The Devil You Know

Why some people don't want to shake the Constitution. By Luke Pickrell

During a recent interview on the Democratic Constitution Podcast, Yale professor Samuel Moyn made an astute comment, saying that many on the political center-left “feel that the Constitution, even with all its historical flaws, is like the devil you know.”  Another way of understanding the current center-left mindset is through Aziz Rana’s framework of the “constitutional bind,” in which people understand the Constitution is a significant problem but can’t shake a belief that the Constitution will also solve the problems it creates.  

Both ways of classifying current constitutional thinking — the “devil you know” and the “constitutional bind” — came to mind while reading two recent commentaries on Erwin Chemerinsky’s book, No Democracy Lasts Forever: How the Constitution Threatens the United States. 

The first was Louis Menand’s somewhat hyperbolically titled “Is It Time to Torch the Constitution?” in the New Yorker.  In it, Menand discusses Chemerinsky’s work alongside Paul Pierson and Eric Schickler’s Partisan Nation: The Dangerous New Logic of American Politics in a Nationalized Era.  Menand critiques Chemerinsky for playing a little too fast and loose with some of his statements and dings the book for style points, calling it “repetitive and hastily written.”  However, he cedes some ground regarding the Electoral College, the Senate, and the difficulty of solving constitutional problems through Article V:  “Still, Chemerinsky does make, forcefully, valid points.”  

Right now, no one with any pretense of political intelligence can defend the Electoral College, the Senate, or Article V with a straight face.  

The second commentary was Michelle Goldberg’s op-ed in the New York Times, “A Leading Law Scholar Fears We’re Lurching Toward Secession.”  Goldberg begins by mentioning the absolutely ridiculous but no less plausible scenario in which not the 160 million registered voters across the country, not 400,000 voters in small pockets of the swing states, but one man in Nebraska determines the outcome of the next presidential election.  Undoubtedly, many would agree with Goldberg that “This is a preposterous way to run a purportedly democratic superpower.” 

Goldberg then looks into the future and sees something bleak: another election in which Trump wins after losing the popular vote and another Republican-controlled Senate even if most people vote for Democrats.  The question, concludes Goldberg, “is whether America is capable of fixing [the mistakes made in 1787] before they destroy us.”  

Menand and Golderg don’t have endearing things to say about the current political order.  Menand dings some of Chemerinsky’s claims but doesn’t deny the Constitution’s more problematic features.  Goldberg agrees with Chemerinsky that “because of the deep structural flaws in our Constitution, the union is more fragile than many assume” and “the idea of breaking it up no longer seems unthinkable.”  

Again, even many who argue against foundational changes to the Constitution, such as political analyst Yuval Levin and former House speaker Nancy Pelosi, are hesitant to embrace the entire document.  This wasn’t the case even a few years ago.  But now, the document’s flaws have become increasingly difficult to ignore.  Though critical of Chemerinsky and Moyn’s positions, scholar Jonathan Turley correctly identifies “a growing counter-constitutional movement that began in higher education and seems recently to have reached a critical mass in the media and politics.”

Still, neither Menand nor Golderg can endorse the call for a new constitution.  Goldberg admits that she lacks Chemerisnky’s faith that “if a group of men and women came together and had to draft a Constitution that they knew would have to be ratified by the country, they would come up with a better document than we have now.”  Feeling safer with the devil she knows, Goldberg retreats behind contradictory phrases, arguing, “While our Constitution has become a kind of cage, it’s also the only thing holding our country’s hostile factions together.” 

She continues:  “The paradox of our founding document is that it’s both an accelerant to authoritarianism and a bulwark against it.  The Constitution is the reason that Trump could again become president in defiance of the wishes of the majority.  But if that happens, the Constitution would be one of the few tools we have to restrain him.  Given our furious divisions, I’m skeptical that we could agree on a new and better one.”

You can almost see Goldberg’s internal battle playing out on the pages of her review.  On the one hand, she agrees with Chemerinsky that the Constitution is pushing the country toward disaster.  She’s also familiar with the work of Daniel Ziblatt and Steven Levitsky, who, after undergoing a dramatic change of mind similar to Chemerinsky’s, now argue that the Constitution empowers minoritarian movements like MAGA. 

On the other hand, Goldberg can’t quit the Constitution, arguing it could constrain Trump and that until we know something “better” will emerge from a rewrite (an impossible demand since humans can’t read the future), it’s best to stick with what we have. 

In his interview, Moyn likened losing faith in the Supreme Court to a 12-step recovery model.  The same analogy could be applied to kicking one’s faith in the Constitution.  Goldberg understands the Constitution’s power but, faced with such a daunting obstacle, lacks the faith, desire, or whatever you want to call it needed to imagine a new one.  

Still, admitting the problem is a crucial step toward change.

Menand is a different story.  He hasn’t admitted a problem — or rather, he knows there’s a problem but doesn’t blame the Constitution: “If there was anything the Framers all desired, it was a government that voters could trust.  Is it their fault if they failed, or is it ours?”  It’s a zinger of a line until one realizes Menand is simply passing the blame from our undemocratic political system (where it belongs) to everyday people who lack political power (where it doesn’t).  If only “really unhappy” people like Chemerinsky would stop blaming the Constitution for the problems they created and get to work doing — well, it’s unclear what Menand wants people to do. 

“A government under the complete control of a popularly elected majority,” warns Menand, “is just as dangerous as a government under the complete control of a guy on a horse.”  Again, this statement sounds profound until one realizes it’s a recycled talking point from 1787 that conjures up the specter of the tyranny of the majority.  It’s a prime example of fearmongering and “a meaningless cliche if there ever was one,” as author Daniel Lazare has repeatedly argued.  Menand’s witticisms belong in Turley’s latest piece, where he laments “an explosion of books and articles laying out a new vision of ‘democracy’ unconstrained by constitutional limits on majority power.”  

In fact, majoritarianism is precisely what we need — not the authoritarian majoritarianism of the Jim Crow South (which our federalist Constitution empowered), but the liberal rights majoritarianism found in Nordic democracies.  Truly democratic political systems have the best records of protecting individual rights because, unlike the US, they are based on the principle of universal and equal rights. (Best, but not perfect: over the last 30 years, non-citizen immigrants have become a serious problem in the Nordic countries, where they are often denied the same rights enjoyed by citizens). 

Menand might choose the devil he knows, but unlike Goldberg, he isn’t caught in much of a bind because he doesn’t believe the Constitution is all that demonic.  Democracy is dangerous, he argues, and there’s little reason to think that “changing the software would actually make for a healthier politics.”  

Despite saying that “The Framers really have us in a box,” Menard concludes his review by arguing that something other than the Constitution is “clearly” to blame for what’s happening.  I look forward to a follow-up explaining the source of the problem.  Until then, the points made by many constitutional critics, including Goldberg, are far more persuasive than those of Menard. 

However, we shouldn’t limit ourselves to deciding between the positions of a small group of academics and pundits.  The US needs a political movement for democracy that builds on our country’s best moments — including Reconstruction, the struggle for women’s suffrage and labor rights, and the Civil Rights era.  We need a movement that sets its sights on the Constitution, the loadstone of our current political order. 

“[W]hen people are unhappy with the way the political system is working,” writes Menand, “they tend to blame one of two things: the Constitution or the Supreme Court.”  And they should.