With all the disagreement about how to interpret the Constitution, maybe we need to consider that the problem is the Constitution itself. Erwin Chemerinsky, dean of the University of California, Berkeley, School of Law, joins host Krys Boyd to make the case that this document – written for a low population, rural society 200-years ago – has trouble incorporating modern life into its scope, and why it might need to be rethought. His book is “No Democracy Lasts Forever: How the Constitution Threatens the United States.”
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Transcript
Krys Boyd [00:00:00] One reason we pay so much attention to who is appointed to the Supreme Court. By which president is that — in recent decades, we often disagree over how the Constitution should be followed. Some are convinced the only right way is to stick as precisely as possible to whatever the original authors were thinking. Others see the logic in viewing the Constitution as a living document whose meaning can evolve with changing societal needs and norms. But what if the problem is not the different ways we might interpret the meaning of the Constitution? What if the problem is the Constitution itself? From KERA in Dallas. This is Think I’m Krys Boyd. At the time, this brief document created the government of the United States, which at the time was a low population, mostly rural, not very globally important collection of states still shaking off the indignities of 18th century British colonial rule. More than 200 years later, my guest thinks it’s time for us to consider whether it still actually works. Erwin Chemerinsky is dean of the School of Law at the University of California, Berkeley, and author of the book “No Democracy Lasts Forever” How the Constitution Threatens the United States.” Erwin, welcome back to Think.
Erwin Chemerinsky [00:01:13] Such a pleasure to talk with you. Thank you for having me.
Krys Boyd [00:01:16] We all learned about the drafting of the Constitution in history classes, but we didn’t necessarily focus on the kind of then and now differences in the United States as a whole. So, will you start by reminding us what sort of country we were at the time? The framers were charged with setting up the rules for this brand new country.
Erwin Chemerinsky [00:01:35] You described it well. It was 13 states all along the eastern seaboard. Rhode Island didn’t actually participate in the Constitutional convention, so it was just representatives of 12 states in a very small population, largely because of the Atlantic Ocean. There wasn’t much thought to foreign policy or international relations. It was a country where there were enslaved people in many of the states.
Krys Boyd [00:02:03] Most of us have been raised to not just admire, but almost revere the wisdom of the Constitution. You know, there are some evangelicals who believe it might have been divinely inspired. Our presidents every four years swear to preserve, protect and defend it. Why is too much love for the Constitution potentially a problem?
Erwin Chemerinsky [00:02:24] I too have great reverence for the Constitution. I’m in my 45th year as a law professor teaching constitutional law, but I also worry that too much reverence for the Constitution causes us to overlook its flaws. And I worry that its flaws are contributing to serious problems for American democracy today.
Krys Boyd [00:02:46] So your sense that the Constitution, our sense that the Constitution can never be wrong, keeps us from potentially making it even better than it is.
Erwin Chemerinsky [00:02:56] Exactly. And of course, the Constitution can be wrong. It’s a document written by humans, and it was written for a very long, very long time ago for a very different society.
Krys Boyd [00:03:09] Here and there. Over time, of course, we have seen the ways the Constitution has been wrong. I’m thinking about the amendments to abolish slavery and grant citizenship to all Americans, regardless of race, and to allow women to vote, and several others. How do constitutional originalists, these folks who believe the Supreme Court ought to interpret the Constitution based on what the framers understood and envisioned? How do they grapple with the fact that it originally enshrined a number of ideas we now find morally repugnant?
Erwin Chemerinsky [00:03:38] In originalist would say that the meaning of the constitutional provision is fixed when it’s adopted. You changed only by amendment. They would say, if you don’t like provisions in the Constitution, amend them. So you point to the example of slavery. Several provisions in the Constitution, as drafted in 1787, very much were protecting the rights of owners of enslaved people. The 13th amendment was adopted to abolish slavery. The 14th amendment was adopted to ensure equal protection. Originalists say that’s what it should be. Not changes to interpretation.
Krys Boyd [00:04:17] Let’s talk through some of the flaws baked into the Constitution from the beginning. Setting aside this question of whether there was any divine inspiration involved. This was a document created by humans, human men who had some brilliant ideas and strong convictions, and also some questionable values. You note that the framers actually distrusted democracy. Explain that.
