Continuing the conversation
Do you truly think, I say think, not believe because we have been flooded by peoples beliefs since the media brings us these soul searching effusions direct 24/7, there is a possible transformation of the Constitution? The courts seem to be conquering the territory historically reserved to amendments. Is there still the political will to envisage such profound transformations?
I certainly agree that there have been some significant changes in constitutional understandings over the past six years. Indeed, Jack Balkin and I have written about this under the rubric of the rise of the "national surveillance state," and, of course, there is the effort to enhance the powers o of the President. These are all important. BUT, with regard to the issues I am now most interested in, which I describe as the "hard-wired" features of the Constitution last considered by most people when they took boring courses (which my daughter advises me are no longer taught in most school systems) on the formalities of the American system of government, there has been little, if any, transformation since 1789, when George Washington was inaugurated. That is, we continue to have a bicameralism in which each house has an absolute veto over the other; we continue to have a presidential veto, which, to be sure, is far more frequently used today than it was for the first 70 or so years of the American republic; we continue to have equal voting power in the Senate by state; we continue to be encumbered, because of the fixed-term presidency, with presidents who have justifiably lost the confidence of a substantial majority of the public; and so on. I am a huge fan of Bruce Ackerman and his notion of amendment outside of Article V. (Steve Griffin has also developed this argument especially well.) But I think the limits of the Ackermanian "confidence" in such a form of amendment is found precisely in the hard-wired features that have not really been transformed at all. This is why we are forced to think of formal amendment and how such amendments might actually be brought about, with the absolutely necessary first-step being the national conversation that both Larry Sabato and I, whatever our specific differences, are trying to encourage.