All republican governments live in fear of the man on the white horse. A republican government, like ours, is a system of rules designed to prevent any one person or faction from hijacking the democratic decision-making process. The person on the white horse doesn’t respect the democratic decision-making process, is not a product of that process, and has no stake in its survival. The person on the white horse rides into town and says, Who needs rules? Let me take care of everything. And the public, glad to simplify life, or possibly dazzled by the promise of a glorious future, lets the rider take charge. Rules that no one enforces are just so much paper.
But republican governments also live in fear of the man on the street. Political decisions can’t be entrusted entirely to the will of a bare majority of voters, in part because voters tend to be relatively uninformed about politics, but, more important, because nothing prevents majorities, once in power, from oppressing minorities. A government under the complete control of a popularly elected majority is just as dangerous as a government under the complete control of a guy on a horse.
If you try to compose a list of rules that insulate the government from both evils, the autocrat and the mob, you get a pretty complex document. You get a document that hedges every grant of political power with conditions that make the power hard to exercise, including the power to alter the document. You get, in fact, the Constitution of the United States.
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The Constitution is 4,543 words long. That’s roughly four magazine pages, about the length of this article (though not nearly as enjoyable). You can read the whole thing in fifteen minutes. Yet this brief text—plus its still operative amendments, another 3,112 words—underwrites our entire system of government. That system currently employs, on national, state, and municipal levels, more than nineteen million people. All those employees represent “the state,” and are subject to the Constitution’s rules about what government can and cannot do.
The individual states have their own constitutions, and municipalities have their own charters, but nothing in them may contradict what is in the federal Constitution, because, in our version of republicanism, the authority of the federal Constitution is absolute. We know that this is so because the Constitution says it’s so, in the “supremacy clause” of Article VI: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof . . . shall be the supreme Law of the Land.”
Everyone agrees that, if the Constitution says you can’t do it, it can’t be done. The question is: Who tells us what the Constitution says you can and cannot do? And the answer is: the Supreme Court. The Supreme Court is the ultimate authority on the ultimate authority. That’s a lot of authority for nine unelected individuals to have.
This is why, when people are unhappy with the way the political system is working, they tend to blame one of two things: the Constitution or the Supreme Court. They argue either that the Constitution is flawed and needs to be changed, or that the Court is misinterpreting the Constitution and needs to be changed. When people are really unhappy, they argue both.
Erwin Chemerinsky is really unhappy. Chemerinsky is the dean of the law school at the University of California at Berkeley. He is highly respected in academic circles as a scholar of constitutional law, but his name got recognition in much wider circles last spring, after he hosted a dinner for law students at his house and one of them produced a microphone and an amplifier and started giving a pro-Palestine speech. Chemerinsky’s wife, Catherine Fisk, also a Berkeley law professor, grabbed the student and tried to wrestle the microphone away from her. In a video someone recorded (there’s always a video, somehow), Chemerinsky can be heard shouting, “This is my house! The First Amendment doesn’t apply!”
This was particularly awkward because, in 2017, Chemerinsky had published “Free Speech on Campus,” a book that urged expansive protections for student speech. Berkeley is a public university, and its agents may not—the Constitution says so!—censor speech because of its content. Was the student with the microphone being silenced by state actors (Chemerinsky and Fisk) because of what she was saying? Or is a dinner party for students (paid for by the university) at a professor’s home a private forum outside the reach of the First Amendment? These became matters of much debate. Either way, it is never a good idea to grab a student.
Chemerinsky is a political progressive and a lively thinker. In 2014, he published a book titled “The Case Against the Supreme Court.” This was a blame-the-Court book. In it, he argued that “the Court has frequently failed, throughout American history, at its most important tasks, at its most important moments.”
He pointed out that from the eighteen-nineties to 1937 the Supreme Court struck down some two hundred state and federal laws regulating business, many intended to protect workers’ health and safety, others to pull the country out of the Depression. In 1927, the Court upheld the enforced sterilization of persons diagnosed with mental retardation. In 1944, it affirmed the constitutionality of the Roosevelt Administration’s policy of rounding up Japanese Americans and sending them to internment camps.