Erwin Chemerinsky [00:04:43] The framers very much distrusted democracy. They distrusted the masses. And if you look at how the Constitution designed the institutions of government reflected that distrust. The Constitution creates four institutions of government. It creates the president chosen by the Electoral College, not by the people. The United States Senate at the time the Constitution was drafted. Senators were chosen by state legislatures. It wasn’t until the 20th century there was an amendment that the people choose senators. Supreme Court and lower federal court judges they’re picked by the president and confirmed by the Senate. Only the House of Representatives was directly chosen by the people.
Krys Boyd [00:05:30] And the idea was what that wealthy landowners with education, wealthy white landowners with education, knew more than everybody else?
Erwin Chemerinsky [00:05:39] Exactly. And this isn’t a caricature in hindsight. If you read Alexander Hamilton and The Federalist Papers, he defended the Electoral College exactly on those terms. He said that we need the elites educated to choose the president. We can’t leave this to popular vote.
Krys Boyd [00:05:59] How does the not entirely democratic nature of the Constitution contribute to just how difficult it is to amend?
Erwin Chemerinsky [00:06:07] I think there were many flaws in drafting the Constitution. Some of these were necessary at the time to get it adopted. One of the flaws, I think is how very difficult it is to amend the Constitution. The only mechanism that’s been used under article five of the Constitution is two thirds of both houses of Congress proposing an amendment, and then it being adopted by three quarters of the states. Since 1791, there have only been 17 amendments to the Constitution, and two of those were to adopt and then to repeal prohibition. Ironically, the framers worried that they made it too easy to amend the Constitution under the Articles of Confederation that preceded the Constitution, to gain the consent of the states, to amend the Articles of Confederation. They thought by making it the mechanism that I described, perhaps was too simple.
Krys Boyd [00:07:04] It is, as you mentioned, you know, the citizens have only had the right to vote for our senators directly for a little over a century. Why did the framers originally assume that that sort of selection ought to be carried out by state legislatures?
Erwin Chemerinsky [00:07:19] Some of it, again, was a distrust of the people. Some of it was the desire to protect the interests of states as states. Remember, in order for the Constitution to be adopted, three quarters of the states had to ratify it by letting state legislatures choose the senators. This was empowering state governments.
Krys Boyd [00:07:43] Speaking of the Senate, depending on where you live, many people would argue there is a problem today with representation. So the state of Wyoming has about a half a million residents. California has 40 million residents, but each state has the same power in the Senate.
Erwin Chemerinsky [00:08:01] I think this is a huge problem. Now, it was something of a problem. 1787. The difference in the largest state then in the smallest state was 12 to 1. Now, the difference in California, Wyoming in population is 68 to 1. Yet they both get two senators. The only elected body in the United States that doesn’t have to meet the rule of one person, one vote is the United States Senate. To give you a concrete statistic. In the last session of Congress, there were 50 Democratic senators and 50 Republican senators. The 50 Democratic senators represented 42 million more people than the 50 Republican senators. That just can’t be reconciled with those basic notions of democracy.
Krys Boyd [00:08:50] There’s also an urban rural divide because of this. What is the practical effect of giving outsized influence to many rural states and undersized influence to many urban ones?
Erwin Chemerinsky [00:09:02] The influence in the Senate is that it’s harder to get the Senate to adopt legislation which we need for urban populations, but also to go back to the Electoral College, remember that a state’s electors in the Electoral College, is the sum of the number of its representatives and senators. The effect of the way in which the Senate is devised is to give much more influence to smaller states, the Electoral College, and it increases the likelihood that the loser in the popular vote could have the winner in the Electoral College.
Krys Boyd [00:09:38] So why did this set up two senators per state, regardless of population, make sense at the time of the original 13 states, or did it make better sense then?
Erwin Chemerinsky [00:09:49] I think it made better sense. It was questionable even then. Why did it happen? It was a necessary compromise. The larger states wanted the Senate, like the House, to be allocated on the basis of population, just with larger districts for the Senate. But basically, states would get more senators if they were more populous. On the other hand, the smaller states wanted to make sure that they had equal representation. They wanted an equal number of senators per state. In the end, there was a compromise. The House of Representatives was going to be allocated based on population. The Senate was going to be equal to senators per state.
