Minority report

In December 2022 Donald Trump blithely called for the “termination” of the Constitution, a comment that predictably triggered outrage and disbelief. In No Democracy Lasts Forever: How the Constitution threatens the United States, Erwin Chemerinsky suggests that the former, and possibly future, president might be on to something.

Chemerinsky, the dean of Berkeley’s law school and a prominent constitutional scholar, is hardly a Trump supporter. But his highly readable and timely book makes abundantly clear how the Constitution, far from serving as a bulwark against democratic backsliding, is contributing to the current political woes in the US, of which Trump is both a symptom and an accelerant. He is not alone in reaching this conclusion. In Tyranny of the Minority (TLS, November 3, 2023), Steven Levitsky and Daniel Ziblatt discussed many of the same defects in the design of the document drafted in the summer of 1787 that Chemerinsky now lays bare.

It is hardly surprising that a constitution drafted by a group of fifty-five white men, of whom fifty-four were Protestant (Maryland’s Daniel Carroll was the lone Catholic), and designed for an agrarian nation of about four million people, a fifth of whom were slaves, would prove ill suited for a multi-ethnic world power with a population of 340 million. Chief among the defects that Chemerinsky identifies is the bête noire of many constitutional scholars: the electoral college, the method by which the US elects its chief executive. Unable to settle on a system for choosing the president, the drafters of the Constitution ultimately retrofitted a device used by the Holy Roman Empire (in which prince electors chose their monarchs and emperors). The college never functioned as designed, and quickly devolved into the present system, in which candidates compete state by state to win all their respective state’s electoral college votes. Thus, infamously, George W. Bush captured all of Florida’s twenty-five electoral college votes and the White House by defeating Al Gore by a margin of 537 votes from six million cast statewide.

Chemerinsky argues that the electoral college, which enlarged the voting strength of Southern states, was, like so many other trade-offs woven into the text of the Constitution, “very much a product of the compromises concerning slavery”, a claim some leading historians question. But, whether by design or not, it has long worked dramatically to magnify the power of Southern states to elect the president. And twice this century – in 2000 and again in 2016 – this patently defective system has elevated the loser of the national popular vote to the highest office in the land; it nearly happened again in 2020 and we may well see a repeat in November. In 2020 Joe Biden won the national popular vote by more than seven million votes, yet his margin of victory in three key swing states – Arizona, Georgia, and Wisconsin – totalled a mere 43,000 votes (0.028 per cent of the national vote). Such slim margins are a recipe for electoral chaos, and it was no accident that Trump targeted Arizona, Georgia and Wisconsin in his effort – the basis of outstanding federal and state criminal indictments – to overturn his opponent’s victory.

No less problematic is the Senate, which, by the terms of a compromise forged by the delegates of large and small states in 1787, provides for two senators per state, regardless of population. In the early days of the republic, when all states were essentially rural, this made some sense; now, it does not. Each senator from California, for example, represents 20 million people; each from Wyoming around 300,000. Presently the Senate is split evenly by party, 50-50, yet the fifty Democratic senators represent 45 million more Americans than do their Republican colleagues. As a result, predominantly white rural conservative states, the bastion of Republican support, enjoy vastly disproportionate power over states with large urban multi-ethnic populations.

The Constitution is often hailed as a “living document”, its astonishing endurance a testament to its ability to change. Yet there are only two basic avenues available for constitutional change – formal amendment and reinterpretation. As Chemerinsky notes, the first route is defective. By the terms of the Constitution an amendment typically requires the support of two-thirds of the members of each house of Congress and the assent of three-quarters of state legislatures, an exceptionally difficult hurdle to clear. Considered by many the most difficult to amend of all the national constitutions in place across the globe, the US Constitution has been amended only twenty-seven times in history, and even that number is inflated – ten of the amendments, compiled into the “Bill of Rights”, were quickly added to the original document to smooth the way to its ratification. Of the seventeen remaining amendments, two were self-cancelling – the Eighteenth Amendment of 1919, prohibiting the manufacture, sale and transportation of “intoxicating liquors”, was repealed by the Twenty-First in 1933. The notorious difficulty of the amendment process means that constitutional mistakes committed in 1787 continue to tyrannize the present. Lawmakers of all stripes have long bemoaned the anti-democratic features of the electoral college, but despite literally hundreds of efforts to get rid of it, these attempts could not clear the high constitutional bar. To compound the problem, the amendment process cannot be amended except by constitutional amendment.

This places all the more pressure on interpretation as the means of solving the tyranny of the past. Beginning in the late 1930s and lasting into the 1980s, the US Supreme Court offered numerous rulings that demonstrated the power of the Constitution to adapt to the needs of a complex industrial economy, redress a shameful history of racial discrimination and protect citizens from the intrusions of an increasingly powerful state. The present Supreme Court, however, has worked to undo many of these progressive rulings. With a constitutional grant of life tenure – Clarence Thomas has already served thirty-three years – the justices themselves threaten to become generational relics. And the fact that several of the Supreme Court’s conservatives now embrace “originalism” as the only proper form of constitutional interpretation works to ossify the document at the point that it was framed.

Still, the Constitution does open the door to a potentially radical means of change. On petition from two-thirds of the states, Congress “shall call a convention for proposing amendments”. This device has never been tested and, as Chemerinsky notes, the Constitution tells us nothing about how delegates to such a convention would be chosen. Nor is it clear whether such a convention would limit itself to “proposing amendments” or would redraft the Constitution as a whole. It is worth recalling that the 1787 document was itself the product of a runaway convention that had been called nominally to draft changes to the “Articles of Confederation” (1781), the then operative constitution.

Yet Chemerinsky argues that a comprehensive act of constitutional redrafting may well provide the best opportunity for the US to solve is present problems. It would offer a bold opportunity to get rid of the electoral college, alter the structure of the Senate, introduce term limits for Supreme Court justices and enshrine privacy as an enumerated constitutional right. Noting that the Constitution itself was ratified in an unorthodox fashion, he proposes that the New Constitution be ratified by a national referendum.

In supporting a constitutional convention, Erwin Chemerinsky declares himself alert to the risks, though he devotes little attention to them. He leaves unmentioned the fact that the most organized support for the effort has come from Citizens for Self-Governance (CSG), a right-wing group presided over by Mark Meckler, a co-founder of Tea Party Patriots, which has succeeded in getting nineteen states to pass resolutions petitioning Congress to call for a constitutional convention. In another seven states CSG has garnered the support of one of the two houses in the state legislature, putting the group arguably within striking distance of the thirty-four-state target. Chief among its aims is to restore “the checks and balances on federal power that were put in place by our founding fathers”. In a simulated convention, CSG “delegates” supported abolishing the federal income tax; authorizing states, by supermajority, to repeal federal law and regulations; and introducing sunset provisions on all federal regulations. (Congress could theoretically renew them.) For those of a progressive bent, it may yet be a case of the better the devil you know.

Lawrence Douglas’s books include Will He Go?: Trump and the looming election meltdown in 2020, 2020. He is a contributing opinion writer for the Guardian and teaches at Amherst College

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