Here’s a strange question: What if the greatest threat to the United States is our own Constitution?
Even if you think the American Constitution is the most brilliant political document in human history (and it arguably is), it was written in the late 18th century, which means it’s a product of a very different world than the one we currently inhabit.
America was an agrarian slave society at the time of the founding. The citizenry was confined to white, property-owning males. People lived in small, self-contained communities. All of these anachronisms are reflected in the Constitution, not just in the treatment of race but in the structure of the government itself. The Electoral College, the unrepresentative Senate, the Supreme Court — these are all deeply undemocratic institutions and they’re becoming unsustainable in an increasingly polarized society.
We could change the Constitution, of course, but there’s a problem. While the Constitution is open to revision, the truth is that it has become almost impossible to revise. The result is a political system that feels permanently stuck.
Erwin Chemerinsky is the dean of the law school at UC Berkeley and the author of a new book called No Democracy Lasts Forever: How the Constitution Threatens the United States. Chemerinsky’s book makes a pretty convincing case that we’re in trouble if we don’t find a way to seriously reform — or even rewrite — the Constitution.
So I invited him on The Gray Area to talk about how we got here and why he’s not sure there’s any viable path forward. As always, there’s much more in the full podcast, so listen and follow The Gray Area on Apple Podcasts, Spotify, Pandora, or wherever you find podcasts. New episodes drop every Monday.
This conversation has been edited for length and clarity.
Sean Illing
What are the biggest problems with the Constitution at this moment?
Erwin Chemerinsky
Right now I would say the Electoral College and two senators per state are what pose the greatest threat to democracy. But if you asked me what was the worst choice historically, I’d say it was what the framers did with regard to slavery and race — that has haunted this country from the beginning.
Sean Illing
There is, as you know, a pretty common defense of the anti-democratic features of the Constitution, which goes something like this: Democracy is great but we also need protections from the tyranny of the majority, we need a firewall against all the vulnerabilities of democracy in order to protect it from itself. Do you buy this argument?
Erwin Chemerinsky
Yes and no. The yes is that the Constitution is inherently anti-democratic. The Constitution is meant to limit what the majority can do at any point in time, and I believe in that. I don’t think it should be as difficult to change as the current Constitution, but I accept we should be governed by a document that’s more difficult to change than just any other statute or ordinance. I also believe in checks and balances. I think one of the good things in the Constitution to help prevent tyranny is the diffusion of power among several branches of government.
On the other hand, I don’t think the Electoral College helps to prevent tyranny. I don’t think the Electoral College is in any way a check on democracy. It’s just a terrible way of choosing a president. I don’t think two senators per state has anything to do with protecting our democracy. So my answer is yes, there are features in the Constitution to protect democracy and that’s a good thing, but the things that we’re talking about now, the Electoral College and the Senate, don’t in any way contribute to protecting democracy.
Sean Illing
Is there another advanced liberal democracy anywhere in the world that has equivalent institutions to the Senate and the Electoral College?
Erwin Chemerinsky
They’re unique to the United States. There’s not any other country in the world that has a popular election for its chief executive, in which a person who loses the popular vote can be chosen. In parliamentary systems there might be a way in which you can put together coalitions to make that happen, but nothing like the Electoral College and nothing like the United States Senate, where every state gets two senators regardless of the size of the state.
At the time the Constitution was written, the difference between a populous state like Virginia and the least populous state like Delaware was about nine to one. Today, the difference in population between Wyoming and California is 68 to one. In the last session of Congress, there were 50 Democrats and 50 Republicans, but the 50 Democratic Senators represented 40 million more people than the 50 Republican Senators. And the filibuster, which changed greatly and formed in the 1970s, makes it possible for a small minority of senators representing a small minority of the population to be able to block virtually any legislation.
Sean Illing
The Supreme Court, for obvious reasons, gets a lot of attention in your book. What is the Court supposed to be doing and what is it actually doing?
Erwin Chemerinsky
The Supreme Court is there to enforce the Constitution, to give a document written in broad language contemporary meaning. The Constitution is meant to limit what the government can do, the kind of check we were talking about before, and the limits of the Constitution only have meaning if they’re enforced, and that’s what the courts are about.
