As his book’s subtitle indicates, Erwin Chemerinsky, dean of the law school at the University of California, Berkeley, maintains that America’s survival is “threatened” by the very charter under which the country has been governed (with occasional amendments) for 236 years. In No Democracy Lasts Forever: How the Constitution Threatens the United States, Chemerinsky radicalizes the thesis of his previous anti-originalism manifesto. There, he had dismissed the enterprise of interpreting the Constitution according to the text’s original meaning, rather than on the basis of judges’ current estimation of the dictates of justice, as “a dangerous fallacy.”

　　Now, Chemerinsky cites Americans’ “justifiabl[e] loss of confidence in all branches of the federal government,” according to recent polls, along with our widely noted political polarization, as the consequence of flaws inherent in the Constitution, which have come to the fore over the last half-century. If those flaws are not addressed through radical alterations in our governing charter, or its total replacement, they allegedly leave us threatened by the possibility of the Union’s breakup.

　　In a nutshell, Chemerinsky’s critique of the Constitution comes down to a single, familiar trope: it isn’t sufficiently democratic. After all, it was written by a small group of white men, 45 percent of whom were slave owners. Naturally, although numerous delegates to the Constitutional Convention—including (though Chemerinsky doesn’t mention this) some slave owners themselves—regarded slavery as an intolerable evil, which they hoped would disappear within the foreseeable future, getting voters in the heavily slave-owning states to agree to ratification required making certain compromises with the “peculiar institution.” Curiously, Chemerinsky wonders why the Framers who abhorred slavery didn’t “try harder to end” it—as if they had any capacity to do so. And he maintains that the Founders’ “bargain” with slavery “has had calamitous consequences ever since,” long after Emancipation, “as our society continues to be profoundly and increasingly separate and unequal” (an assertion for which he supplies no evidence).

　　It is worthwhile to note the vast difference between Chemerinsky’s judgment of the Founders’ work in this regard and that of two far more thoughtful figures: Frederick Douglass and Abraham Lincoln. Both men made much of the fact that in their compromise with slavery, the Constitution’s authors relied on euphemism, so that—once slavery ended—no verbal trace would remain of that institution’s ever having been authorized by it. Hence Douglass, in his justly celebrated Fourth of July Oration, while denouncing the American government for having failed to live up to the principles of the Declaration of Independence by ending slavery, called the Constitution “a glorious Liberty document.”

　　But going well beyond the Founders’ supposedly benighted views on “race and gender,” Chemerinsky insists that, “contrary to what schoolchildren have been taught for generations, the government” they created “is anything but a democracy.” In fact, their handiwork, not merely “reflect[ing] the discriminatory and exclusionary views” of their time, embodied a deep “antipathy toward democratic rule”—as is “highlighted” by the fact that they made it “enormously difficult to change by amendment.”

　　It is true that the Founders, while specifying rules that would need to be followed to amend the Constitution, made that process difficult. They did so for reasons spelled out by Publius in Federalist #49. Since human conduct is often governed more by passion than by sober reason, Publius argues, it is vital for even the most perfectly designed constitution gradually to enlist the “prejudices” of the community on its side—instead of relying purely on its inherent rationality. It can do so only if it maintains its substantial form over a long period of time. In that way, it may acquire just what Chemerinsky objects to: the people’s reverence.

　　How well the Founders succeeded in that regard was illustrated by the fact that it has endured for well over two centuries, while the vast majority of the world’s written constitutions date no earlier than the mid-twentieth century. But remarkably, Chemerinsky is more impressed by the claim of a global think thank, the V-Dem Institute, run by a Swedish political science professor that “democracy is eroding faster in the United States than in other major Western democracies,” to the point where it “is more on a par with Brazil, Bangladesh, Turkey, and India.”

　　To anyone reasonably informed about world affairs, that judgment (issued in 2021) is astonishing. It overlooks the continuing “lawfare” between rival, and radically opposed, factions in Brazil; the largely nominal “democratic” Turkish system that has kept Recep Tayyip Erdoğan in power since 2003, identified a decade ago as the world’s leading jailer of journalists, and ranked 117 out of 139 countries in 2021 by the World Justice Project for adherence to the rule of law; the continuing inter-religious conflict in India, sometimes encouraged by prime minister Narendra Modi (who has clung to power for the last decade); and, as I write these words, the student riots over government job quotas in Bangladesh where over 200 people have already been killed and thousands more injured. Surely, Chemerinsky cannot envy those countries unstable or dictatorial regimes.

