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A Constitutional Democratic Republic ... if we can keep it! [1]

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Date: 2025-05-31

The above title is a variation of, and shout-out to, what James McHenry overheard Benjamin Franklin say to Mrs. Powel, a Philadelphia woman who had queried him on the nature of the new government just adopted by the constitutional convention. Ever since, politicians, prognosticators, and pundits have pondered Franklin’s declaration of a qualifier on the new fact of a republic: “if you can keep it.”

I have the sense that a good many of us living into the 21st century have not really considered whether we can keep it. We know that the “land of the free and home of the brave,” this “sweet land of liberty,” is not eternal, but we generally and typically fail to dwell on the fragility of our system of government and the freedoms its supposedly provides and guarantees. It was there when I was born in the first half of the 20th century, and it will be there long after I have left this mortal coil. So many among us would believe. And we would be wrong!

I doubt that any of you have given much thought to whether the founding document of any institution actually contained within it the very seeds of its own destruction. For example, I’m sure you have never read The Constitution of the German Reich (1919), known as the Weimar Constitution, which formed the democratic government of Germany following World War I. For its time, it was a rather progressive document. Unfortunately, it also contained some structural flaws that ultimately contributed to that republic’s collapse and made it possible for the rise of Nazi Germany.

The constitution granted the president extensive emergency powers, allowing him to bypass the German parliament and rule by decree during a crisis. Hitler was adept at exploiting this provision when he finally came to power, and this led to the erosion of democratic norms and the concentration of power in his hands. The system of proportional representation looked good on paper, but it allowed for a highly fragmented parliament with many small parties, making it difficult to form stable governing coalitions which led to frequent political deadlock. Moreover, the constitution lacked robust checks against anti-democratic forces; it did not prevent extremist parties like the Nazis from participating in elections and using democratic processes to dismantle democracy itself. Many Germans, especially elites and military leaders, were not fully committed to the democratic ideals of the Weimar Republic. The constitution's legitimacy was undermined by this lack of societal buy-in, further destabilizing the system. And while it was not a direct flaw of the constitution, the document nevertheless failed to address processes for remediating economic crises such as hyperinflation in the early 1920s and the Great Depression in the early 1930, both of which contributed significantly to the country’s political instability. These and other crises made extremist Nazi solutions very appealing to the populace.

The weaknesses in the Weimar Constitution allowed Adolf Hitler to rise to power legally, ultimately leading to the suspension of democratic governance and the establishment of the totalitarian Third Reich. The lesson of the Weimar Constitution comes from its exemplification of how a founding document, even one aimed at establishing democracy, can include mechanisms that undermine its own principles when exploited by bad actors. It underscores the importance of designing governing frameworks with safeguards against the concentration of power, political extremism, and erosion of democratic norms.

And now, the number of voices raising a similar cry of concern for the fate of American democracy in the United States is on the rise. The New York Times published a list of eight titles dealing with this subject, the Chicago Public Library published a list of fourteen on its website, The Guardian identified five, and Montclair State University has a webpage with links to digital articles, essays, and books organized around themes of various structural, social, and political threats to democracy.

The latest to step into that line is Erwin Chemerinsky, the Jesse H. Choper Distinguished Professor of Law and Dean at the University of California Berkeley School of Law. In his most recent book, No Democracy Lasts Forever: How the Constitution Threatens the United States (Liveright, 2024), he argues that certain structural features of the U.S. Constitution pose significant risks to the long-term stability and functionality of American democracy. In particular, he examines and critiques the undemocratic aspects of the Constitution and proposes some reforms to address these issues.

It may be hard to think of our founding document as being anti-democratic, even anti-majoritarian, but Chemerinsky’s book offers an eye-opening critique of the U.S. Constitution, arguing that its structural flaws pose significant risks to the long-term survival of our brand of democracy. As a constitutional scholar, he identifies several features of the Constitution that are inherently undemocratic, including the Electoral College, the equal representation of states in the Senate regardless of population, and the lifetime appointments of Supreme Court justices. The Electoral College, for example, allows a candidate to win the presidency without securing a majority of the popular vote, as has occurred in five elections. The Senate, with its two seats per state rule, disproportionately empowers smaller, less populous states, often giving a minority of voters control over major legislation. These mechanisms, Chemerinsky argues, create a system that prioritizes state-based representation over the democratic ideal of one person, one vote.

One of the central arguments in the book is that the Constitution’s amendment process is excessively rigid, making meaningful reform nearly impossible. Amending the Constitution requires the approval of two-thirds of both houses of Congress and three-fourths of state legislatures, a threshold that is nearly insurmountable in the current polarized political environment. This rigidity perpetuates structural inequalities and prevents the country from adapting its governance to modern challenges or securing the constitutional rights of all citizens (e.g., the saga of the Equal Rights Amendment).

