Many progressive constitutional experts hold Berkeley Law School dean Erwin Chemerinsky in the highest esteem. He attended Harvard and Northwestern Universities and has taught at DePaul, USC, Duke, and UC Irvine; he is now 71 years old. He has written extensively on his experiences as a Supreme Court advocate.
The right-wing judges’ ideology of originalism, which they use to attack long-fought liberties, was the target of his most recent book, Worse Than Nothing. No Democracy Lasts Forever: How the Constitution Threatens the United States is Chemerinsky’s new, even more confrontational book that gets to the heart of the matter.
Chemerinsky states: “I see an American government that is increasingly dysfunctional and that has lost the confidence of the people, in a society that is increasingly politically polarized.” This comes less than a hundred days before a presidential election that could bring back Donald Trump, a candidate widely believed to threaten beloved freedoms. The fate of American democracy is a major concern of mine.
“The book is an attempt to show how the constitution is a major source of the problem and to propose solutions to that problem.”
While speaking, Chemerinsky carefully describes the issue. All things considered, the United States Constitution is unfit for its intended purpose.
In 1787, a handful of white men came to an agreement that benefited themselves; this included safeguarding smaller states and the owners of slaves. An electoral college that allows minorities to win presidential elections and two senators for every state regardless of population were both established by the same framers, who also laid the groundwork for economic and racial inequity.
After the Civil War, the Constitution underwent substantial revisions in 1791 with the addition of the Bill of Rights’ ten amendments. Subsequently, from 1865 to 1870, amendments were proposed to abolish slavery, expand the citizenship, and grant voting rights to Black men. The 19th amendment, which granted women the vote in 1920, was one of several significant developments. Yet, it appears that transformation is more difficult now than it was a century ago.
The Equal Rights Amendment, which states that “equality of rights under the law shall not be denied or abridged by the United States or by any State on account of sex” and which, according to Chemerinsky, “was passed overwhelmingly by Congress in 1972” as a “simple and un-objectionable statement,” is still not a part of the constitution, despite the fact that 38 states ratified it at some point.
Pure politics is what is holding the ERA back. Of all, nothing lasts forever more than pure politics, as exhibited by the Republicans who gain the greatest from maintaining minority power and by the tenacious adherence to Senate procedures like the filibuster that serve to impede progress. While Democrats work to derail Trump’s agenda and Republicans aim to consolidate power, the Constitution remains in Washington, DC’s National Archives, seemingly impervious to alteration.
Respect for the Constitution has shielded us from critiquing its shortcomings.
Chemerinsky, Erwin
“Our democracy is at grave risk and our government is broken,” he adds, adding that he does not see any quick fixes. At its best, a book detailing issues should provide practical solutions; however, none of them are forthcoming… I would give anything to be mistaken about my premises (that American democracy is in the midst of a severe crisis) or my conclusions (that resolving the issues will be extremely challenging, if not impossible).
While speaking, Chemerinsky adopts a more optimistic tone.
“The Constitution is revered,” he remarks, encompassing not only the written word but also the oratory, academia, and even the entertainment industry that has elevated Alexander Hamilton, James Madison, and other founding fathers to the status of demigods. “That respect comes at a price; it has diverted our attention away from its shortcomings and the ways in which they exacerbate our democratic dilemma.
I have maintained that the Constitution ought to be interpreted in a progressive manner. A new constitution should be considered, though, and I believe that the time has come for that. Even though this process isn’t explicitly mentioned in the constitution, I believe that a new constitution might still be ratified.
Put simply, it boils down to personal determination, just like in most facets of politics.
Chemerinsky lays forth a plan for change, which primarily involves Democrats seizing control of state legislatures and the federal government and trying to convince the public that a new constitutional convention is necessary to implement drastic reforms. Still, his last thoughts are remarkably pessimistic.
Free speech, a right protected by the First Amendment but often contentious, is another topic that Chemerinsky addresses on the website. Such debates are currently hot in the progressive community around demonstrations against US backing for Israel’s assault in Gaza. In April of last year, the controversy exploded into Chemerinsky’s garden. Protesters broke up a joint dinner he was having with law professor Catherine Fisk, which was a tradition for students.
In an article for the Atlantic, Chemerinsky expressed his shock at witnessing the head of Law Students for Justice in Palestine read aloud a statement on the Palestinians’ suffering.
“Without wasting any time, Chemerinsky and Fisk went up to her and demanded that she cease talking and vacate the premises. And so the demonstrator went on. [Fisk] made an attempt to remove her microphone at one point. We told her over and over again that she was just a guest in our house. Kindly depart.’
“The student maintained her right to free expression. The first amendment, which limits the government’s ability to censor speech on public land, does not extend to guests in private backyards in the slightest. However, our home is not a platform for free speech; it is our personal property.
An occurrence involving a single horrific and dramatic tragedy has pitted the left against itself. Something occurred in Chemerinsky’s backyard in April, and he is understandably careful about discussing it and its implications. Nonetheless, he is more than willing to elaborate on how he handles matters of free expression.
“Absolutivism is usually illogical,” he remarks. “Free speech has limits. Speech can be penalized, but perjury is not. Any employer who threatens their employees with termination until they “sleep with me” is engaging in protected speech and may face legal consequences. It is not being proposed that gun rights can be absolute. In places like courthouses and airports, nobody thinks it’s okay to have weapons.
Who knows? Maybe nobody in the general public. Secularism gives way to nationalism in Trump’s era.
A new civil war could break out if states on the political extremes of the red and blue camps decide to break away from the union in this era of profound divide, a prospect that Chemerinsky is also trying to come to terms with.
If Trump is elected president and the Republicans gain control of Congress, progressive states’ secession is possible, according to Chemerinsky, but it’s also possible for right-wing states to seize power.
Not only does he not think secession is desirable, but he also thinks it is highly unlikely. However, I do believe it is a potential avenue that, barring any changes, we may be talking about more in the years to come.
