Sisyphus and Lingering Whiggishness: A Few Semi-Random Observations

Guest Blogger

This post was prepared for a roundtable on Voting Rights, convened as part of LevinsonFest 2022—a year-long series gathering scholars from diverse disciplines and viewpoints to reflect on Sandy Levinson’s influential work in constitutional law. 

Alex Keyssar 

Although I am not a legal academic (or even a lawyer), I have for years been a consumer of Sandy’s writings. (Or at least a portion of them; I think he writes faster than I read.) I have counted on him to offer a forthright (and sometimes curmudgeonly) take on matters I care about, to probe beneath surfaces, discern inconsistencies and pursue implications—all with his trademark blend of learning about constitutional law, political theory, and American history. For that, I can only thank him. 

Since I’m ill equipped to comment constructively on Sandy’s legal views, I’m going to slip into the guise of an intellectual historian—or even literary critic!—and focus my brief remarks on a tension that I think runs through many of his writings, a tension that may be common to democracy scholars of our generation (and even those a bit younger). That tension could be characterized simply as “optimism” versus “pessimism,” but those labels are too flaccid. It is also a tension between mind and heart, between the perception that our political problems (and the legal and intellectual problems that accompany them) may resist solution and the hope—with a hint of Whiggishness—that things will improve and work out alright because they always have in America. In Sandy’s work, that has yielded a recurrent and characteristic authorial stance: “the critic as Sisyphus.” 

Let me explain – or at least elaborate a bit. Sandy’s intellectual posture in his writing (or at least the writings that I know) is invariably that of the rigorous, unyielding critic: of received wisdom, widely accepted interpretations and proposed solutions to thorny problems (not to mention Scotus decisions). In “One Person, One Vote: A Mantra in Need of Meaning,” for example, he concluded that we don’t have a clear idea how that popular mantra applies to all circumstances, leading (among other things) to some incoherence and inconsistency in the drawing of legislative district boundaries. More than a decade earlier, he pointed out that we lack a cogent conception of who should belong to the “community” of voters – even puckishly suggesting that it might make more sense to have loyalty oaths than to rely on the purely formal category of citizenship. Similar issues are broached in “Who Counts?” “ Sez Who?” (2014). In each of these articles he illuminates inconsistencies of both theory and practice, as well as the absence of practice grounded in widely accepted principles.

This pattern is nowhere more apparent than in Our Undemocratic Constitution. In that deservedly acclaimed book, Sandy detailed with precision numerous major flaws in our Constitution, flaws that prevent the U.S. from having a truly democratic political system. He then proceeded to argue that the Constitution (particularly Article V) is effectively an “iron cage” that “works to make practically impossible needed changes in our polity.” The case that he made was compelling—disturbingly so when the book was published in 2006 and even more so in 2022. Yup, here we are with a highly undemocratic constitution and no apparent way to significantly improve it! 

But Sandy refused to surrender, to throw up his hands, to quietly retire to the beach, or call for revolution—although he did wittily (and not coincidentally) invoke Lenin (“What is to be done”). Instead, he proceeded to encourage his readers to join him in a national dialogue about the Constitution that might have some chance of leading, down the road (way down the road) to the “reinvigoration of the American experiment.” The process may be slow and the odds long, but Levinson, like Sisyphus, is going to do his damned best to roll that rock up the hill. 

With that resolute past as prologue, I find myself wondering if there has been a shift in Sandy’s thinking – or his faith– since the publication of Our Undemocratic Constitution. What has happened in American public life in the last fifteen years could certainly induce pessimism, and in a review essay of books about the Electoral College (including my own) published in Balkinization 2020-21, he sounded far less sanguine than he has before. After briefly rehearsing his longstanding indictment of the “imbecilic” and anti-democratic character of the Electoral College, he proceeded—very much in character—to blast the inadequacy and inconsistencies of two proposals for reform put forth in the books under review (happily not my own). And the upbeat final note? The possible path forward, however difficult and prolonged? It is nowhere to be found. Quite the contrary:

The motto for people like myself, who wish wholesale – or even partial – constitutional reform is suggested by Dante’s inscription over the gates of Hell: “Abandon all hope ye who enter here.” 

Or, less aphoristically: “we seem paralyzed and unable to believe that we can exercise any meaningful ‘reflection and choice’ about how we should structure something so important as choosing a modern president who can literally make decisions involving the life and death of millions of Americans (not to mention those all over the world).” Hmmm… doesn’t seem to be much point struggling with that rock right now.           

The upshot of this paragraph, of course, is to raise questions that I’d be happy to hear Sandy discuss (without, of course, putting him on the spot). Is it only about the Electoral College that Dante’s inscription applies? Or is it about meaningful democratic constitutional reform more broadly? 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? 

One final bit of musing and then I will desist. I imagine that Sandy will be inclined to reject outright my suggestion that some of his writings bear traces of Whiggishness. I have no desire to belabor the point, but I do think that some degree of Whiggery—some unspoken optimism about American democracy—was difficult to escape (or stamp out) for those of us who came of intellectual and political age in the first few decades after World War II. It was everywhere in the air, and evidence of its truth seemed to inform our own lives as well as tumultuous struggles like the Civil Rights movement. {“The arc of the moral universe. . . bends towards justice.”) Until recently, I think, it persisted even when our own work as scholars and critics pointed in different directions. 

I confess to being a case in point. The first edition of The Right to Vote was published in September 2000, eight weeks before the Bush-Gore election. The analytic arguments put forward in that (luckily timed!) book surely suggested that democratic rights in the U.S. were always the subject of conflict—and thus that one could expect to see sharp contestation over voting rights in the first decades of the 21^st century. That analysis, we know now, was correct. But I personally did not see those conflicts coming and was as surprised as anyone else by their eruption shortly after 2000. As a citizen, I had not internalized my own scholarly conclusions; my failure to do so, I suspect, had something to do with the Whiggish air that I had breathed so deeply decades earlier. 

Alex Keyssar is the Matthew W. Stirling, Jr. Professor of History and Social Policy at the John F. Kennedy School of Government at Harvard University. You can reach him at alex_keyssar@hks.harvard.edu.