purpose of the Constitution

Sanford Levinson SLevinson at law.utexas.edu
Tue Nov 8 13:44:42 PST 2005

For what is is worth, my forthcoming screed against the Constitution has only one paragraph on the positive rights issue, and it suggests, citing Frank, that whether a Constitution includes such rights may not be particularly important.  Indeed, the brunt of my argument is that constitututional protections of rights per se are probably overrated in importance (by law professors).  The brunt of my argument is that unlitigated structures are actually more important to actually achieving what most of us (regardless of our partisan identification) are most likely to care about.  
And while I'm at it, I'm a bit surprised that Jim Henderson offers the failure to pass a constitutional amendment as a sign of "the Constitution must be working all right."  Given his very strong views on abortion, I presume that he thinks that the failure to pass an override amendment is not a sign that most of the public is actually satisfied with the current Roe regime and, therefore, that the system of judicial review is working quite all right to create a reasonably satisfactory equilibrium on the issue.
(UT School of Law)
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