Krys Boyd [00:10:30] Today, there is virtually no disagreement that it was a shameful flaw in the Constitution, that it endorsed the institution of slavery, even though not everyone who signed the Constitution believed this was a good idea. Why Erwin would the framers have been willing to compromise on something so enormous?
Erwin Chemerinsky [00:10:50] There would not have been a Constitution for all of the states if it had taken actions against slavery. It’s that simple. I’ll give you one illustration. There was debate about whether to prohibit Congress from banning the importing of additional enslaved individuals. Most slave states had already banned importing additional slaves. And the reason is that they had a sufficient enslaved population, that the children would then be enslaved and that would be the slaves for the future. But North Carolina and South Carolina said they would leave the Constitutional Convention if Congress had the power to ban the importation of additional enslaved individuals. So article one, section nine, says that Congress could not ban the importation of additional enslaved individuals for 20 years. In article five of the Constitution made that one of two provisions that could not be adopted simply if there’d been an effort at the Constitutional Convention to outlaw slavery, the southern states would have walked away. Now, I always ask my students, what does that matter? If you were at the Constitutional Convention and you believe that slavery was an abomination, that those most basic notions of human rights and human decency would have been better to have two or more countries, rather than to have one country that protected the institution of slavery in the Constitution.
Krys Boyd [00:12:23] It’s really remarkable to think about that. If we had broken up over slavery, not temporarily during the Civil War, but before the establishment of the United States as we know it today.
Erwin Chemerinsky [00:12:33] It could have happened. If abolitionists in the North had said that the Constitution had to prohibit the institution of slavery. The southern states would have never agreed that the constitutional Convention to the document. They would have never ratified it in state ratifying conventions, and we might have had two or more than two countries at that time. I think that the northerners who strongly opposed slavery believed that it was a practice that was going to go out of existence on its own. That even though the Constitution didn’t prohibited it, was something that would just stop existing. That didn’t happen. In fact, quite the contrary. The Supreme Court aggressively protected the rights of slave owners. Slavery continued until the Civil War was fought over it.
Krys Boyd [00:13:23] So it was not a reasonable thing to assume that it was going to go away on its own.
Erwin Chemerinsky [00:13:27] I think sometimes people tend to believe what they want to believe and what they want to see happen. My look at history is, I think that they were convincing themselves of what they wanted to believe because they couldn’t abolish slavery, and they wanted a Constitution for the whole country.
Krys Boyd [00:13:46] Erwin, you see it as a major flaw, that the Constitution provides strong protections of the rights of individual states. Now, we’ll say this is an area that many people today view as a strength of the Constitution. So explain how and why the protection of states rights causes problems in modern times.
Erwin Chemerinsky [00:14:08] I give examples and then I can generalize from them. When Congress adopted the first law that prohibited child labor, it prohibited the shipment interstate commerce of goods made by children, and today it would seem so weak in doing that. The Supreme Court declared it unconstitutional as infringing states rights, as violating the 10th amendment to the Constitution. More recently, the Supreme Court declared law that required that every state clamp its nuclear waste to violate the 10th amendment state sovereignty. The court declared unconstitutional and federal law that required that state governments do background checks before issuing permits for firearms. The Supreme Court declared unconstitutional, is violating states rights. Federal law that said that any state that takes Medicaid money must include in its Medicaid program those within 133% of the federal poverty level. In all of these instances, states rights were obstacles to essential legislation: prohibiting child labor, cleaning up nuclear waste, background checks for firearms, ensuring that the poor get Medicaid coverage. And so this is what causes me to worry about states rights as a concept.
Krys Boyd [00:15:27] So what caused the framers to not endorse a powerful national government? Was it that the government simply didn’t have the reach or the resources at that time to do this sort of thing?
Erwin Chemerinsky [00:15:40] Because of the experience of the framers under the government in England, they were very distrustful of national power. They started by creating the Articles of Confederation. It had a very weak national government. There was no Supreme Court of Federal Judiciary. The president served for one year, and Congress had no power to regulate commerce among the states. No power to regulate individual behavior. That document proved a failure. It was chaos that caused the Constitutional Convention. Ironically, the Constitutional Convention was convened to repair the Articles of Confederation, and the drafters took on themselves to write a new document.
Krys Boyd [00:16:25] Did Americans at the time of the drafting of the Constitution have a collective American identity?
