Letter to Florida Legislature

[Sanford Levinson]

As a signatory of the letter, I find myself somewhere between Professors
Sisk and Henderson.  As noted earlier in some of my snappish "law
professors as pundits" postings, I do indeed share Professor Sisk's (and
Judge Posner's) view that a great deal of "public intellectualism" is quite
sloppy, and I think that academics should be held to serious standards when
they intervene in public debates at least in part on the basis of their
academic status.  (Thus the disingenuity of the common "institutional
affiliation for purposes of identification only," as if we will think it's
Bruce Ackerman of Old Siwash instead of the Yale Bruce Ackerman who signed
a particular letter.)  I am increasingly unwilling to sign petitions,
amicus briefs, etc., especially if there are any paragraphs that I would
not be willing to defend in terms of my academic work.  Thus, I regret
signing a Webster brief some years ago that relied way too much on the
importance of adhering to precedent, since I am not particularly
precedent-oriented in my scholarly approach to constitutional
interpretation (given that reliance on precedent is just another name for
the kind of judicial supremacy that I have often criticized).

Why was I willing to sign the letter given that I am patently not an expert
in the constitutional meaning of Article II's delegation of authority to
the legislature?  The answer is that I firmly believe that no one is an
expert on this because, like almost all structural features of the
Constitution, it is almost never taught or thought about because, indeed,
never litigated.  (Indeed, I think I'm one of the few people on this list
who has written a scholarly piece on the 12th amendment, and it was a
1500-word essay explaining why one provision is the stupidest part of the
Constitution.)

I think that any of us on this list can get up to speed in an astonishingly
short time on the US constitutional issues posed by the Florida special
session, unlike, say, the case with regard to technicalities of Florida's
election law, about which I know nothing and would make no public comment.
(I have learned a lot from a colleague who *does* know a lot about the
technical law of elections, particularly the difference between seeking
recounts and "protesting" the results of completed counts.  One of the
things I've learned is how little I know about an arcane, and absolutely
fascinating, area of law.)

Quite frankly (and I hope not *too* snappishly), I have no reason at all to
believe that Professors Fried and Elhauge, of the Harvard Law School, have
more expertise with regard to the meaning of Article II than I have (or
anyone else on this list has).  I am unfamiliar with any writing these
estimable professors have previously done with regard to those issues.
Indeed, Professor Elhauge is perhaps best known for an article on social
choice theory that emphasized the propensity to capture by partisan
interests of legislative institutions and, indeed, the judiciary, once
interests realize that courts will be making policies.  (Lest I be thought
unduly partisan, I would extend this stricture to Professor Tribe, who is
remarkably knowledgeable about far more areas of constitutional law than I
ever will be, but who has not heretofore been well known as an expert on
the relevant clause of Article II or the implications of Section 2 of the
Fourteenth Amendment and, especially, the 17th Amendment for that clause.)

The blunt fact is that all of us--lawyers, law professors, and judges,
including justices on the United States Supreme Court--are basically
amateurs in this area--that is, the implications of Article II, *not* the
technicalities of Florida election law--suddenly faced with issues that
we've literally never thought about before.  We're like our students when
presented with a final exam question drawn from left--or right--field that
had never been discussed in class, but the professor insists that if one
had been truly attentive, then he/she should be able to apply the legal
concepts learned during the semester to this brand new issue.  I think that
is what we should say if reporters call us.

sandy