I think the current Supreme Court, for so many reasons, is itself a threat to democracy. Some of that has to do with specific decisions of the Supreme Court, like Citizens United v. Federal Election Commission, which allowed corporations to spend unlimited amounts of money on elections. Or Shelby County v. Holder, which gutted key provisions of the Voting Rights Act. Or Rucho v. Common Cause, which says that no federal court can hear a challenge to partisan gerrymandering, no matter how egregious. And I also think that the Hall of Shame is going to include Trump v. United States from July 1, 2024, which gives the president very broad absolute immunity from criminal prosecution for almost anything done in office.
Sean Illing
Is that decision about presidential immunity as bad as it sounds?
Erwin Chemerinsky
Yes, it’s that bad. The Supreme Court basically said that anytime the president is using a power that’s created by the Constitution or statute, the president cannot be criminally prosecuted. So if the president uses his power as commander-in-chief to call out the military to assassinate a political rival, that’s part of the president’s constitutional powers.
If the president says to the Justice Department, “I want you to prosecute somebody as retribution” — and this shouldn’t be hypothetical because Donald Trump has said, including at the debate, he wants to do that. If a president wants to sell pardons, since the pardon power is an official power under the Constitution, the president can’t be prosecuted. And the Supreme Court said explicitly that the motive of the president doesn’t matter. So the fact that the president is acting to get rid of a political rival or for retribution or for personal monetary gain, isn’t something to be considered.
Sean Illing
I think what’s happened here, and feel free to disagree, is that the Republican Party decided a long time ago that they were going to use one of the most undemocratic institutions in our system, the Supreme Court, to execute a political project without democratic support or accountability, which they have done, which means the Court is now a blunt political instrument, which is how we ended up with decisions like this.
Erwin Chemerinsky
The Supreme Court has always played the role that you attribute to it now. Everything you said about the current Court, conservatives would say about the Warren Court. Now, I agree with what the Warren Court was doing, finally ending apartheid in the country, striking down the Jim Crow laws, etc. I agree with what the Warren Court was doing in equalizing voting power by ending male apportionment of legislatures. I agree with what the Warren Court was doing for the first time, providing basic protections under the Constitution for the rights of criminal suspects and defendants. But everything you say about the court arrogating power to itself today is what conservatives said about the Warren Court.
Sean Illing
The argument against this Supreme Court, and the one I basically just made, is that it’s overstepping its bounds, but it sounds like you think that’s not quite right, that it’s more about the values driving it and the undemocratic consequences of its decisions.
Erwin Chemerinsky
The problem with the Roberts Court’s decision is that they’re based on values that are inconsistent with what the Constitution was about. Take the example of Trump v. The United States, absolute presidential immunity. I think that the framers of the Constitution made a value judgment that they didn’t want to create a king. They did not want to have royal prerogatives. But I also think in addition to being ideological, the problem with this court is also methodological. They embrace the view that the Constitution means what it did in 1787 or 1791 or 1868 when the 14th Amendment was adopted, which is a terrible way to approach the Constitution.
Sean Illing
President Biden just proposed term limits and an ethics code for the Supreme Court. Does that seem wise or doable?
Erwin Chemerinsky
I think an ethics code passed by Congress would be wise and doable. There was no ethics code for the Supreme Court until it adopted its own in November of 2023, and then it was a watered-down version compared to what applies to all other federal and all state judges. They took the word “shall,” which is mandatory, and made it “should,” which is advisory. They had no enforcement mechanism. And I think that the lack of an ethics code for the Supreme Court tarnishes not just that court, but all courts in the country.
In terms of term limits, I strongly favor 18-year non-renewable terms. I favored it for a very long time. My own view, unfortunately, is I don’t think that Congress can impose term limits, certainly not ones on current justices, by statute. I think it requires a constitutional amendment. The understanding of Article Three has always been that when somebody is confirmed for the Supreme Court, it’s their position for life unless they choose to resign. I don’t think Congress can change that by statute — I think it would take a constitutional amendment. A constitutional amendment could make it retroactive and apply it to current justices. I would certainly favor that.