As everyone knows, between Plessy v. Ferguson, decided in 1896, and Brown v. Board of Education, decided in 1954, and in spite of the Fourteenth (equal protection) and Fifteenth (right to vote) Amendments, the Court barely lifted a finger to end segregation and disenfranchisement on the basis of race—not that Congress or the executive branch did much, either. The Court didn’t rule that the Constitution forbids discrimination on the basis of sex until 1971.
Though Chemerinsky approved of the Warren Court’s decisions on segregation (Brown), districting (one man, one vote), and defendants’ rights (Miranda v. Arizona and Gideon v. Wainwright)—he has represented criminal defendants before the Supreme Court himself—he maintained that the Warren Court nevertheless “did so much less than it needed to and should have done, even in the areas of its greatest accomplishments.” And, as you would expect, he was scathing about the Roberts Court, which seems bent on undoing much of the Warren-era progress on rights and business regulation. In 2022, Chemerinsky published a critique of the dominant judicial philosophy on the Roberts Court called “Worse Than Nothing: The Dangerous Fallacy of Originalism.” He likes fire-alarm titles.
Chemerinsky had little to say that was critical of the Constitution, and he praised the difficulty of amending it. Something like 11,848 constitutional amendments have been introduced in Congress since 1789. (You can examine them on Jill Lepore’s Amend Project Web site.) Congress has ratified only thirty-three by the required two-thirds majority, and only twenty-seven were then ratified by three-quarters of the states, becoming law. The first ten amendments, the Bill of Rights, were written by James Madison to help the Constitution secure ratification, so they are essentially part of the Constitution itself, and two of those which followed are the prohibition amendment and its repeal—which nets fifteen amendments in two hundred and thirty-three years.
Isn’t this undemocratic, sticking us with a dead-hand document that we can’t change when the times do? Not at all, Chemerinsky explained. The reason the Constitution was made difficult to amend is the tyranny-of-the-majority problem. In times of crisis, majorities may want to suspend individual liberties, and the Constitution makes it very hard for them to do this (which doesn’t mean that it has never been done). “The Constitution is society’s attempt to protect itself from itself,” Chemerinsky concluded.
That was then. Chemerinsky’s new book is “No Democracy Lasts Forever: How the Constitution Threatens the United States” (Liveright), and the difficulty of amending the Constitution is Exhibit A. “The framers of the Constitution went too far in preventing amendments,” he now argues. As a result, we are stuck with a set of rules which not only makes addressing political problems harder but is itself responsible for many of the political problems we need to address. The Constitution’s “very existence as a largely unchanged document has become a sledgehammer wielded by a minority to prop up a system that engenders polarization and festering national discord,” he says. Chemerinsky doesn’t just want to amend the Constitution, either. He wants us to throw it out and come up with a new one.
You don’t publish a book called “No Democracy Lasts Forever” for style points, but, even allowing for that, it’s repetitive and hastily written. The haste would matter less if it did not lead to misleading and inaccurate assertions. For example, Chemerinsky tells us that, according to a poll taken in 2023, “only four percent of those surveyed said that the American political system ‘works well.’ ” But that’s not what the survey said. In the poll, administered by the Pew Research Center, four per cent of respondents said that the American political system is working “extremely or very well,” and twenty-three per cent said it was working “somewhat well.” That leaves a lot of Americans who think it’s not working well, but not ninety-six per cent.
Elsewhere, to illustrate how the Roberts Court has abandoned the deference previous Courts showed to democratically elected legislatures, he informs us that, from 1937 to 1995, the Court “did not strike down a single federal law for exceeding the scope of congressional power or infringing states’ rights.”
I’m not sure what this can possibly mean. The Court struck down dozens of federal laws between 1937 and 1995. The grounds differed, of course. Sometimes the Court ruled that the law violated a right, like the First Amendment right to freedom of speech or the Fifth Amendment right to due process, which would plainly exceed “the scope of congressional power.”
What Chemerinsky may have in mind are cases in which the Court ruled that Congress had exceeded the powers enumerated in Article I, which lays out the rules for what Congress can and cannot do. But that doesn’t make sense, either, because there were many Article I cases between 1937 and 1995 in which the Court struck down laws.