Erwin Chemerinsky [00:16:34] It’s a hard question. The country was so new at that point. Its future at that time seemed uncertain. I don’t think the country then had an American identity in the way that exists now. Remember, for example, that at that time, and really not until the 20th century did you have national media. I think the development of the national media was so crucial in forming an American identity that wasn’t communicationed to facilitate the development of an American identity. So I don’t want to make the strong statement that none existed. It was certainly a desire that there be a country separate from England. But in terms of American identity, I think that comes much later.
Krys Boyd [00:17:23] So I understand the point you made earlier about the framers still being a little bit traumatized by having lived under British colonial rule and not wanting a strong federal government for that reason. It’s also true that the federal government, as envisioned by the framers, didn’t have many of the capacities and responsibilities it has today. But but that’s not just here, right? Government functions have grown all over the world over time.
Erwin Chemerinsky [00:17:52] Absolutely. We expect the government today to do things that no one thought of at that time. So now, we want the government to provide a safety net for those who are less fortunate. And it’s essential that the government do this — that didn’t exist in anyone’s consciousness in 1787. In fact, when Congress tried to do things like provide disaster relief early in American history, it was challenged as whether or not Congress had that power. Something that today we believe is essential for the whole country to be there to help if one part is suffering because of a hurricane, or an earthquake. Even the concept of national defense was so very different in 1787 than it is in 2024. In 1787, the musket was the most powerful weapon. George Washington, the end of his presidency, in his farewell address, could proclaim there should be no entangling alliances. Now, of course, communication is instantaneous across the world. Now, missiles can go from one country to another in minutes.
Krys Boyd [00:19:02] How have the constitutional limits to federal powers curtailed the federal government’s ability to do things like protecting civil rights over time?
Erwin Chemerinsky [00:19:13] Well, the Supreme Court has declared some civil rights laws to be unconstitutional, as exceeding the scope of Congress’s powers, as exceeding the scope of the powers of the federal government. I’ll give you one example. It was a Supreme Court decision from 2000, United States versus Morrison. it involved a very important piece of federal legislation, the Violence Against Women Act. And one provision of that law allowed victims of gender motivated violence to sue in federal court, which included victims of sexual assault, victims of domestic violence just in federal court. Congress in the legislative history documented that often state courts were not hospitable or at all receptive to claims by victims of generated violence. So Congress said, let’s allow these individuals to sue in federal court. This particular case involved a student at Virginia Tech University who had been raped by a football player. Initially, the university disciplined the football player but then rescinded all of the discipline. So she sued in federal court. Tragically, the Supreme Court ruled 5 to 4 that Congress lacked the authority to adopt this provision against the Violence Against Women Act. This is to me an example with the Supreme Court’s use of states rights and limits on Congress power deprived of an essential law.
Krys Boyd [00:20:43] You argue that the Constitution has contributed to the racial and socioeconomic inequality, that are still a major reality of life in the United States. I wonder if that’s something that has happened, you think directly? Or is it just a factor of all the many laws and policies that the Constitution has or has not allowed over time?
Erwin Chemerinsky [00:21:04] Yes. I think both those of. As we talked about earlier, the Constitution very much protected the institution of slavery. There was no equal protection clause in the Constitution as written in 1787. That’s what led Alexis de Tocqueville in the early 19th century, and democracy in America, to say that “race is the tragic flaw upon which American government is founded.” Even after slavery ended. After reconstruction ended. The result was that especially southern states up in southern areas of northern states adopted laws that required segregation of the races in every aspect of life. There was apartheid in every southern state. There was apartheid in southern areas of northern states and in border states. That wasn’t ended at least till the start of the Brown versus Board of Education in 1954, and actually didn’t end until much later. And we still live in a very segregated society. These racial inequalities, I think, can be traced back to the choices made in 1787.
Krys Boyd [00:22:20] Why have the problems in the Constitution that we’ve been talking about so far, caused ever greater issues for Americans since around the mid 20th century? What has changed in that time?
