like most of my friends, is not a fan of the idea of exporting California’s version of direct democracy to the country at large.) So it turns out that the only practical way of affecting this change is through a constitutional convention. QED. Should I make it to my 90^th birthday (and 50 years of being a UT faculty member), then perhaps there will be another such occasion to engage in collective discussion of various things that interest me, whether or not I’m truly expert in them. I will be interested to see if Joey’s “yet” portends a future change of mind! 

Professor Torres-Spelliscy (the only member of the panel whom I had not known previously) could not participate on the Zoom gathering, but I’m delighted that she was able to offer her written presentation. It touches on a crucial problem of the modern “law of democracy,” the role that money should play in elections, as well as a somewhat exotic issue that I had not previously focused on, so-called “ghost candidacies” of last-minute entrants to political races whose basic function is to confuse voters by similarities of names to other candidates or, perhaps, the sharing of what is thought to be a desirable ethnicity. Both of these help to explain, she suggests why Florida, a state basically equally divided in terms of voter registration of Democrats and Republicans, nonetheless has a state legislature handily controlled by Republicans. 

So perhaps it is relevant to mention one final obscure essay, Regulating Campaign Activity: The New Road to Contradiction? 83 MICH. L. REV. 939-953 (1985), not least because my own views are now considerably more complex (or perhaps simply confused) than they once were. That essay was part of the University of Michigan Law Review’s issue devoted to book reviews, and I was reviewing Elizabeth Brenner Drew’s Politics and Money: The New Road to Corruption (1983). At that time, I was a card-carrying member of the American Civil Liberties Union (which remains true today), and I adopted its then general position that money was indeed speech and that almost all regulation of campaign finance, save perhaps for some disclosure requirements, was presumptively unconstitutional. I presented a number of what I regarded as clever academic points that heavy regulation of individual donations, for example, would end up giving excessive powers to celebrities with name recognition or, if pop stars, the ability to encourage thousands of supporters to give small contributions. It might also give disproportionate practical power to individuals with lots of free time on their hands rather than people who had to work and who, therefore, could contribute money but not time. Over time, however, I have modified my views. It simply seems willful ignorance to deny the pernicious role that money—and the necessity to raise money—plays in our political system. And the ability to finance “ghost candidates” is an especially grim example of the advantages that money—and freedom from disclosure as to where one’s support is actually coming from—can offer. 

Here, again, the Supreme Court is hopeless as a source of genuine wisdom, insofar as it has firmly adopted Justice Kennedy’s obtuse view that “corruption” lies only what is really direct bribery, an exchange of money in return for one’s vote, as against the ability of the heavily monied to assure that their ideological champions will in effect be able to drown out potential opponents simply by having so many more resources to purchase advertising and the like. However one wishes to describe it, is modern campaign financing really part of “the law of democracy,” as against the process by which democracy is being destroyed in the United States? (Consider in this context that newly elected members of the United States House and Senate are regularly informed that they must spend up to four or five hours per day making phone calls or otherwise engaging in fundraising for the next campaign. As a matter of fact, there now appears to be only a permanent campaign, with the actual responsibilities for governing often taking second place to protecting one’s own flank or otherwise proving oneself to be a loyal member of the party team.) So perhaps I was too harsh almost 40 years ago in my relative dismissal of her concerns about “corruption.” Do I have a “solution”? The answer is surely no; the problems presented by campaign finance, including genuine First Amendment considerations that I continue to believe exist, make it exquisitely difficult. But this is not a license to ignore them or to say, altogether correctly, that the current Supreme Court will disallow any serious efforts at amelioration. 

As I mentioned on the Zoom call, I am a big fan of the work of the senior Fishkin, Joey’s father Jim, who has devoted much of his professional life to creating decision-making structures that do not rely on traditional election or appointment. Instead, returning to the wisdom of ancient Athens, Jim advocates the use, at least on occasion, of what he calls “deliberative polls” (I would prefer the term “deliberative assemblies”) composed of a randomly selected body of delegates. In my own course on comparative constitutional design, I have assigned David Van Reybrouck’s Against Elections: The Case for Democracy, which spells out the argument for randomness in at least some aspects of government. One thing that can unequivocally be said about random selection is that it eliminates the need for money, save for the willingness of the polity to pay those selected for their time spent in trying to determine what is in the public interest. 

I am especially grateful for Alex Keyssar’s contribution and not only because he, too, is an old friend from whom I have learned much, a giant on whose shoulders I am happy to stand. He notes that he is the one non-lawyer in this group. For me, increasingly, this is a feature, rather than a bug, for some of the reasons I’ve earlier set out. Lawyers, for good reason, tend to become imprisoned in the frameworks offered by the Supreme Court. The worst, none of whom is represented today, manifest the “Stockholm syndrome” and begin arguing that the Supreme Court’s perspective just is the correct one and that challenges to it are illegitimate (and not only likely to be pragmatic failures). Alex is free from such disciplinary cages. He has thus written the leading academic history of the right to vote in the United States and, more recently, a completely dispiriting explanation of why we still have the electoral college, in spite of the fact that, among other things, every poll taken since 1944 has revealed a majority that wishes to eliminate it. (The quick and dirty answer lies in the power of white supremacist Southerners in 1969, led by Strom Thurmond and the later Watergate-hero Sam Ervin, to filibuster a proposed constitutional amendment that had gotten the requisite two-thirds approval in the House and would almost certainly have received the same in the Senate had it in fact been able to come up for a vote. But not enough supporters were sufficiently intense to vote to overcome the filibuster.) 

