Ultimately, what's constitutional doesn't depend on what judges say, or what Congress says, or any of that. Ultimately, the Constitution has as much or as little meaning as we, the people, allow it to have. Right now, there isn't much of a clamor to change things, so that'll have to change before the law can change, likely.
Bush's list of conservative judicial nominees has the dems and the activist/liberal judiciary running scared, and we all know why, since it's how they've shoved through liberal decisions that have turned the country upside down. (There is a clamor to change things, such as that infamous Ninth Circuit Court.) This is why democrat ex-judge Catherine Crier (sp?) went ballistic last night on Hannity and Colmes. She can read the writing on the wall.