The book “No Democracy Lasts Forever, How the Constitution Threatens the United States” is by Erwin Chemerinsky, Dean of the University of California, Berkeley. The framers who wrote the Constitution made certain compromises to produce a document that the Constitutional Convention and the 13 original states would approve. As a result, its inherent flaws, including the creation of the Electoral College, a now-tainted Supreme Court, and an unrepresentative Congress, are now amplifying dangerous political polarization. It would seem as if amending the Constitution would solve some of the problems, but that has happened very rarely. Since its ratification in 1788, there have been 11,848 amendments proposed, although only 27 were adopted. Therefore, a constitution, written for a small, poor, and relatively inconsequential nation in the late 18th century now governs a large country of power and wealth in the world of the 21st century.
Chemerinsky believes the framers made three especially bad choices in drafting the Constitution. First, they distrusted democracy. The distrust of democracy is evident in the establishment of the Electoral College, which has led to presidents taking office despite losing the popular vote. It undermines the principle of one person, one vote, and allows for disproportionate influence by a few swing states.
Second, they explicitly protected the institution of slavery. The Three-Fifths Compromise, which counted enslaved individuals as three-fifths of a person for representation purposes, and the Fugitive Slave Clause, which mandated the return of escaped slaves, enshrined racial inequality and injustice into the very fabric of the nation.
Third, the vigorous protection of states’ rights has led to a fragmented system in which federal authority is weakened, making it difficult to implement nationwide policies effectively. This has resulted in significant disparities, depending on the state in which one resides, in such areas as voting rights, healthcare, and education.
Chemerinsky argues that these foundational issues contribute to the current state of political dysfunction and polarization. The Constitution, in its original form, was never intended to address the complexities and challenges of the modern era. But over the last fifty years, changes in society and our political system have further complicated the resulting problems. By the 1960s, the population of the United States began to shift such that some states gained disproportionally more residents than other states. When the Constitution was being written, the most populus state, Virginia, had twelve times the number of people in the least populous, Delaware. According to the 2020 census, the most populous state, California, has sixty-eight times the population of Wyoming. And yet, both California and Wyoming are each represented by two Senators, making the Senate even less democratic than before. At the same time, the Southern states left the Democratic coalition, making both political parties more ideological – and divided – than before.
In the 21st century, the Supreme Court consistently undermines our democracy. In particular, it gutted the Voting Rights Act of 1965 to allow states to restrict voting; struck down campaign finance laws to allow corporations and the wealthy to dominate the political process; and upheld gerrymandering of Congressional districts. When the Constitution was being written, the average life expectancy was 36 years; even in the 20th century, most Supreme Court judges retired or died in their sixties. Without term limits specified in the Constitution, justices can and do remain on the bench into their eighties. It’s not ageism to suggest there be a reasonable term limit, even if only to allow different presidents to make at least one or more appointments. Today’s Supreme Court ignores the voices and interests even of those most affected by the court’s decisions.
So it’s not surprising that the American government has lost the faith of its people as shown by annual surveys conducted by the Pew Research Trust. As of April 2024, only 22 percent of Americans said they trust the government in Washington to do what is right “just about always,” a modest increase from 16 percent in 2023, which was among the lowest measures in nearly seven decades of polling. However, the overall trend still indicates a significant lack of faith; trust in government has remained consistently low for decades, not exceeding 30 percent since 2007. No one, it seems, is satisfied. The survey found 35 percent of Democrats and Democratic-leaning independents trust the government most of the time, while only 11 percent of Republicans and Republican leaners express similar trust.
What’s to be done? Chemerinsky proposes several measures to address the issues he identifies in his book. He suggests a new constitutional convention could be empowered to replace the Constitution of 1787, similar to how the Founding Fathers replaced the Articles of Confederation. If constitutional reform is not possible, Chemerinsky believes Americans should consider forms of secession, including restructuring the United States like the European Union. This radical proposal is based on his belief that the divisions in the country may be greater than what unites it.
If we address what Chemerinsky rightly identifies as fundamental flaws in our current constitutional system, we might create a more equitable, functional, and durable democracy for the 21st century.
Mark Berg is a community activist in Adams County and a proud Liberal. His email address is MABerg175@Comcast.net.
Excellent article, but I see little to be hopeful about. A new constitution, secession… fundamental change is needed but in our fractious times agreement seems impossible.