Entrenching Good Government Reforms
CitationMark Tushnet, Entrenching Good Government Reforms, 34 Harv. J.L. & Pub. Pol'y 873 (2011).
AbstractThose concerned with enumerated powers, the Tenth Amendment, and limited governance have many questions about current trends in U.S. governance: Has the federal government grown too large? Is it doing too much? Has it transgressed lawful limits? Is the federal‐state relationship out of balance? Assuming that the federal government has gotten too large, what can you do about it? Or, more generally, what can you do if you think that the federal government is too big, or
too small, or is doing the wrong things, or is not doing what it should be doing? The obvious answer to the two latter questions is that you win elections. The winners decide what good governance is. There are, however, two problems with that answer. First, once you win an election, you can still lose the next one. As a result, you have an interest in figuring out some method to entrench your policy positions reasonably permanently. Second, some of the things you want to do may be precluded by the existing Constitution, though people obviously disagree about what those things are. The obvious remedy to both of these problems is to amend the Constitution. So to entrench your policy victories, you need to win elections first, and then you might also have to amend the Constitution.
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