I went out to the Utah desert to read a book and think about the present and future of the American republic. Solo camping on the edge of a red rock canyon seemed like the best place to confront our problem and scream into the void, hoping to find an answer.
Erwin Chemerinsky’s No Democracy Lasts Forever. How the Constitution Threatens the United States is a sobering, “the call is coming from inside the house,” analysis that leads us to think uncomfortable thoughts. Chemerinsky knows of what he writes. He’s the dean of the University of California, Berkeley, School of Law. The Constitution, he writes, is “profoundly anti-democratic and, in many ways, was from the outset a bad blueprint.”
Due to the differing regional interests at the Constitutional Convention in 1787 and the proto-democratic era in which the founders lived, they made three poor choices when writing the Constitution.
First Poor Choice: They Distrusted Democracy
The Constitution is littered with anti-democratic architecture. The Electoral College is anti-democratic. Not only does it magnify the power of voters in less populated states—which happen to be disproportionately White—but opens the possibility that the winner of the popular vote will not actually become president.
The U.S. Senate was not originally elected by the people. Even now that the people do get to vote for their senators, the Senate remains a profoundly un-democratic institution. California has 68 times more people than does Wyoming, but Wyoming and California both get two Senators. And as Ari Berman wrote in his book Minority Rule, “due to the filibuster, which is not in the Constitution, forty-one Republican senators representing just 21 percent of the population have been able to block bills supported by huge majorities of Americans on issues like gun control, abortion, and voting rights.”
Partisan gerrymandering has been enshrined in American politics by the Supreme Court. This practice allows politicians to pick their voters rather than having voters pick their politicians. It undermines the House of Representatives as an institution representing the will of the people. Chemerinsky notes that partisan gerrymandering resulted in a net shift of 19 House seats to the Republicans in each of the 2012, 2014, and 2016 elections.
The Supreme Court itself is not a democratic institution. Justices Brett Kavanaugh and Amy Coney Barrett were both nominated to the Court by a president who lost the popular vote and confirmed by senators representing only 44 percent of the American population. The Court has repeatedly expanded the powers of the president and limited democracy. As Chemerinsky puts it, the Supreme Court’s “rulings in recent years have further undermined democracy and contributed to the current crisis. . .By empowering corporations, while at the same time gutting the Voting Rights Act, conservative justices have had an enormous political effect. One need not be a cynic to see it as Republican justices helping elect Republican candidates at every level of government. The loser in all of this is our democracy.”
Second Poor Choice: They Protected Slavery and Discrimination
Let’s be clear here. Without concessions to slaveholders and slaveholding states, there would not have been a Constitution nor a United States. It’s as simple as that. The Constitution contains the infamous Three-Fifths Clause, which said that for the purposes of taxation and representation the census will count free persons, including indentured servants, but discount the census of all “other persons” by three-fifths, by which they meant slaves. It was simultaneously a huge grant of power to the South, where most slaves lived, and a political statement that Blacks were not fully people.
The Constitution permitted the slave trade to continue for another twenty years. It also contained the fugitive slave clause, which said that “No Person held to Service or Labour in one State, under the Laws thereof, escaping into another, shall, in Consequence of any Law or Regulation therein, be discharged from such Service or Labour, but shall be delivered up on Claim of the Party to whom such Service or Labour may be due.” Without ever mentioning slaves or slavery, the Constitution solidified slavery into the nation’s legal architecture.
“I have always been baffled,” writes Chemerinsky, “as to why the country should be governed by the views of those who lived in an agrarian slave society in the late eighteenth century, almost half of whom owned slaves.” It is not surprising that such founders failed to put a clause in the Constitution guaranteeing the equal protection of the laws for everyone.
Third Poor Choice: They Vigorously Protected States Rights
Even though the Constitution was created to remedy the defects of the Articles of Confederation and create a much more powerful central government, it left considerable power with the states. In the name of federalism, activist conservatives on the Supreme Court struck down the 1875 Civil Rights Act and the first attempt to ban child labor. States rights have been used to argue against the abolition of slavery and segregation. For much of American history the Supreme Court ruled that protections in the Bill of Rights only limited the central government, allowing states to trample on people’s civil liberties. Today, red states are passing laws “to restrict voting rights, increase penalties for public protest, impose new restrictions on transgender youth, ban books, and limit what teachers, college professors, and employers can say about race, gender, and sexual orientation. Some states are even exploring options to potentially prosecute people who help women travel out of state to obtain an abortion.”
Conversely, when it fits the conservative project, they have been perfectly happy to trample on states’ rights. Court rulings have tied the hands of states to regulate corporate speech and political activity. Right now, the Trump administration is attempting to overturn California’s strict vehicle emissions standards.
Changes We Could Make
To restore confidence in our political system and make it work for ordinary people, Chemerinsky advocates the following structural changes:
Eliminate the Electoral College and elect the president directly. This would require a Constitutional amendment. There have been over “700 proposed amendments to abolish or modify the Electoral College—more than any other subject of Constitutional reform.” In the current political climate, when the Electoral College is more likely to elect a Republican who has lost the popular vote than a Democrat, it’s unlikely that red states would go along. And small states generally oppose eliminating the Electoral College because it artificially inflates their power in presidential elections.
Change representation in the Senate to reflect population in each state. States get two senators regardless of their population. Because of large disparities in state populations, this is a gross violation of the one man, one vote principle. However, this feature is not only written into the Constitution, but Article V says that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Eliminate the filibuster in the Senate. Given that the filibuster isn’t constitutional in the first place, eliminating it is simply a matter of changing the Senate’s rules. Partisan fears of being powerless in the minority have thus far kept the filibuster in place.
Abolish partisan gerrymandering. This would take either a federal law or a Constitutional amendment, neither of which are likely at this time. State-level changes are possible and have been successful in places like Michigan.
Increase the size of the House of Representatives. The number of seats in the House grew during the 19th and early 20th centuries but was fixed by law in 1929 at 435 members. The American population in 2025 is 2.8 times greater than it was in 1929. Expanding the size of the House would ensure that representatives more accurately reflect the interests of their districts. Expansion would also affect the size of the Electoral College and make it more likely that the popular vote winner would also win the Electoral College.
Eliminate life tenure for Supreme Court justices. The United States nearly stands alone in having life tenure for Supreme Court justices. Justices are often in their forties when appointed and can serve for 40 years. Life tenure is written into the Constitution, but there’s nothing to stop the Congress from moving justices to emeritus status after, say, 14 years, and use emeritus justices only in cases when standing justices must recuse themselves due to conflicts of interest or when there is an unfilled seat.
Overturn Supreme Court rulings that have allowed corporations to spend unlimited money on elections and that have gutted the Voting Rights Act. The conservative justices who currently occupy a majority of seats on the Court are on a mission to remake American law to pre-date the New Deal and to turn the 14th Amendment against its original intent and use it to empower corporations. The only way to reorient the Court is for progressives to win elections and demand that justices appointed to the bench rule according to key values such as empowering “we the people,” enabling government to provide for “a more perfect union” and the “general welfare,” “establish[ing] justice,” “secur[ing] the blessings of liberty for ourselves and our posterity,” and providing everyone “the equal protection of the laws.”
Chemerinsky’s list of changes is a good one. But we shouldn’t kid ourselves: The political architecture of America favors minority rule. We can take heart that on June 14th of this year, millions of Americans took to the streets in peaceful demonstrations against No Kings in America. That energy can turn the United States in a new, more progressive and democratic direction.
[Here ends part one of this discussion. Come back next week for two surprising possibilities Chemerinsky puts forward in No Democracy Lasts Forever.]