The answer is no

The idiot Tushnet 

Yesterday I was contacted by a reporter with PolitiFact, with a question based on this statement by Joe Biden: “The only court packing is going on right now. It’s going on with the Republicans packing the Court now. It’s not constitutional what they're doing.” The question to me was in connection with a “fact check,” and asked, “Is what's happening right now -- the Republican push to install Amy Coney Barrett as the ninth Supreme Court justice -- in any way unconstitutional?” 

I now realize that I should have answered that the question was badly posed as a “fact check” one because treating a claim about the Constitution as implicating a fact – rather than an opinion, or a prediction, or an assessment of whether there are reasonable arguments one way, the other way, or both ways – is just a mistake. But I didn’t, and the result, I think, was a decrease in civic knowledge (if anyone pays attention to PolitiFact).

Here’s my initial response: “As usual with this sort of thing, the answer’s complicated because ‘unconstitutional’ can and does mean many things. (1) If ‘unconstitutional’ means that a court would find what the Republicans are doing to be inconsistent with the Constitution, the answer is no, no court would make such a holding. (2) If ‘unconstitutional’ means that what they are doing is inconsistent with what some people reasonably view as fundamental principles underlying the constitutional order, then yes, what they are doing is unconstitutional. The political uses of the word ‘unconstitutional’ are different from the purely legal uses, but both (or all) kinds of uses are well within the bounds of the way we -- ordinary people, politicians, and lawyers -- talk about the Constitution. I know that this isn’t the way you do things, but I personally wouldn’t award any Pinocchios to the statement.”

I responded to a follow-up question about my second point by identifying as a relevant “fundamental principle” that “the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.”

PolitiFact’s editors awarded a “False” to the Biden statement. The reason, supported by statements they got from Sai Prakash, Ilya Shapiro, and Robert Levy, appears to be that the word “unconstitutional” can be applied only to practices that are addressed by some express terms in the Constitution, supplemented with the proposition that everything not so addressed is to be determined by politics, understood to include sheer political power but not to include fundamental principles underlying the constitutional order. That reason and proposition are coherent and defensible (though wrong, in my view), but so are alternatives, and the labels “true” and “false” just aren’t apposite. (The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

So bored of this shit (a link to the old Balkin, not the new one).

I've said it a dozen times. In the past the ACLU took no position on the Second Amendment. It was the only principled response to questions that could only be resolved politically. 

If the labels "true" and "false", "constitutional" and "unconstitutional", aren't apposite, neither are the labels "sheer political power",  and "fundamental principles".

(The formulation of the question to me – “in any way” – ought to have caused the PolitiFact editors to reflect a bit more upon their choice.)

Shorter Tushnet: "It's their fault I can't explain things simply."

No trial lawyer would make Tushnet's mistake. A smarter politician wouldn't have made Biden's.

Academics don't take politics seriously. They're theologians defending their own ratiocinations as truths. Most law professors forget, if they ever knew, what it means to be a lawyer. They identify with judges. 

The university belongs, like the church and the military, to the social institutions that are situated at a considerable distance from democracy and adhere to premodern power structures. 

Complain all you want about the Senate and the electoral college; the lack of a federal secondary education system is a bigger problem. It's a country of 50 states, and Americans as a collective are the most powerful, uneducated, inarticulate, narcissistic people on the planet.

the political system should operate over time to ensure that overall all of our institutions are roughly in line with what the American people want.

I want to say Tushnet would do more good teaching high school or at a community college, or night school but he'd fuck that up too.