The Shrinking Constitution of Settlement

Posted: 16 Oct 2019

See all articles by David Pozen

David Pozen

Columbia University - Law School

Date Written: October 17, 2019

Abstract

Professor Sanford Levinson has famously distinguished between the "Constitution of Settlement" and the "Constitution of Conversation." The former comprises those aspects of the Constitution that are clear, well established, and resistant to creative interpretation. The latter comprises those aspects that are subject to ongoing litigation and debate. Although Americans tend to fixate on the Constitution of Conversation, Levinson argues that much of what ails our republic is attributable, at least in part, to the grossly undemocratic and "decidedly nonadaptive" Constitution of Settlement.

This short Article, prepared for a symposium on Levinson's coauthored book Democracy and Dysfunction, explains that the Constitution of Settlement is, in fact, becoming unsettled as growing levels of political frustration and polarization have roused a growing number of actors to seek to challenge or circumvent various pieces of it. Fundamental reform is now on the table. The Constitution of Conversation, meanwhile, is becoming ever less conversational. As these developments reflect, the distinction between Levinson's two constitutions is significantly more complicated — and fluid — than his binary implies. Ironically, Levinson is not just a leading critic of the Constitution of Settlement but also an active participant in its maintenance.

Keywords: constitutional law, constitutional change, constitutional conventions

Suggested Citation

Pozen, David E., The Shrinking Constitution of Settlement (October 17, 2019). Drake Law Review, Forthcoming; Columbia Public Law Research Paper No. 14-640. Available at SSRN: https://ssrn.com/abstract=3465598

David E. Pozen (Contact Author)

Columbia University - Law School ( email )

435 West 116th Street
New York, NY 10025
United States

HOME PAGE: http://web.law.columbia.edu/faculty/david-pozen

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