Constitutional Fideism

Abstract

Sanford Levinson. Constitutional Faith. Princeton, N.J.: Princeton University Press, 1988. Pp. xii, 250. $19.95. Pencil in a question mark after the title. Sanford Levinson means to question whether faith in the Constitution, or indeed in anything, is possible. At the end of his book, exhausted by his doubts and by the effort to overcome them, he does subscribe to the Constitution, signing ceremoniously less as a proud citizen than as a "privileged member of the American class structure" (p. 193) who feels guilty about his privileges and hopes the Constitution can be used to subvert them. If this hope comes true, Levinson's faith that the Constitution is more than a mere endorsement and concealment of the American class structure will be justified. But there is no ground for this faith, he believes, in either reason or revelation. Levinson's constitutional faith is like religion in not being rationally supportable, but unlike religion in not being conveyed to us from on high. Since there is no ground for faith, how can there be ground for guilt? But Levinson's guilt is his second skin. He needs his faith to tend his guilt, not absolve it. Better, then, that his faith not be justified. Constitutional faith, as Levinson presents it, substitutes for a nonexistent common good, and even for morality as a whole, which is also nonexistent. His first chapter is on the Constitution in American civil religion, where he develops "Catholic" and "Protestant" views of the Constitution. His second examines the morality of the Constitution, particularly the moral difficulty of respecting a document that seemed to protect slavery. The third is on loyalty oaths and what they mean; the fourth is on the naturalization of citizens and whether the "attachment" of such citizens to the Constitution can be defined; and the fifth, about Levinson's own status as professor of law, considers whether Law Schools should teach respect for the American Constitution (not too much, is his answer).