Jack Balkin, of Yale Law School, thinks that the answer to this question is yes. See his two papers on the topic, here and here, and a series of posts on his eponymous blog (here, here, here, and here). David Strauss, of Chicago, thinks that the answer is no. David will start off this month’s Head to Head debate Sunday evening, and their exchange will last through the middle of next week. This debate will be cross-posted on Balkinization.