Sean Illing
How would you triage all the reforms you think we need?
Erwin Chemerinsky
If I had a magic wand to change the Constitution, the most essential thing I’d do is eliminate the Electoral College and eliminate two senators per state. I don’t think the path this country is on is sustainable in the long term. I hope I am wrong. I’ve never before written a book where I say at the end that I hope everything that I’ve said in this book is incorrect, but I think there’s a widespread sense on both the left and the right that there’s a crisis facing our democracy, and the question is, where will it go? Will we drift toward authoritarianism? I was chilled to see J.D. Vance, now the Republican candidate for vice president, saying that what the country should emulate is Hungary and Viktor Orbán, an autocrat.
As I say on the first page of the book, no democracy lasts forever. Democracies are there until they’re not. But my hope is that when the country sees that abyss, it will recoil and it will do the things to fix it. And so I don’t think there’s going to be a new constitution next year or maybe in my lifetime, but it’s time to begin thinking of one that corrects these problems.
In the shorter term, there can be things like an ethics code for Supreme Court justices passed by Congress. Congress can eliminate partisan gerrymandering for congressional seats — that just takes a statute. Congress can get rid of the filibuster. There are several things that can be done without a constitutional amendment or a new constitution.
Sean Illing
I don’t know how these things get done because, as you admit, doing so will have explicit advantages and disadvantages for each side, and so you can’t get enough consensus to do anything.
Erwin Chemerinsky
I fear you’re right, though I also believe that there are solutions, and again my hope is that if the country faces the abyss, they’ll recoil and come up with solutions. But I want to strongly agree with what you say that the Constitution assumes that those who occupy office will act in good faith and follow certain norms.
Let me give you a couple of examples. Throughout American history, when there’s been a vacancy on the Supreme Court, even late in a president’s term, the president’s nominees have been appointed and confirmed by the Senate. There was a vacancy in 1956, just a month before the presidential election, President Eisenhower named a Democrat, William Brennan, and the Senate confirmed.
What we saw instead was when Antonin Scalia died in February 2016, Mitch McConnell, the Senate Majority Leader, said, “We’re not going to hold hearings and we’re not going to consider whoever President Obama nominates. We shouldn’t let a lame-duck president pick a Supreme Court nominee.” Nonetheless, when Ruth Bader Ginsburg died in September of 2020, the Republicans rushed through and confirmed Amy Coney Barrett just days before the presidential election.
Throughout American history, until January of 2021, incumbent presidents who lost left the White House. It started with John Adams in 1800. It continued through George H.W. Bush in 1992, but Donald Trump did everything he could to subvert the election. These are examples of norms that have to be followed and they’ve been transgressed.
Sean Illing
You pose an interesting question early in the book: Was it better to have one nation with a constitution that institutionalized slavery, or would it have been better for the country in 1787 to just split into two smaller countries?
Erwin Chemerinsky
I ask my students this every time I teach constitutional law, whether they’re law students or undergraduates. From the perspective of hindsight, I ask if it would’ve been better to have two countries, a country that repudiated slavery and a country that accepted slavery? I think the reason that those who strongly favored abolition thought one country was better is they thought that slavery would naturally fade away. That didn’t happen. Slavery dominated every political issue up until the Civil War.
As we sit here today, I think it’s much better that the country stayed together and that we continue to be one United States. On the other hand, I worry that if we don’t fix the flaws, there will be great pressure toward secession, not next year but in the longer term, because I think the hard question is: Is what unites us as a country greater than what divides us as a country?
I’ll make what I think is a very frightening prediction: If Donald Trump wins in November of 2024 and the Republicans take both houses of Congress, we will hear the first serious discussion of secession since the Civil War. I think there will be discussion of Calexit. I don’t think much will come of it now, but from that discussion, the longer-term could be quite cataclysmic changes. I am not advocating it. I am not predicting that it’s imminent, but I do think the divide between the red states and the blue states is so great that people will ask if it still makes sense to be one country.
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