A Modest Proposal for Ending Gridlock in Washington

I have a proposal to vastly improve politics in Washington, and it should have bipartisan appeal—or, at least, it should appeal to one party this year and to the other party 2 or 4 years from now. Given the new practical reality that it takes 60 votes to get anything done in Washington, and that there are never 60 votes for anything useful, it seems like a perfect time to consider a new amendment to the Constitution. It would need to be proposed by a convention called for by 2/3 of the states, as the other method probably wouldn’t work:

RESOLUTION

Proposing an amendment to the Constitution of the United States
relating to the legislative power.

Resolved by this Constitutional Convention assembled (a majority of the delegates concurring therein), That the following article is proposed as an amendment to the Constitution of the United States, which shall be valid to all intents and purposes as part of the Constitution when ratified by the legislatures of three-fourths of the several States:

Article —

Section 1. All legislative powers granted by this Constitution shall be vested in a Congress of the United States, which shall consist solely of a House of Representatives.

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Best of the Blogs

This week: Those who don’t do, can’t teach? Also, an unconstitutional village ordinance on real estate for-sale signs may serve as a symbol of racial integration; the surprising stem cell research injunction; and is there a “private action” requirement in the Constitution?

First, it’s recruiting season for new law professors, which means that this week it was time for the perennial debate over the composition of law faculties. This time it was kicked off by Georgetown adjunct professor Brent Newton with his article, posted on SSRN, entitled “Preaching What They Don’t Practice: Why Law Faculties’ Preoccupation with Impractical Scholarship and Devaluation of Practical Competencies Obstruct Reform in the Legal Academy.” That was followed by comments from Stephen Bainbridge, Joe Hodnicki, Jonathan Adler, Rick Garnett, Kristen Holmquist, and Paul Horwitz. (I myself have weighed in on previous iterations of this debate.) One thing that struck me as missing from all of this commentary, much of it thoughtful, was any mention of the notion of law school degrees as positional goods.

Sarah Waldeck posted the fourth and final installment in her fascinating series on a Chicago suburb that has persisted in retaining, and apparently enforcing, a clearly unconstitutional village ordinance banning real estate for-sale signs. A taste:

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Perry v. Schwarzenegger and the Slippery Slope

As just about everyone knows, yesterday a Northern District of California judge struck down California’s Proposition 8 as unconstitutional. There has been a tremendous amount of blog commentary on this already, much of it worth reading. (See Orin Kerr (here and here), Dave Hoffman, Eugene Volokh, Dale Carpenter, Howard Wasserman, Rick Hasen.) The one issue I want to comment on is what Perry means for the future of the constitutional treatment of same-sex marriages.

Many advocates for legal recognition of same-sex marriage are deeply worried by Perry. Dale Carpenter, for example, is concerned that the breadth of the arguments considered in Perry could lead to a sharply negative precedent if the case is reversed on appeal. Those fears are legitimate. An Equal Protection or Due Process argument mandating equal treatment for low-status individuals is what might be called “a nuclear bomb of a legal theory” — it applies everywhere, all at once, and obliterates legal distinctions meant to enforce low social status. The same applies, to a lesser extent, to arguments that the Full Faith and Credit Clause mandates recognition of valid same-sex marriages by every other state in the union. Courts might be hesitant to, so to speak, stop worrying and learn to love the bomb. Marched to the precipice too quickly, they might find some way to pull back from the brink.

If that happens, and if American society continues to develop tolerance for same-sex couples, will we be locked into sub-optimal constitutional doctrine? Not entirely. As I argue in my forthcoming article on this subject (in the Alabama Law Review), there is an escape valve.

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