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The Constitution is the cornerstone of American government, hailed as one of the greatest contributions of the Western Enlightenment. While many seem content simply to celebrate it, those most familiar with the document invariably find it wanting in at least some aspects. This unique volume brings together many of the country's most esteemed constitutional commentators and invites them to answer two questions: First, what is the stupidest provision of the Constitution? "Stupid" need not mean evil. Thus, a second, related question is whether the scholar-interpreter would be forced to reach truly evil results even if applying his or her own favored theory of constitutional interpretation. The contributors include Lawrence Alexander, Akhil Reed Amar, Jack Balkin, Philip Bobbitt, Gerard Bradley, Rebecca Brown, Steven Calabresi, Lief Carter, Christopher Eisgruber, Lawrence Sager, Marie Failinger, Daniel Farber, James Fleming, Mark Graber, Stephen Griffin, Gary Jacobsohn, Randall Kennedy, Lewis LaRue, Theodore Lowi, Earl Maltz, Michael McConnell, Matthew Michael, Robert Nagel, Daniel Ortiz, Pamela Karlen, Michael Paulsen, Robert Post, Lucas Powe, Dorothy Roberts, Jeffrey Rosen, Frederick Schauer, Michael Seidman, Suzanna Sherry, David Strauss, Laurence Tribe, Mark Tushnet, and John Yoo

Scholars have shown that written constitutions may be informally amended in various ways, for instance by judicial interpretation, statute, or executive action. But scholars have yet to fully appreciate that written constitutions may also be informally amended by desuetude. Informal amendment by constitutional desuetude occurs when a constitutional provision loses its binding force upon political actors as a result of its conscious sustained nonuse and public repudiation by political actors. Though it is a species of informal amendment, constitutional desuetude possesses unique properties. Constitutional desuetude reflects the informal repeal of a constitutional provision as a result of the establishment of a new constitutional convention. Despite its obsolescence, the desuetudinal constitutional provision remains entrenched in the constitutional text. Consequently, although informal amendment generally leaves the constitutional text entrenched, unchanged and politically valid, this particular variation of informal amendment leaves the text entrenched and unchanged but renders it politically invalid. In this paper, I illustrate and theorize the phenomenon of informal amendment by constitutional desuetude with reference to the Canadian Constitution, I construct an analytical framework for identifying constitutional desuetude in other jurisdictions, I distinguish constitutional desuetude from other forms of obsolescence, and I also explore the costs of constitutional desuetude.

In evaluating the success of the American constitutional system, constitutional theorists often focus their attention on the broad structures through which constitutional law is made--for example, the existence of multi-member courts a majority of whose members usually must agree on the text of a single opinion or the difference in training and life experiences that judges have in comparison with legislators. The same theorists tend to pay little attention to a related set of institutional arrangements that are more recent in their development--for example, the proliferation of amicus briefs filed by advocacy groups, the substantial increase in the use of law clerks, or the degree to which public awareness of the content of Supreme Court opinions is increasingly mediated through ideologically-committed talking heads. This paper makes two related points: First, it argues that constitutional theorists have drastically underestimated the degree to which the content and tenor of constitutional law turns on the second, more novel set of institutional arrangements. Second, it argues that the very distinction between the two categories is ephemeral; both the more traditional and the more novel institutional structures of the American constitutional courts are nominal and historically contingent. The paper concludes with an argument that the two sets of institutions can be--and must be--jointly theorized under the rubric of "constitutional culture."

Frontmatter -- Contents -- Acknowledgments -- Introduction. Constitutional Conversations -- CHAPTER 1. A Constitutional Accident Waiting to Happen -- CHAPTER 2. Parlor Games -- CHAPTER 3. An Agenda for Constitutional Reform -- CHAPTER 4. "Clause and Effect7' -- CHAPTER 5. The One Senator, One Vote Clauses -- CHAPTER 6. Our (Almost) Perfect Constitution -- CHAPTER 7. Unnecessary and Unintelligible -- CHAPTER 8. The Nominee Is . . . Article V -- CHAPTER 9. A Natural Aristocracy? -- CHAPTER 10. "Neither Force nor Will" -- CHAPTER 11. Presidential Elections and Constitutional Stupidities -- CHAPTER 12. The Presidential Age Requirement and Public Policy Agenda Setting -- CHAPTER 13. The Last Centrifugal Force -- CHAPTER 14. Someone Should Have Told Spiro Agnew -- CHAPTER 15. Old People and Good Behavior -- CHAPTER 16. Divided Suffrage -- CHAPTER 17. The Constitution of Fear -- CHAPTER 18. Criminal Procedure as the Servant of Politics -- CHAPTER 19. Our Unconstitutional Senate -- CHAPTER 20. How to Violate the Constitution without Really Trying -- CHAPTER 21. The Whole Thing -- CHAPTER 22. How Stupid Can a Coasean Constitution Be? -- CHAPTER 23. Constitutional Tragedies and Giving Refuge to the Devil -- CHAPTER 24. The Meaning of Constitutional Tragedy -- CHAPTER 25. The Tragic Case of Capital Punishment -- CHAPTER 26. Constitutional Tragedies: The Dark Side of Judgment -- CHAPTER 27. Good Constitutions and Bad Choices -- CHAPTER 28. Jocasta Undone -- CHAPTER 29. Constitutional Tragedy in Dying: Or Whose Tragedy Is It, Anyway? -- CHAPTER 30. Dramatic Jurisprudence -- CHAPTER 31. Constitutional Farce -- CHAPTER 32. Constitutional Merry-Go-Round -- CHAPTER 33. Glamis, Yes; Cawdor, Yes— but King of Scotland? -- CHAPTER 34. Brown v. Board of Education -- CHAPTER 35. Tragedy and Constitutional Interpretation -- CHAPTER 36. The Meaning of Blacks7 Fidelity to the Constitution -- CHAPTER 37. Tragedies under the Common Law Constitution -- CHAPTER 38. McCulloch v. Maryland -- CHAPTER 39. Antigone and Creon -- APPENDIX. The Constitution of the United States -- About the Contributors -- Index

