Richard, I agree with you. But isn’t the main problem with Balkinization that it doesn’t actually believe in republican democracy?
If Prof. Balkin believes the Democrats have too little power given their purported public support (a systemic critique that, not surprisingly, was unheard when President Clinton won the presidency with 42 percent of the vote and enjoyed majorities in both houses of Congress in 1992), doesn’t that mean he simply doesn’t accept the majority-rule outcomes of our system? How can it be, moreover, that the propriety vel non of a strategy like the filibuster hinges on the degree to which a party is unsuccessful in convincing the country of the rightness of its policy positions? “The worse we do the better we deserve to do” — makes the filibuster sound like affirmative action for underachieving social engineers.