The Only Constant is Change
Luke Pickrell discusses Erwin Chemerinsky's book, "No Democracy Lasts Forever: How the Constitution Threatens the United States"
Erwin Chemerinsky is the dean of the UC Berkeley School of Law, one of the most prestigious law schools in the country. His most recent book is No Democracy Lasts Forever: How the Constitution Threatens the United States. The book's main idea, which suggests that a new constitution is necessary to preserve U.S. democracy, has gained significant attention. Major platforms such as The New York Times, MSNBC, The Los Angeles Times, and The Guardian have published reviews and invited Chemerinsky to speak. Jennifer Szalai’s review in the Times is particularly valuable because it detects Chemerinsky’s evolving opinion of the Constitution from 2018 to the present, noting that six years ago, he “still seemed to place considerable faith in the Constitution, pleading with fellow progressives in his book ‘We the People’ ‘not to turn their back on the Constitution and the courts.’” As I explained before, Steven Levitsky and Daniel Ziblatt, authors of Tyranny of the Minority, experienced a similar change of heart during the same period.
Elon Musk provided significant publicity for Szalai and Chemerinsky when he tweeted the Times review with the caption, “They want to overthrow the Constitution." Conservative television host Laura Ingraham added, “Does the NYT hate the Constitution? Of course it does.” Family and friends have also directed me to reviews. Overall, it's safe to say that the book is riding a wave of attention.
No Democracy Lasts Forever concisely presents the facts of our constitutional bind. Here’s a selection.
Population shifts make the Senate’s unamendable two senators from each state rule impossible to ignore.
Thanks to the Electoral College, states with only 22 percent of the country’s population could theoretically choose the president — a fact that “cannot be reconciled with the most elementary notion of democracy, that the winner of an election governs.”
Our winner-take-all system means most votes have “absolutely no effect on the outcome of the election.”
The Supreme Court has consistently invalidated crucial federal laws in the name of federalism.
Nowhere does the Constitution “even hint” that the federal government must require equal protection under the law.
Gerrymandering distorts House races and consistently leads to Republican overrepresentation in the House. The For the People Act aimed to outlaw racial and political gerrymandering in drawing House districts. The bill passed the House in 2021 but was blocked by a Republican filibuster in the Senate.
Filibusters are so ubiquitous in the contemporary Senate that sixty votes, rather than a simple majority, are necessary to pass all legislation except for budget matters.
If the states were to be allocated representation at a constitutional convention, the new constitution would likely replicate some of the existing document's worst features, such as retaining the Electoral College and maintaining equal state representation in the Senate.
It’s incredibly hard to amend the Constitution. Only seventeen amendments have been added since the Bill of Rights in 1791, two of which were to create and repeal Prohibition.
Chemerinsky presents no groundbreaking information or perspectives. Daniel Lazare has long argued that the U.S. needs a new constitution, “we the people” contradicts what comes later, population shifts make the Senate especially egregious, an Article V convention would be undemocratic, and the current Constitution’s “self-legalization” in 1787 is still relevant. Robert Dahl long ago compared the Constitution to other countries and found it remarkably deficient. Levitsky and Ziblatt explained that checks and balances have given a Republican minority a disproportionate advantage in all branches of government for decades. Michael Kammen, Sanford and Cynthia Levinson, and Aziz Rana have probed America’s fetishistic relationship to the Constitution (and would likely take issue with Chemerinsky's assertion that Americans have always loved the framers’ creation). Rana, in particular, has examined the rise of constitutional loyalty as an intentionally created “civic religion” in the unique (and arguably non-replicable) context of Cold War imperialism and postwar capitalism. Long before any of the above names were around, Radical Republicans like Thaddeus Stevens and socialists like Eugene Debs and Allan Benson were demanding that power be stripped from the Senate, Supreme Court, and President and given to the House.
The noteworthy point is that most of the viewpoints mentioned above are now being expressed by the dean of a prominent law school, with a few exceptions. Chemerinsky agrees with the criticisms Dahl and the Levinsons put forth regarding the undemocratic nature of the Electoral College and Senate. He shares the view of Levitsky and Ziblatt that the Constitution empowers a reactionary minority and impedes necessary change. Like Rana, he is concerned about America's unquestioning devotion to the framers' creation. Surprisingly, Chemerinsky also agrees with Lazare (and Michael Klarman) that it is unlikely that the Constitution's issues can be resolved through Article V and that considering a process outside the article's state-centered (read: undemocratic) confines is essential.
