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.
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.