　　But to cite these facts is to miss Chemerinsky’s true grievance. He implicitly defines democracy as simple majoritarianism. Therefore, he deems practically all the non-majoritarian features of the Constitution, from equal representation of the states in the Senate to lifetime tenure of Supreme Court justices, anti-democratic and therefore unjust. Ultimately, he rejects the Constitution because it hinders his progressive, egalitarian vision for society.

　　The point Chemerinsky entirely misses, but which is well explained in The Federalist, is that the Founders aimed to establish a system in which the people’s “deliberate sense,” rather than passing whims or uninformed snap judgments, would govern us.

　　While the Founders therefore avoided establishing a democratic, that is, simply majoritarian, system, they did so not out of hostility to popular, or republican government—a system in which, as Publius puts it in Federalist #39, government “derives all its powers directly or indirectly from the great body of the people, and is administered by persons holding their offices” for specified terms. And the product of the 1787 Constitution was not only the most popular, or republican, system of government of any major nation then existing, but also one that has stood the test of time.

　　The point Chemerinsky entirely misses, but which is well explained in The Federalist, is that the Founders aimed to establish a system in which the people’s “deliberate sense,” rather than passing whims or uninformed snap judgments, would govern us. The Founders’ aim wasn’t only, as Chemerinsky briefly acknowledges, to prevent the tyranny of a majority over a minority. It was to protect liberty and promote prudence through deliberation.

　　Making government more deliberative, however, is not a problem that concerns Chemerinsky. Instead, he maintains “that to restore public confidence and to make government much more effective,” the Electoral College must be eliminated, representation in the Senate “must be allocated based on population,” and term limits imposed on Supreme Court justices. Additionally, because America’s population has grown so greatly since 1929, when the size of the House of Representatives was set at 435, its membership must be increased, a change that Chemerinsky is confident would not “har[m] its operation.” (Contrast the observation in Federalist #58 that in all legislative assemblies, the greater the number composing them, the fewer will be the men who in fact direct their proceedings.”)

　　Imagine how the American political system would operate following Chemerinsky’s desired reforms. First and foremost, selection of both the Senate and president would be dominated by a limited number of the most populous states. The remaining, less populated states, from the Southeast to most of the inland West, would lack significant influence in the national councils, being limited, in effect, to the status of “flyover country.” What would leave their inhabitants with any sense of attachment to the Union?

　　Chemerinsky isn’t fazed by that concern. Rather, should the nation fail to adopt his proposed reforms, whether through Court action or a new constitutional convention, he forecasts, without claiming to advocate, the breakup of the Union thanks to increasingly “sharp ideological disagreements” between residents of “red” and “blue” states. Citing the peaceful division of Czechoslovakia in 1992 and Norway’s breakoff from Sweden in 1905, he envisions a “peaceful divorce” between the West Coast states, joined by their “blue” counterparts on the East Coast along with Illinois, on the one hand, and the rest of the country, on the other. The two new nations would be free to form “regional compacts” and even remain conjoined for purposes of military and foreign policy. In some ways, the progressive Chemerinsky’s plans for a “peaceful division” are reminiscent of certain far-right politicians’ and writers’ calls for a “national divorce.”

　　Chemerinsky’s secession plan displays no more political sense than his equation of American democracy with Bangladesh. The most obvious difference between his plan and its supposed Czech and Norwegian analogs is that the American states are not divided ideologically into homogeneously “red” or “blue” populations, as the parties in the other two cases were separated by history, language, and possibly ethnicity. Chemerinsky’s secessionist vision would require something on the order of what occurred (in the bloodiest fashion) when the British divided their former Indian colony into separate Hindu and Muslim nations—only this time, mass migration would have to take place among the populations of all 50 states. No serious person could truly advocate such an outcome.

　　Chemerinsky’s speculations about calling a new constitutional convention as an alternative to secession have no more seriousness to them. In response to fears that a new plan of government would be worse than the one it replaces, his only answer is that “the time will come when Americans will realize that the Constitution itself is endangering democracy and they will start thinking of replacing it,” knowing that “no constitution lasts forever.” Other great liberals have had far more reverence for the American Constitution than Chemerinsky. In 1878, for example, the British statesman William Gladstone called it “the most wonderful work ever struck off at a given time by the brain and purpose of man.” It is regrettable that the leader of one of our country’s most prominent law schools should fall so short of Gladstone’s insight as to imagine that a random group of some 55 individuals, either popularly elected or chosen by the president and congressional leaders (as Chemerinsky proposes) from among America’s current crop of politicians, academics, or bureaucrats could produce a plan of government better suited to our needs than the brilliant, highly educated, and eminently public-spirited assemblage that met in Philadelphia in 1787, just because they’re more up to date on current issues such as climate change and gun control. (At this rate, we might need a new constitution every other year.)