No Democracy Lasts Forever isn’t perfect. As is all too common, Chemerinsky insists on calling the U.S. a democracy despite all the admitted flaws. The framers abhorred democracy… but the U.S. has always been a democracy. The Senate has always been undemocratic… but the U.S. has always been a democracy. Apparthaied existed in the South until the 1960s… but the U.S. has always been a democracy. Chemerinsky says that if Trump becomes president while losing the popular vote again, it will be impossible to call the U.S. a democracy. But why were 2000 and 2016 any different? Why’s the third time the charm? Chemerinsky also provides several inadequate definitions of democracy, such as "the winner of an election governs" and "voters choose their elected officials." However, he later contradicts himself by introducing a better definition: "One person, one vote."
Chemerinsky’s chapter-long critique of the internet and social media feels out of place and unfocused. We’re told that foreign interference in the elections, especially from Russia, should be taken seriously and that in a world of artificial intelligence and deepfakes, Congress should “adopt much stricter disclosure requirements so that people can know who is speaking and spending money in election campaigns.” The internet and social media “pose serious threats to democracy.” Yet, Chemerinsky admits that “there are no easy or even apparent solutions to these problems” and that “It is too soon even to know whether the net benefits of the internet and social media outweigh their harms.” UC Berkeley recently announced the nation’s first AI-focused law degree program, so I guess Chemerinsky and others think that internet and social media issues are just as important as creating a political system based on one person, one vote. I don’t feel the same way.
Chemerinsky also says some strange things about the Supreme Court. Why does “life tenure of federal judges makes federal courts uniquely suited for the protection of constitutional rights”? Why is it taken as common sense that “the Court is not expected to follow public opinion and is meant to enforce the Constitution even when it goes against the will of the majority”? Finally, why does Chemerinsky “support having a Supreme Court that is largely insulated from majoritarian politics”?
But at a certain point, one learns to pick one's battles. Chemerinsky’s conclusion — a new constitution is necessary, and those who fail to recognize this are “missing an essential element in understanding and ultimately solving the crisis” — is far more robust than others who have fumbled the question of what to call the U.S. (the all-time lowlight being Levitsky and Ziblatt’s call to “democratize our democracy”).
Finally, there’s the question of how Chemerinsky imagines his call for a new constitution will be realized. Last week, Berkeley Law announced the Edley Center on Law and Democracy, which aims to address the “current political climate” and train students to “guard American democracy.” If anyone imagines that a new university program is needed to address the problems presented in Chemerinsky's book, they are sadly mistaken.
Chemerinsky acknowledges that his book does not offer any apparent solutions. He doubts that the Supreme Court will suddenly change its stance or that state legislatures will vote against their own interests. Despite this skepticism towards existing political institutions as potential saviors, Chemerinsky proposes that Congress convene a constitutional convention with delegates appointed by the president. He enters self-described “radical” territory by suggesting that a draft constitution should be presented to the people as a whole for ratification and not the states, but that’s apparently as far as he’s willing to go. I doubt that Congress and a president from the Democratic or Republican Party will pave the way for a new constitution.
Despite these flaws, No Democracy Lasts Forever clearly reiterates the Constitution’s undemocratic nature and ends with a refreshingly straightforward vision of the future. “Americans will realize that the Constitution itself is endangering democracy and they will start thinking of replacing it,” writes Chemerinsky: “No constitution lasts forever. Someday the United States will be governed by a different Constitution, hopefully one better than the current one.” He continues: “Rather than pursue several individual amendments to fix what is broken in the current Constitution, it might be better to start over and adopt a new constitution.”
People in the U.S. have long discussed the need for democracy and fought for its realization. At times, these discussions and movements have included criticism of the Constitution. However, history demonstrates that focus on the Constitution can fluctuate and sometimes be absent for extended periods. No Democracy Lasts Forever is additional evidence that we are moving away from decades of short-sightedness and returning to a focused constitutional critique.