Virtually all constitutional scholars agree, and the Supreme Court has uniformly held, that our entire system of constitutional democracy is premised in important part on the dictate of judicial review, i.e., the power of the judiciary to exercise the final say as to the meaning of the countermajoritarian Constitution's provisions. Absent judicial review, the fundamental speed bumps to tyranny that the Framers so carefully inserted into our political structure would be rendered all but useless at best and a fraud on the electorate at worst. Yet puzzlingly, most of the very same scholars and judges assume that the very political branches that the Constitution is designed to restrain will fully control the remedies to be issued. Thus, all the political branches need to do to avoid constitutional control is deny the courts any power to enforce their decisions. Such a logically inconsistent dichotomy indirectly destroys the essence of the judicial review process that is so central to American constitutional democracy. Yet neither constitutional scholars nor the Supreme Court have recognized either the serious logical flaw or the potentially grave practical dangers in vesting in the very branches sought to be controlled by the Constitution the final power to determine the scope—indeed, the existence—of remedies to enforce constitutional dictates. This Article explains the inherent theoretical and practical link between constitutional review and constitutional remedies, demonstrating that full control of constitutional remedies belongs in the judiciary, not the political branches. It then explains how judicial inference of constitutional remedies in the face of textual silence on the issue can be justified by principled theories of textual interpretation, highlights the inadequacy of scholarly work in this area, and answers potential counterarguments. Finally, it applies this theory of constitutional remedies to the Supreme Court's implied remedies jurisprudence.

The idea of supra-constitutionality was formulated in the science of constitutional law in the second quarter of the 20th century and associated with the names of M.Hauriou and K.Schmitt, who for the first time noticed the possibility of the existence of norms that are higher than the constitution. This article is an attempt to give the doctrine of supra-constitutionality an actual theoretical and dogmatic meaning in the context of the study of the material limits of constitutional changes. The doctrine of supra-constitutionality claims to play an important role in explaining that unchangeable norms can exist in constitutional law and that they cannot be excluded, changed, limited, overcome, affected by the other sources of constitutional law, including the constitution itself. Supra-constitutionality is viewed as a characteristic of unchangeable constitutional norms that constitute the material limits of constitutional changes. Supra-constitutionality presupposes the existence of norms that surpass the rest of the constitutional norms and predetermine their content through the definition of what can, should and should not be included in the constitution or excluded from it. The basis of constitutional supra-constitutionality is the argument of hierarchical differentiation. In addition to recognizing unchangeable constitutional norms as supra-constitutional, the article raises the question of the existence of natural law and international law supra-constitutional norms. Natural law supra-constitutional norms have an external and non-positive character. They are not enshrined in the constitution, but stem from a reasonably understood concept of what is due in the most civilized societies, which is determined by the constitutional court. International law supra-constitutionality is understood as the superiority of the norms of international law over the constitution. It has an external and positive character. International law supra-constitutionality can cause political objections from opponents of the absolute rule of international law. Supra-constitutional constitutional, natural and international law norms can come into conflict with each other. The paradox of the doctrine of supra-constitutionality lies in the fact that it creates a hierarchy of norms within the constitution itself, distinguishing between simple and supra-constitutional constitutional norms, or distinguishes certain non-positive norms that are outside the constitution, as having priority over the constitution, or puts some norms of international law over all norms of national law, including the constitution. The purpose of the doctrine of supra-constitutionality is to preserve the inviolable fundamental (natural or generally recognized) values, which justifies its logical flaws and paradoxicality.

The last thing that Greece currently needs is the start of the process for the revision of the Constitution. At a very critical moment for the country's economy, with the state's existence being under threat and with the political system collapsing and becoming more and more unreliable, any discussion over constitutional revision is, according to my opinion, untimely, absurd, pointless and misleading. Such a kind of constitutional change will neither respond to any of the immediate and profound problems that have been brought about by the crisis, nor tackle the chronic and structural ills of Greek political life: political and administrative corruption, tax evasion, paralysis of the state and the administration, wrecking of education, party corruption and clientelism.