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Protestant Constitutionalism: A Series of Footnotes to Sanford Levinson

Publication Date: 
September 17, 2010
Jack M. Balkin

Legal scholar Jack Balkin blogged about the '"genre of what is now called 'the Constitution outside the courts,'" citing the work of Sanford Levinson (JD '73) and Stanford Law Dean Larry Kramer:

I can think of no better way to celebrate Constitution Day this year than to publish this little essay written in honor of my dear friend Sandy Levinson, on the occasion of the Lifetime Achievement Award he received from the Law and Courts section at the American Political Science Association convention on September 3rd.

Protestant Constitutionalism: A Series of Footnotes to Sandy Levinson.

Alfred North Whitehead once said that philosophy is a series of footnotes to Plato. There is a pretty good argument that modern American constitutional theory is a series of footnotes to Sandy Levinson. Examine the many issues roiling constitutional law faculties today, and you will discover that Sandy discussed them years before they became popular. The Second Amendment? Sandy explained why liberals needed to take it seriously back in 1989. Torture and national security? Presidential dictatorship? Constitutional amendments outside of Article V? Sandy focused on all of these ideas before they were widely taken up.


Many of the big trends and movements in modern American constitutional theory flow from the idea of constitutional protestantism. Sandy’s book anticipates Mark Tushnet's populist constitutionalism, developed in his 1999 book, Taking the Constitution Away from the Courts, popular constitutionalism, articulated in Larry Kramer's important 2004 history, The People Themselves: Popular Constitutionalism and Judicial Review, and a wide range of people writing in the genre of what is now called "the Constitution outside the courts."