Even if he simply worded the sentence badly and meant that the Court did not strike down a federal law specifically because it infringed on states’ rights, the claim is still incorrect. In Oregon v. Mitchell (1970), the Court threw out parts of the Voting Rights Act amendments for usurping the right of states to administer elections, and in National League of Cities v. Usery (1976) it struck down federal laws regulating labor markets for state employees (though the decision was overruled in 1985). “Did not strike down a single federal law” is a hyperbolic way to make a legitimate point, which is that, over the past thirty years, constitutional jurisprudence has come to tilt toward states’ rights.
A principal target in the new book, unsurprisingly, is the Electoral College, defined in Article II and the Twelfth Amendment, which makes it possible for a candidate to lose the popular vote and still be elected President—as happened with George W. Bush, in 2000, and Donald Trump, in 2016, and as nearly happened with Trump again in 2020. Only in America is such a thing possible. Chemerinsky warns us that, because of this constitutional design flaw, “in theory, states that are home to only twenty-two percent of the country’s population can choose the president.”
That does sound pretty undemocratic. What Chemerinsky actually means, though, is that someone could be elected President despite winning only twenty-two per cent of the popular vote, not by carrying states with twenty-two per cent of the population. And how could that happen? If a candidate were to win each of the thirty smallest states by exactly one vote and not receive a single vote anywhere else in the country—something that is likely to occur around the time the last monkey finishes typing “Hamlet.” It’s a meaningless statistic.
Still, Chemerinsky does make, forcefully, valid points. His complaint about the Electoral College is hardly a new one—the loser of the popular vote was also elected President twice in the nineteenth century—but he’s probably right that, in a highly polarized electorate like ours, we are apt to see this happen fairly regularly. The problem is not so much that the wrong person wins as that the public loses faith in the process. Trump has already had some success at delegitimizing an election in which he lost the popular vote by a little more than seven million, historically a pretty large margin. Imagine if he had won the popular vote and lost the election.
Chemerinsky cites a statistic often produced to illustrate the anti-democratic effect of the formula the Constitution uses to assign Electoral College votes—one for each of a state’s congressional seats plus one for each of its two senators. He points out that, as a consequence, California has one electoral vote for every 709,624 residents and Wyoming has one for every 193,793 residents. (You don’t see it remarked quite as often that Texas has one electoral vote for every 790,251 residents and Vermont has one for every 215,821 residents. Nobody feels sorry for Texas.)
On the other hand, the District of Columbia had no electoral votes at all until 1961 and still has no senators, despite the fact that more people live there than in Wyoming or Vermont. D.C. does get an honorary three electoral votes, hardly just compensation for the lack of representation in the Senate.
The composition of this chamber is another anti-majoritarian feature of our system. The deliberation at the Constitutional Convention of 1787 over the makeup of the Senate put the Framers’ “man on the street” anxiety on full display. The undemocratic elements of the Constitution can seem shocking by current standards, but the Framers grew up as Colonial subjects of a hereditary monarchy, most European nations in 1787 were hereditary monarchies, and heredity had been the principle of succession, de jure and de facto, in many societies for much of human history. Governments “deriving their just powers from the consent of the governed” was a fairly novel idea. It is not terribly surprising that the Convention looked for ways, consistent with the proposition that “all men are created equal,” to establish a governing class.
The Constitution therefore gave state legislatures the power to appoint senators (which is why, in Illinois, Stephen A. Douglas defeated Abraham Lincoln in the Senate race in 1858). This was partly a way of creating a legislative body less dependent on the popular will. Making the Senate a popularly elected body did not happen until 1913 and required a constitutional amendment (the Seventeenth).
The two-per-state rule was also believed to be necessary to get the smaller states to sign on to the finished product—though Madison did not see this rule as a benefit to the slave states, which is how it is sometimes interpreted. As he pointed out at the Convention, Northern states would do better on the two-per-state system because they outnumbered Southern states, eight to five.
And the rule looks more like a giveaway now than it did then. As Chemerinsky says, “smaller” is a relative term. At the time the Constitution was written, Virginia, the most populous state, had twelve times the population of Delaware, the least. According to the 2020 census, California’s population is now sixty-eight times as large as Wyoming’s. Yet they have equal representation in the Senate. Since 1998, Republican senators have never represented half the population, but they have been the Senate majority half that time. The stupidest part of the whole thing is that states are complete fictions. Their borders have changed many times, both before and after their admission to the Union. One day you’re a citizen of Massachusetts, and the next day you’re a citizen of Maine. Why should the system of representation honor that?
