For years, reforming the Constitution has been a misguided conservative issue. Downplaying the danger of a runaway convention, impatient conservatives have campaigned to ask the states to call a Constitutional Convention (Con-Con) to consider reforms and amendments that might address their many legitimate concerns.
Now, liberals are appearing on the reform horizon, calling for major constitutional changes.
One impatient liberal is Prof. Erwin Chemerinsky, dean of the Law School at the University of California—Berkeley. His new book, No Democracy Lasts Forever: How the Constitution Threatens the United States, goes beyond reform and calls for scrapping the Constitution altogether. He thinks the document has outlived its usefulness.
A Leftist Shift Against the Constitution
The leftist shift against the American Constitution is surprising. Liberals have long used (and abused) the Constitution to their benefit.
They proclaimed it a “living” document that conveniently changes with the times and liberal demands. By finding pockets of penumbra inside the document, liberal Supreme Court justices have been legislating from the bench, striking down traditions and conservative initiatives. Democrats have long accepted the results of the Constitution’s Electoral College for decades without problems.
Becoming a Threat to America
The Constitution has been wildly popular on both sides of the partisan divide as an enduring and beloved document that has stood the test of time. Both parties have celebrated its unique role in American history.
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Of course, it is not perfect. Over the years, people have complained about certain parts. Some have tried to amend it. However, few on the left or right have ever said it threatens the United States.
Dr. Chemerinsky does and goes one woke step further. Changing the narrative drastically, he says the Constitution was always flawed from the beginning—the product of a group of white slave owners. Its anti-democratic elements cannot be reformed while population and political shifts are making these flaws increasingly worse, contributing “greatly to the crisis of American democracy.”
Looking at the Flaws
Thus, the book analyzes these so-called flaws, which have made the Constitution the oft-repeated “threat to our democracy.”
So far, there is nothing original here. The author repeats the standard liberal talking points circulating among those who got the memo. He finds fault with the undemocratic Electoral College, the aristocratic nature of the Senate and its filibuster, the gerrymandering of congressional districts and the life terms of Supreme Court justices.
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He also has free speech issues regarding social media, which he claims threaten democracy during elections and generally spread false information. Such abuses need to be reined in despite the First Amendment.
Below the Surface
Dr. Chemerinsky presents his arguments well enough. He cites court cases, crunches numbers and consults surveys and polls. However, he insinuates that it is not the mechanisms themselves but what conservatives have done with them that cause so many problems and make them threats to democracy.
One senses that the book is not really about the Constitution. Never far from the surface of his narrative are the liberal issues (even climate change!) that make his book a political statement rather than a simple discussion of governing structures.
Indeed, the book is an unintended confession of the failure of the left to win the war on interpreting the Constitution. The author presents a long list of rulings by the current conservative court. He concludes that a shift leftward is unlikely. Thus, the Constitution becomes the scapegoat for the left’s current inability to work (and win) within its framework.
A Wrong Framing
Thus, the book suffers from three major defects.
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The first is the framing of the debate. The author clearly sides with the liberal agenda that must follow its Hegelian dialectic to ever-greater unrestraint. For this reason, the debate is framed in unoriginal class struggle terms of oppressors versus oppressed. Everything is identity politics.
Anyone conservative is unjustly associated with a wealthy, white and ruling (formerly slave-owning) class, which does not correspond to reality.
This framing gives the book the feel of a whine-fest of lost rights, identity resentment and power politics.
Failure of the Left
The second defect is the author’s failure to admit the left’s diminishing gains in this constitutional war. The radical proposal to scrap the Constitution shows how far the left will go to pursue its goals.
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It would have been much easier to continue interpreting the document with a leftist squint. Indeed, liberals had no problems using the Constitution to further their agenda in the pre-Reagan era, when everything seemed to go in their favor.
However, and perhaps inadvertently, the author relates how conservatives have overwhelmed the left in playing by the rules of the Constitution. The pages tell how conservatives have outwitted and outmaneuvered liberals in all the mentioned fields—redistricting, filibustering, judge selection and others. The powerful spotlights of conservative judges have made liberal penumbras disappear.
All this is happening despite the left’s control of major parts of the culture, academia, media and the liberal corporate establishment.
Rather than play by the rules, it is much easier to change the narrative…and the Constitution. So overwhelming are the conservative obstacles that the author demands the discarding of the revered document as a racist relic and starting over with a new constitution.
Blaming the System
The last defect is the most tragic. Dr. Chemerinsky refuses to get to the core of the debate: That America’s grave crisis is not a constitutional but a moral one.
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“For many reasons, the country has become more polarized,” he observes, “and politics has become much more toxic, which heightens concern over the future of American democracy.”
The author gets it wrong and does not discuss the causes of this polarization. He avoids delving into the liberal “political realignment” that took place in the sixties and still divides the nation. Indeed, he insinuates that conservatives are to blame for not going along with this realignment.
His solution solidifies this realignment with constitutional mechanisms in a new Constitution. Such technical changes will allow divisive moral issues like identity politics, “reproductive rights,” and woke policies to triumph, causing yet more polarization.
A Liability, Not a Strength
Given the present stalemate between the two sides, Dr. Chemerinsky proposes radical solutions that destroy a supposed racist past and impose a liberal future.
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The old Constitution is too rigid and, therefore, must be scrapped. Nothing is sacred. The time-tested document has become a “liability, not a strength.”
He writes, “The world of 1787 is too different from the world of the twenty-first century for us to be governed by a document written so very long ago.”
Two Options
The author considers remedial legislation and amending the Constitution as highly unlikely given the power politics involved. Thus, he maps out two alternatives.
He joins the impatient conservatives in calling for a Con-Con. He foresees this future assembly breaking the Constitution’s rules, as the original assembly did with the Articles of Confederation in 1787. The result should be something postmodern, easily amendable and more fluid. Conservative Con-Con promoters, beware: The left has designs for a future convention!
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So strongly does he feel about the need for change that he reluctantly admits the second option—the tragic possibility of many types of secession for those who cannot follow the program. He sees the issues that divide America to be so unresolvable, that a divorce may be the only way out.
Thus, No Democracy Lasts Forever should be seen for what it is: an abrupt quantitative leap to impose a liberal and woke future. It leaves unsettled the real questions that divide the nation. It excludes perennial God-given legal principles and laws that do last forever and need to be part of a constitutional order.
First Published: American Thinker
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