“Cannot Be Reconciled With the Most Elementary Notion of Democracy”

Considering the facts, it is hard to imagine how honest people could fail to reach the same conclusions as Chemerinsky. Take the Senate. Thanks to the Connecticut Compromise that gave each state two senators regardless of population (a rule that is effectively impossible to change through Article V), states representing less than 20 percent of the population can produce a Senate majority, and forty-one senators representing as little as 11 percent of the population can kill any bill. This flagrant denial of equal suffrage, writes Chemerinsky, has become “impossible to ignore.”

Meanwhile, gerrymandering distorts House races and consistently leads to Republican overrepresentation. Three years ago, notes Chemerinsky, the For the People Act (designed to outlaw racial and political gerrymandering in drawing districts for the House of Representatives) was killed by a Senate filibuster.

Then there is the Electoral College, which “cannot be reconciled with the most elementary notion of democracy.” Under the college’s rules, not all votes are equal in determining who becomes the next president. California, for example, has fifty-four electoral votes for about 39.5 million citizens — one for about every 732,000 people. Meanwhile, the 577,000 people in Wyoming get three electoral votes, one for every 192,000 or so residents. And because in most states the winner gets all the Electoral College votes, most votes, Chemerinsky argues, have “absolutely no effect on the outcome of the election.”

The Electoral College also creates swing states, which means presidential candidates vie not for individual votes across the country but the precious college points in what few undetermined states exist. As a result, a “tiny universe” of voters, some 0.03 percent, can swing the elections. The statement “I’d only vote in a swing state,” common among disillusioned politicos in California or New York, would not make any sense in a country with direct elections.

This tiny universe of voters has more often than not determined the outcome of presidential elections. During the nineteenth and twentieth centuries, a president lost the popular vote but won the Electoral College only three times. The same phenomenon occurred twice between 2000 and 2016, and it almost happened again in 2020. No one is ruling out an Electoral College victory for Donald Trump in November even if he were to lose the popular vote, as seems likely.

Chemerinsky also argues that the Supreme Court routinely “undermines” democracy. The supposed benefits of life tenure are outweighed by its manifest drawbacks, including the creation of justices who are “seriously out of touch with the society they govern.” In his review of Chemerinsky’s book, Louis Menand reminds us that “Republicans have won the popular vote in only one of the last eight Presidential elections, [but] six of the nine sitting Justices have been appointed by Republican Presidents and are unremovable.” Furthermore, the John Roberts Court has an obvious agenda: “At a time when our country is more politically polarized than at any time since Reconstruction, the Court has come down solidly on one side of that divide — far to the right on it.”

Finally, the Constitution is almost impossible to amend. Only seventeen changes have been made since 1791, two of which were to create and then repeal Prohibition. The most recent amendment, ratified over thirty years ago, was first introduced in 1789. In the unlikely event that an Article V convention is organized, the new constitution would likely replicate the existing document’s worst features, like retaining the Electoral College and maintaining equal state representation in the Senate, since states, not people, would be allocated representation.

An Anti-Constitution Groundswell?

The arguments presented by Chemerinsky are alarming but far from groundbreaking. Daniel Lazare has long argued that the United States needs a new constitution; that the “We the people” clause contradicts what comes later; that population shifts have made the Senate especially antimajoritarian; and that an Article V convention to change the Constitution would itself be undemocratic. He argues further that because an Article V convention is both undesirable and unrealistic, we ought to remember how the Constitution came into being in the first place: through “self-legalization” in 1787, usurping what was then the nation’s legitimate governing document, the Articles of Confederation. The framers didn’t care about following the established rules — we shouldn’t either.

Robert Dahl long ago compared the US Constitution to that of other countries and found it remarkably deficient. Levitsky and Ziblatt have argued 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 all 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 nonreplicable) context of Cold War imperialism and postwar capitalism. And long before any of the above names were around, Radical Republicans like Thaddeus Stevens and socialists including Eugene Debs and Allan Benson were demanding that power be stripped from the Senate, Supreme Court, and president and given to the House of Representatives.

But even if the basic criticisms of the Constitution are old, the number of people talking about the problem is new. When the dean of UC Berkeley Law says we need a new constitution, agrees with some of the founding document’s most vocal critics, and gets a warm reception in the New York Times, it means something. Chemerinsky sides with Dahl and the Levinsons in claiming that the Electoral College and Senate are undemocratic and should be abolished.

