Working Right?

Bob Sheridan bobsheridan at
Tue Nov 8 15:05:48 PST 2005

Since we're arguing from analogy (industrial equipment, motor vehicles) 
I'd like to submit the one that works for me, after first adding to the 
list of proofs of failed constitutions the failed Annapolis Convention 
(1786) that was promoted by Hamilton succeeded by the real thing in 1787 
that chucked the Articles and did a re-write of the whole deal.  That's 
what I call evidence that a constitution is not working.

To the computer literate students I offer that the Constitution is the 
operating system to which the applications programs (the other law 
school subjects) must conform.  Expanding the analogy, operating systems 
come and go:  DOS, UNIX, WINDOWS, and whatever Apple calls theirs.  
Operating systems go through various versions.  The constitutional 
conventioneers at Microsoft are working on a new one as we speak. You 
recall Windows 95, Windows XP, etc.  All of these do the same thing in 
the sense that they act as the controlling interface between the 
applications programs and the circuitry on the chip, as I understand 
these things (very little).  In the world of computer operating systems, 
new versions are issued for what is called "beta testing"  in which bug 
reports are reported back when something doesn't work right, or well.  
When new uses and new technology appear, such as the internet and high 
resolution graphics, amendments to the operating system appear to deal 
with them.

The conlaw cases that we teach, the canonical cases from Marbury to 
Lawrence, become our computer language, our verbal shorthand for the 
ideas they embody.  You and I can argue all day long using terms like 
Lochner, Griswold, etc.  Our version of Microsoft, where the upgrades 
and tinkering get done each year beginning the first Monday in October 
through June, is none other than the Supreme Court.  It's our annual 
rolling constitutional convention, always tweaking the operating system 
for good or ill.  When even the Court can't handle matters, the 
occasional amendment is promoted.  That's our system.  It's tough to 
throw out the whole system in the hopes that the new version will be 
bug-free.  It probably won't.

Why does our system suit us and not others?  Perhaps for the same reason 
that we prefer baseball and football to cricket and soccer, and if you 
can put your finger on that, kindly do.

Robert Sheridan
Professor of Constitutional Law (2002-2005 and counting)
San Francisco Law School
San Francisco, California

(I prefer 'rs, sfls' for various reasons which I'll be happy to go into 

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