Bad ideas in the form of constitutional law
By Sandy Levinson, a professor of law and political science, has been arguing for several years now that academics pay way too much attention, relatively speaking, to the rights provisions of the Constitution, and not nearly enough to what he calls its hard-wired structural features. One reason this is so is obvious: the hard-wired features don’t produce any litigation to argue about.
A nice example is the 20th amendment. 73% of law professors and 99.95% of normal humans can’t tell you anything about it, but what it did was, among other things, close the gap from the presidential popular vote to the inauguration from 4 months to two and a half. Four months made a certain amount of sense in the 18th century, before Blackberries and Wi-Fi, but can anybody come up with an argument for why, in 2008, in the middle of a severe financial crisis, etc. etc., it’s a good thing for us to be stuck with two and a half more months of George W. Bush in the lamest of duck blinds, while Obama “signals” this and “hints” at that?
It doesn’t make a lick of sense, but it’s in the Constitution so we’re stuck with it, more or less. Like a lot of other stuff.