He agrees with Levitsky and Ziblatt that the Constitution empowers a reactionary minority and impedes necessary change. And like Rana, he is concerned about America’s devotion to the framers’ creation. Perhaps most surprising, Chemerinsky agrees with Lazare that it is unlikely that the Constitution’s issues can be resolved through Article V and that considering a process outside that article’s undemocratic state-centered procedure is essential.

For a Real Democracy

No Democracy Lasts Forever has its problems. Like Dahl, Levitsky, Ziblatt, and most other liberal critics of the Constitution, Chemerinsky insists on calling the United States a democracy despite its egregious and admitted flaws. The framers abhorred democracy, he says, and constructed the Constitution accordingly. The Senate has always been undemocratic, he argues, and represents the interests of a numerical minority. Apartheid existed in the South until the 1960s, he states, and black Americans are still holding a bad check. Yet, somehow, the United States has always been a democracy.

Chemerinsky says that if Trump becomes president in November while losing the popular vote, it will be impossible to call the United States a democracy any longer. But why were 2000 and 2016 any different? Why is 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” — definitions that are compatible with many of the Constitution’s undemocratic features that Chemerinsky bemoans. Then he contradicts himself by introducing a better definition: “one person, one vote.” Lacking stable definitions, Chemerinsky ties himself in knots. If democracy is defined correctly — as one person, one equal vote — then the US has clearly never been a true democracy.

Chemerinsky devotes a short chapter to the uses and abuses of the internet and social media. He argues that foreign interference in US elections, especially from Russia, should be taken seriously in a world of artificial intelligence and deepfakes that make it hard for voters to know what is real and what is not. He encourages Congress to pass stricter disclosure requirements to help people understand how campaigns are waged during election season and warns that left unregulated, the internet and social media “pose serious threats to democracy.”

Yet the discussion of the threats posed by the internet and social media sits awkwardly in a work devoted to the Constitution’s antidemocratic features. Chemerinsky thinks that the internet and unregulated AI will interfere with the voting process by impeding people’s ability to make decisions based on accurate information. The actual case for this claim and its policy upshots remain unclear, however. Even he 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.”

More importantly, though, focusing on the potential threats of AI, social media, and so on to democracy seems to put the cart before the horse. So long as we don’t have a political system that respects the principle of one person, one vote, we don’t even have the resources to address issues surrounding AI and technology democratically. We should have our priorities straight. Winning a new constitution — having a democracy — has to come before figuring out how to improve voters’ access to information.

Also, Chemerinsky’s comments about the Supreme Court reveal an underlying discomfort with majority rule — a crucial component of any democracy, along with universal and equal suffrage. He argues that “life tenure of federal judges makes federal courts uniquely suited for the protection of constitutional rights.” He takes at face value 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.” He firmly supports a Supreme Court “largely insulated from majoritarian politics.”

Finally, there is the issue of creating a new constitution. Chemerinsky acknowledges that his book does not offer clear solutions, and he doubts that the Supreme Court will suddenly change its stance or that state legislatures will vote to lessen their states’ disproportionate electoral weight. Yet despite this skepticism toward existing political institutions as potential saviors, Chemerinsky proposes that Congress convene a constitutional convention with delegates appointed by the president. He enters what he himself calls “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 is apparently as far as he is willing to go.

Ultimately, the establishment of both the Democratic and Republican parties is loyal to our existing Constitution, and their corporate sponsors have a vested interest in defending a political order that checks popular challenges to wealth and power. It is not likely that politicians of either party have the desire or ability to call a constitutional convention, let alone organize an actual majoritarian process like a constituent assembly. The path forward is murky, but it does not run through the structure built by the existing Constitution. What is needed is a mass movement for a new political system, one that is genuinely democratic and so breaks out of the antimajoritarian straitjacket imposed by our founders.

Despite its flaws, No Democracy Lasts Forever reiterates the Constitution’s undemocratic nature and ends with a refreshingly straightforward vision of the future. 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 potent. “Americans will realize that the Constitution itself is endangering democracy and they will start thinking of replacing it,” he argues.

US history has not been lacking in discussions of the Constitution’s problems and in demands for a more democratic order. But critical attention on the document has ebbed and flowed over the centuries. No Democracy Lasts Forever is encouraging additional evidence that the United States is moving away from decades of neglect of the Constitution’s defects and entering a much-needed period of focused constitutional critique.