But for me the crux of Alex’s presentation comes in his question about “Whiggery.” Do “we” indeed believe that darkness precedes genuine dawn (and even brilliant sunlight) and that the “arc of history” does indeed bend toward achieving greater justice, however hard it might be to realize that at any given time (like our own)? What would it mean to believe that darkness begets only further darkness, until we collapse into black holes? 

Like other participants, Alex has been kind enough to read some things I have written in the past, especially, in his case, Our Undemocratic Constitution. The subtitle of that book is “Where the Constitution Goes Wrong (and How We the People Can Correct It”). One might well regard that as ultimately optimistic, offering first a perhaps dispiriting diagnosis followed by the good news that there may be a cure—a new constitutional convention that would presumably be willing and able to correct the problems identified in the diagnosis. So Alex asks “whether deep within this hard-headed critic [i.e., myself] there might lurk a Whiggish sense that things will inevitably get better—the ‘error bred in our bones’ as Americans, particularly among those of us who grew up in the aftermath of World War II.” This accompanies his wondering, later in the essay, “Have the events of the last decade battered us so badly, or shifted the terrain so ominously, as to seriously erode the stance of Sisyphean critic?” Even Sisyphus perhaps was ever optimistic that this time he’d get to the top with his rock, that the past was not in fact completely predictive of the future. 

These are wonderful, if ominous, questions. From my perspective Alex remains a kid; after all, he is only 75, and I am now 81. But he’s certainly correct that many of us who did grow up in the aftermath of World War II could not really avoid what he calls a certain Whiggishness. After all, that was inscribed in my own life, a kid from a small town in western North Carolina, from distinctly modest circumstances, who ends up in effect winning the lottery, thanks, among other things, to scholarships from such institutions as Duke University, Woodrow Wilson Foundation, the Danforth Foundation, and the Russell Sage Foundation that allowed me to attend wonderful universities. There is also the fact that the 1960s, in particular, saw an explosion of American higher education; this meant that almost literally when I was in graduate school there were no real discussions about job prospects. Jobs would be available! As it happens, I’d like to think that the lesson learned was not that anyone could prosper if just one worked hard. I do not think that is the case. But I no doubt did internalize a significant degree of optimism about what would happen to me in particular. Things would work out. In addition, I firmly believe that no one can understand the politics of the 1960s, at least among those along the broadly defined left, without realizing how truly optimistic they were. Change was possible. It might not come easily. And some people, like Schwerner, Chaney, and Goodman, died along the way. But the Civil Rights Movement did prevail, in many important ways. And, for better and worse, Lyndon Johnson was deterred from running from re-election because of his disastrous policies in Vietnam. 

Today’s mood, I think it is safe to say, is much more dour. Even if I remain (cautiously) optimistic about my own personal future (save for inevitable intimations of mortality), that certainly does not lead to any complacency about the circumstances likely to face my grandchildren and, beyond that, of course, other members of both local and then the world political community. I often quote Brecht, “He who laughs has not yet heard the bad news.” Or consider Edgar’s statement in King Lear: “The worst is not/ So long as we can say ‘This is the worst.’” 

Ironically or not, at least some of my friends who reject my call for a new constitutional convention do so by arguing that I overestimate greatly the importance of formal constitutional institutions or texts. To call for constitutional reform, after all, is to suggest that it might make a difference if we switched to parliamentarianism, or to multi-member districts with proportional representation, or replaced the current U.S. Senate with one that might be legitimate under 21^st century notions of democracy or…. But what if, as at least some political scientists suggest, who emphasize the dominant importance of political culture or underlying economic realities, “reform” is a delusional hope? It may be much too late to rectify our dilemma. Some of the Jewish prophets did suggest that repentance would avert the catastrophes they foretold. They were the (relative) optimists. Others said it was too late and God too angry. (One might well reread Lincoln’s Second Inaugural from this perspective.) Exile and catastrophe were inevitable, and the best that one might hope for is a “saving remnant” at some far point in the future. 

I have often said that I view myself as a would-be Paul Revere who is in fact a Cassandra. That is, my hope is rouse an audience to believe that some threat is upon us—“The British are coming”—but there is accompanying good news: We can do something about it if we meet at Lexington and Concord. Cassandra, on the other hand, was doomed to be able to foretell an ominous future, but no one would listen to her. Paul Revere was “influential.” Cassandra was not. Perhaps that is the dilemma facing more and more academics, whether they are in the legal academy or not. 

Sanford Levinson holds the W. St. John Garwood and W. St. John Garwood, Jr. Centennial Chair in Law at the University of Texas Law School. He is also a Professor in UT’s Department of Government and a Visiting Professor of Law at Harvard Law School. You can contact him at slevinson@law.utexas.edu.