Erwin Chemerinsky [00:22:32] I think that’s a great question, and it’s one that I thought about a lot in writing the book. Let’s take the Electoral College. Never in the 20th century, did the loser of the popular vote get chosen as president in the Electoral College. It happened twice in this century, already in 2000 and 2016. It almost happened two other times. In 2004, John Kerry would have become president if he had carried Ohio, despite losing the popular vote. In 2020, if 42,000 votes in three states had come out differently, Donald Trump would have become president, though losing the popular vote by 7 million votes. Here I think partizan realignment and population shifts have made it much more likely, and will continue to be more likely that the loser of the popular vote can win in the Electoral College. Or take the United States Senate, the rules of the filibuster were changed in the 1970s to make it far easier for there to be a filibuster. The result of it is that it now takes 60 votes to pass any legislation in the Senate, unless it’s budget legislation. That contributes to how difficult it is for Congress to act. And that in turn contributes to the loss of confidence in government.
Krys Boyd [00:23:58] Let’s talk a little bit more about that. People who are not political junkies or law professors Erwin, may not pay all that much attention to filibuster rules in the Senate, so we may not understand why they have such an effect. Specifically, how has the Senate revised filibuster rules since the 70s?
Erwin Chemerinsky [00:24:19] For many people, their image of a filibuster comes from movie “Mr. Smith Goes to Washington.”
Krys Boyd [00:24:25] Very old movie.
Erwin Chemerinsky [00:24:26] And if people who are listening haven’t watched it, it’s a wonderful movie. It has Jimmy Stewart holding the podium in the Senate, fighting corruption until he literally collapses. That’s what the filibuster used to be. A senator would have to hold the podium until at least it was passed off to an ally, and the filibuster would stop all of the work of the Senate while it was going on. Well, as filibusters became more common, the Senate decided that it wouldn’t require an actual holding of the podium to filibuster. We now have what I call the book, “the virtual filibuster.” If a senator indicates that he or she wants to filibuster a bill, then, that bill will not be brought to a vote until the 60 senators who vote for cloture. The Senate gets to keep doing all of its other work. No one is actually holding the podium, but it then becomes easy, cost free, to the filibuster. The practical result of that is all legislation in the Senate needs 60 votes, (the number to end the filibuster), except for budget legislation. One of the premises of the book is the tremendous loss of faith in government. I saw a Gallup poll from just last month that only 16% of the people expressed confidence in Congress. I think the filibuster plays a huge role for that. Who among us believes that Congress really is likely to adopt meaningful legislation to deal with huge issues like climate change or income inequality?
Krys Boyd [00:26:11] I’m not asking this to be sort of deliberately provocative, Erwin, but why does it matter that the majority of Americans now express a certain amount of distrust in the institution of government? How does that harm us?
Erwin Chemerinsky [00:26:26] History shows that a government without the confidence of people isn’t going to last very long. With regard to confidence in government, the Pew Research Institute has been in a survey since the 1950s about confidence in government. The high watermark was 1964, with 77% of people expressed confidence in the federal government. In the survey last October, 20% expressed confidence in government. And one of the things that’s frightening to me is that those in their 20s and 30s expressed the least confidence in government. I’m not saying that we’re going to lose democracy tomorrow, but I worry in the longer term if the government doesn’t have the confidence, of the people, it’s a government that isn’t going to survive in the long term.
Krys Boyd [00:27:16] It’s remarkable that we express a loss of confidence in government, and yet we pay great attention to politics. They’re not precisely the same thing, even though we talk about them the same way.
Erwin Chemerinsky [00:27:31] That’s a great point. I think the fact that we pay a great deal of attention to politics is because a recognition that what the government does affects all of us; often the most important, most intimate aspects of our lives. We all know that whether it’s Kamala Harris or Donald Trump is going to make a huge difference in terms of policies for our lives, for society. And yet, though we pay attention and recognize the importance of the choice, at the same time, we worry about our political system and worry about whether our government really can solve the problems that society and the world face.
Krys Boyd [00:28:14] Well, whether it is Kamala Harris or Donald Trump who wins in November, you point out that because of the Electoral College and because of population geographic realignment in this country, we have this focus on swing states, right? Which means that states that are home to just over a fifth of the population now get to decide who becomes president. How does that affect the things that presidents and presidential candidates focus on?
