Working right?

Bob Sheridan bobsheridan at
Tue Nov 8 10:07:29 PST 2005

Others made the point that current law school conlaw study overlooks  
the question as to whether the constitution is working, which prompted 
the query as to what criteria or standards might be applied to make a 
case.  Right now we use the challenge to constitutionality to protest 
alleged violations.  Just about any losing side can claim that the 
Constitution is not working, and it isn't by their lights.  See the 
Constitution-in-Exile adherents. An obvious disconnect, perhaps, was the 
slavery issue that led to war, but even that was disputed, hence the 
war.  The revolution is an earlier example of constitutional rupture.  
Is that how you tell?  When a war results?

Establishing criteria is apt to be more difficult than posing the 
question in the first place as to whether it's "working."

I'm not sure how low voter turnout supports the view that the 
Constitution is not working.  Maybe the folks who don't vote are happy 
to think that is working well enough so that they don't have to bother 
casting a vote.  I have to drag  myself to the polls today in a special 
Schwarzenegger election to see what I can vote against, come to think of 
it, coincidentally.  I'm not sure it's fair to blame my lethargy on the 

I think that the original advocates of addressing the question of 
whether the Constitution works are going to have to suggest some 
guidance, otherwise the question may drift off into the mists of 
academia, not that this could happen around here...


Malla Pollack wrote:

>Obviously a very difficult thing to prove or disprove for many reasons. I
>would say that the Constitution is not working very well.  The most
>"objective" proof is the relatively low voter turnout on major elections. 
>Malla Pollack
>Professor, American Justice School of Law
>Visiting Univ. of Idaho, College of Law
>mpollack at
>-----Original Message-----
>From: conlawprof-bounces at
>[mailto:conlawprof-bounces at] On Behalf Of Bob Sheridan
>Sent: Tuesday, November 08, 2005 7:46 AM
>To: ConLaw Prof
>Subject: Working right?
>On the subject of whether the Constitution was working or not, how 
>could  you tell?
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