Chemerinsky’s other reform proposals include abolishing the filibuster, under whose “Alice in Wonderland” rules forty-one senators representing fifteen per cent of the American people can block most legislation; ending partisan gerrymandering, a computer-aided practice that the Supreme Court has recently washed its hands of, not for the first time; increasing the size of the House of Representatives; and eliminating life tenure for federal judges and Supreme Court Justices, something no other democracy grants.
Life tenure, which is guaranteed by the Constitution, has emerged as a hot-button issue because, although Republicans have won the popular vote in only one of the last eight Presidential elections, six of the nine sitting Justices have been appointed by Republican Presidents and are unremovable. The Framers were possibly less concerned about this particular dead-hand problem because life expectancies were so much shorter in the eighteenth century. Clarence Thomas was appointed to the Court in 1991, and he could easily serve forty years, as I’m sure he has every intention of doing.
Chemerinsky also thinks that the Internet, and especially social media, must be policed. “Future elections will be decided because of false speech circulated over social media,” he predicts, although, as something of a First Amendment absolutist himself, he has trouble coming up with concrete suggestions for prohibiting the circulation of misinformation.
Among the various reforms he proposes, changing the two-senator rule is probably the steepest hill to climb. The Constitution expressly forbids changing it, which means that, to make representation in the Senate proportional, the Constitution would have to be amended twice—first to repeal the section of Article V providing that “no state, without its consent, shall be deprived of its equal suffrage in the Senate,” and then to deprive the states of equal suffrage in the Senate.
It might be possible to pass those amendments by popular vote, but that is not how ratification works. It requires the approval of three-quarters of the states, not three-quarters of the voters, and states cannot be expected to voluntarily reduce their representation in Congress. So we would need another amendment to suspend the three-quarters rule. . . . The Framers really have us in a box.
Apart from abolishing life tenure for federal judges, most of the other items on Chemerinsky’s must-do list—eliminating the filibuster, and so on—are not prohibited by the Constitution and therefore do not require amendments. They can all be achieved, in principle, by passing a law. But the status quo blocks such reforms in other ways. The anti-majoritarian elements of the Constitution, plus the filibuster and partisan gerrymandering, allow a minority to control the political process, and that minority can keep reforms from ever getting voted on. Hence Chemerinsky’s call for a new constitutional convention. Let’s start the whole thing over from the top.
Is it really that bad? Is our political system in such a uniquely terrible place? Paul Pierson and Eric Schickler think that it is, and they spell out their reasons in “Partisan Nation: The Dangerous New Logic of American Politics in a Nationalized Era” (Chicago). To be fair, not a lot of style points here, either. The book is a kind of verbal thicket you have to fight your way through.
Pierson and Schickler, too, blame the Constitution, not so much because it was misconceived from the start as because it is now past its sell-by date. For most of American history, although there were some rough patches, the Constitution worked O.K., they think, but it “was simply not designed to meet the challenges we now face.” They compare the system of government the Framers built to “aging and rickety software.”
What Pierson and Schickler are concerned with is not political strife, of which there has been plenty and which democracies are designed to accommodate. It’s polarization, the emergence of two ideologically rigid political parties intolerant of compromise. Compromise is crucial to the system the Constitution designed. That system provides many veto points—“checks and balances”—that are intended to force competing interests to make compromises. “Ambition must be made to counteract ambition,” as Madison put it in Federalist No. 51.
The Constitution itself is the product of compromise. Thomas Jefferson (who was not present at the Convention; he was in Paris, not Philadelphia, normally a good trade-off, but in this case not) was an ideologue. But Madison was a pragmatist. He was trying to design a system that worked, and working systems require buy-in, and buy-in must be bought by giving something up.
Still, Madison could see that the Constitution left the door open for the rise of what he called a “faction,” which he defined as “a number of citizens, whether amounting to a minority or majority of the whole, who are united and actuated by some common impulse of passion, or of interest, adverse to the rights of other citizens, or to the permanent and aggregate interests of the community.” In other words, either a movement led by a man on a white horse or a tyranny-of-the-majority regime.
