The Shrinking Constitution of Settlement

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 Article, prepared for a symposium on Levinson\u27s 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\u27s 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