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Mark Graber: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order
Michael Ramsey

Mark Graber (University of Maryland - Francis King Carey School of Law) has posted Belling the Partisan Cats: Preliminary Thoughts on Identifying and Mending a Dysfunctional Constitutional Order (Boston University Law Review, Vol. 94, 2014, p. 611) on SSRN. Here is the abstract:

This paper sharpens debates over whether the Constitution of the United States and the American constitutional order are presently dysfunctional, the nature of any dysfunctions, and how underlying regime flaws are likely to be corrected. Rather than focusing primarily on constitutional text, this Article explores the dynamic ways in which constitutional processes have influenced and been influenced by the structure of constitutional politics. Constitutional dysfunction is best conceptualized as the failure of a constitutional order rather than as a consequence of a flawed constitutional text, and dysfunction typically occurs when a regime is unable to transition from a dysfunctional constitutional order to better constitutional politics. The New Deal constitutional order experienced a fairly painless transition and was able to operate successfully under the formal rules established in 1789 largely because institutions conformed to a system of two non-ideological parties. The increased polarization of the two major parties leads to failures to operate the New Deal constitutional order and inhibits a transition to a better constitution order. Those who champion constitutional reform must accept their incapacity to bell the partisan cats. Most likely, the present constitutional dysfunction will end only with the triumph of one major party. A slight chance exists that Americans will find a way to strengthen more centrist tendencies in the present constitutional order. That success, however, will more likely require cooperation from partisan elites than a successful escape from the conditions of contemporary politics.