Chemerinsky also critiques the role of the Supreme Court, whose lifetime-appointed justices wield immense power with little accountability. The Court’s ability to interpret the Constitution as it sees fit often leads to decisions that reflect the justices’ ideological leanings rather than the will of the people (e.g., the saga of a woman’s right to an abortion). This lack of accountability is exacerbated by the difficulty of removing justices, limiting their power, or establishing and enforcing a code of judicial conduct, all of which conspire to further entrench anti-democratic tendencies.

The book also explores the erosion of voting rights and the prevalence of gerrymandering, voter suppression, and unequal representation. Chemerinsky argues that the Constitution fails to provide explicit protections for voting rights, leaving them vulnerable to state-level manipulation. These practices undermine the fundamental democratic principle of equal representation and disproportionately affect marginalized communities.

He draws his critical analysis of our constitutional system to a close with proposals for several reforms that address these flaws, including abolishing the Electoral College, implementing term limits for Supreme Court justices, and reforming the Senate to better reflect population differences. He also advocates for a simpler and more accessible amendment process to make the Constitution more responsive to the needs of a modern democracy. Without such changes, he warns, the United States risks falling into democratic backsliding, as its foundational structures enable anti-democratic practices to persist and grow.

American citizens should consider reading this book for several reasons. First, for citizens who may take the Constitution's sanctity for granted, this book challenges the notion that the document is flawless and immune to criticism (or divinely inspired). By illustrating how the structural features of the Constitution could be exploited to erode democratic norms and principles, the book highlights the importance of ongoing vigilance and reform to protect democratic values. This perspective encourages readers to recognize the vulnerabilities in the U.S. system and to take a more proactive role in ensuring its longevity and health. It has the added benefit of exposing a good many people to the Constitution itself, a document with which, according to a study conducted by the Annenberg Public Policy Center at Penn State University, not many American citizens are all that familiar.

Second, in an era of increasing political polarization and public disillusionment with governmental institutions, the book offers a critical lens through which to evaluate the effectiveness and fairness of our political system. For anyone interested in engaging meaningfully with current political discourse, the book provides essential context on how, as it stands, the Constitution shapes and sometimes distorts democratic processes. The book also encourages readers to think critically about how political power is distributed in the U.S., and why reform might be necessary to ensure the system works better for the majority of citizens.

Third, the book is not just a critique but also a call to action. Chemerinsky offers proposals for reform that can inspire citizens to advocate for changes that align the country’s political system with the principles of democracy and equality. It’s less a matter of mindlessly endorsing his proposals, and more a matter of mindfully engaging in conversations about how citizens can exercise their agency to push for constitutional reforms, rather than passively accepting the current system.

Fourth, in light of recent challenges to democracy, such as the erosion of voting rights, the rise of political extremism, and concerns about the independence of the judiciary, Chemerinsky’s work here is particularly timely because it offers historical context and provides a lens through which to evaluate contemporary threats to democracy.

Fifth, by critiquing the ways the Constitution perpetuates inequality, whether through unequal representation in the Senate or barriers to voting, the book advocates for a more just and inclusive political system. This resonates with those who are concerned with civil rights, social justice, and ensuring that all citizens, regardless of background, have an equal voice in the political process.

On the other hand, for those who are disinterested in securing the political and civil rights of all citizens, caring only for their own rights and the rights of those who are like them in demographics, and for those who believe that social justice is nothing more than closet socialism and identity politics and a threat to their own cultural, religious, racial, or national identity, it would probably be useless to read this book. Civil rights are personal rights, established and guaranteed to all by the U.S. Constitution and federal laws that protect people from discrimination and repression. Social justice redresses inequality of rights, and it is based on the idea that everyone deserves to be treated without prejudice and have their human rights respected. It's about ensuring that people have the resources they need to thrive, and that institutions don't discriminate against people based on their race, religion, age, gender, or sexuality.

And yet, civil rights can be and are being abridged in this country in spite of, and as a result of, our constitutional system. Social justice is truncated and depreciated in this country by the historical legacies of the inequality found in slavery and segregation, forced displacement and marginalization of the indigenous peoples of this continent, gender discrimination, capitalism and the concentration of wealth and income inequality, erosion of voting rights, the myth of meritocracy, the fear of change, and on and on.

Chemerinsky is clear in his warning and call to action: no democracy is permanent, and the U.S. Constitution’s flaws make this country particularly vulnerable. His critique of our status quo is both cautionary and credible. If we as Americans can summon the resolve to address these structural issues, then perhaps we can secure and safeguard our democracy for future generations. Without efforts to constitutional reform, our survival as a democratic republic remains questionable.

So yeah, I recommend Chemerinsky’s book!

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