What prevents groups like those from taking power, Madison explained in Federalist No. 10, is not law. It’s geography. Building a majority requires compromise among different groups, all of which want their rights and interests protected in exchange for their coöperation, and the United States is so geographically large and dispersed, with so many local and regional issues at play, that a single-issue faction isn’t going to be able to accrue enough national power to take over the government. “The influence of factious leaders may kindle a flame within their particular States,” Madison wrote, “but will be unable to spread a general conflagration through the other States.”
Pierson and Schickler’s argument is that Madison’s solution no longer works. This is not just because the Internet has made the notion of “geographic dispersion” obsolete. It’s also because the nature of politics has changed.
“All politics is local” is a slogan commonly attributed to Tip O’Neill, the Massachusetts congressman and House Speaker, although people used it before his time. Pierson and Schickler think that this was once true, and that mediating institutions, like state political parties and even political bosses, could demand compromises in exchange for support of the national ticket. They add to this category labor unions, local media, lobbies, and regionally based interest groups—small-constituency entities that all used to operate as countervailing forces to the national parties. But today, Pierson and Schickler say (and they are not the first to say it), all politics is national, and all national politics is partisan. Even the media occupy two distinct political ecosystems.
The phrase they use for this phenomenon is the “stacking of cleavages.” There were always two sides, “cleavages,” on any political issue, but the cleavages were distributed across the ideological spectrum. There were Republicans who were liberal on, for example, the environment, and Democrats who were hawkish on foreign policy. Those intraparty fissures could be damaging. Vietnam split the Democrats in 1968. Culture-war extremism hurt the Republicans in 1992. But Pierson and Schickler think all that was good. Cleavages are what prevent ideological monoliths from forming.
Unless they stack. Unless being a Republican means automatically adopting a certain position on every issue, being a Democrat means adopting the opposite position on every issue, and being either a Republican or a Democrat means regarding the other party as an existential threat to democracy. The parties today are dominated by the extremists. Bipartisanship is treason.
Pierson and Schickler are in favor of constitutional reform, but they worry that the existing system gives small states disproportionate power to foil amendment efforts and that proposed amendments would probably just add more cleavages to each party’s stack. Their own reform proposals are mainly about re-democratizing the electoral process: automatic voter registration, a ban on partisan gerrymandering, the admission of Puerto Rico and the District of Columbia as states, and the adoption of nonpartisan primaries and ranked-choice voting, practices that are already in place in a few states.
But what about a new constitutional convention? If we convened one, would we get a better set of rules? In fact, writing a new Constitution has been suggested many times before, and the Constitution even makes provision for a constitutional convention. One notable writer supporting the idea is Sanford Levinson, of the University of Texas School of Law, who made the case in “Our Undemocratic Constitution,” published in 2006. He’s a liberal, and holding a constitutional convention may seem like a liberal idea, a response to the politicization of the federal judiciary under Trump and Mitch McConnell. But conservatives have made their own plans for such an undertaking: an outfit called the Convention of States calls for a constitutional convention to propose amendments “that will impose fiscal restraints on the federal government, limit its power and jurisdiction, and impose term limits on its officials and members of Congress.” Its supporters include characters like Trump’s Fox alter ego Sean Hannity and Mark Meadows, Trump’s former chief of staff, who is under indictment in Georgia and Arizona. It’s also backed by a number of current and former Republican lawmakers, including Jeb Bush. Under the terms of Article V of the Constitution, three-quarters of the states may call a convention, and the Convention of States claims that nineteen states have already endorsed its petition.
One of the Founders, at least, worried about the dead-hand problem. “The earth belongs in usufruct to the living,” Jefferson wrote to Madison in 1789, the year the Constitution was ratified. “The dead have neither powers nor rights over it.” Jefferson thought that there ought to be a new Constitution every nineteen years. Now that would have been interesting!
The question is whether changing the software would actually make for a healthier politics. Lack of trust in government seems to be one of the main factors behind American political polarization, but trust levels here are not much different from trust levels in comparable countries. Voters in Japan, France, Korea, Australia, Israel, and the United Kingdom all report low levels of trust in government. Clearly, something besides the U.S. Constitution is responsible. 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? ♦