Erwin Chemerinsky [00:28:41] You’re absolutely right. Of course. I think everyone agrees that this election is going to come down to Michigan, Wisconsin, Pennsylvania, Georgia, Arizona and Nevada. Maybe North Carolina is in play as well. It certainly will affect the campaigns. If you live in California, as I do, you’re not going to see commercials for Harris or Trump in the weeks before the election, because it’s clear Kamala Harris is going to win the state of California. On the other hand, if you live in, say. Let’s make it Pennsylvania. You’re going to be deluged with commercials before the convention. I think it then affects how candidates campaign and how they’ll govern, knowing that these are the states that are going determine who’s president.
Krys Boyd [00:29:30] Tiny digression here. Do you think political ads actually work?
Erwin Chemerinsky [00:29:34] When it comes to presidential elections, I don’t think they matter very much at all. I think with regard to lower visibility elections, state and local elections where people don’t have as much name recognition when they are running for office, political ads matter enormously. So this goes to spending on money in election campaigns. There’s so much money now, both for Harris and for Trump. I don’t think that the money is going to decide the election. I don’t think the ads are going to decide the election. But, imagine a lower visibility base, a congressional seat, a district attorney’s race, a city council race. Political scientists have documented that their ads in money matter an enormous amount, because it’s what gives candidates the name recognition if they don’t have it to start with.
Krys Boyd [00:30:29] Erwin, gerrymandering has been a feature of politics in this country for a very long time. Why is it now a greater force of political control?
Erwin Chemerinsky [00:30:40] Sophisticated computer programs and detailed voter analysis make it possible to engage in Partizan gerrymandering with far more precision than ever before. As justice Elena Kagan said, “this isn’t your grandparents Partizan gerrymandering.” Take North Carolina as an example. It’s a purple state. It went for Trump over Biden in 2020, but by 1.35%. When Republicans gained control of the North Carolina legislature, they said that their goal was to redraw congressional districts in North Carolina to give Republicans control of 10 of 13 seats. They had a computer draw 3000 different maps for all election districts redrawn. They chose the one that was most likely to give Republicans 10 of 13 seats. It shouldn’t surprise anyone that it worked. In both 2016 and 2018, democrats and republicans statewide got almost exactly the same number of votes for congressional seats, but Republicans won 10 of 13 seats. Partizan gerrymandering seems so inconsistent with democracy. Democracy based on the idea that voters should choose their elected officials. Partizan chairmen let elected officials choose the voters.
Krys Boyd [00:31:58] You note in the book that Congress could fix the problem of Partizan gerrymandering with a single new law. What, what sort of changes could they make?
Erwin Chemerinsky [00:32:09] Congress is allowed to set the rules for election for Congress. And so Congress could adopt a statute that says that every state must have an independent commission to draw election districts for seats in Congress.
Krys Boyd [00:32:26] So this sounds easy enough. Will it ever happen?
Erwin Chemerinsky [00:32:30] It almost happened just a few years ago. The House of Representatives passed two voting rights bills. One of them would have done just this and it then went to the Senate, and a Republican filibuster killed these bills. There was talk in the Senate that the Democrats should change the rules with regard to the filibuster, to create an exception for voting rights legislation. But two senators, Senator Manchin from West Virginia and Sinema from Arizona, blocked that change in Senate rules. My hope would be that there will be a point in the future when both the House and the Senate will pass legislation, outlawing Partizan gerrymandering for congressional seats.
Krys Boyd [00:33:15] How do constitutional rules around the selection of the Supreme Court contribute to the existence today of a court whose views are broadly in conflict with the majority of citizens they serve?
Erwin Chemerinsky [00:33:30] Some of this, of course, is because Supreme Court justices have life tenure. Some of it is about the accident of history. With regard to life tenure, average life expectancy in 1787 was 36 years. Thankfully, it’s a lot longer today. From 1787 to 1970, the average tenure of a Supreme Court Justice was 15 years. It was remarkably constant over a long period of time. For justice appointed since 1972, have left the bench, average tenure has been 27 years. At the same time, the accident of history when vacancies occur really matters. Richard Nixon picked four justices in his first two years as president. Jimmy Carter got to pick no justices in his four years as president. And put this another way, Donald Trump picked three justices in his four years as president. The prior three Democratic presidents: Jimmy Carter, Bill Clinton and Barack Obama, served a combined 20 years in the White House. And in those two decades, they picked only four justices.
Krys Boyd [00:34:40] So is this something that could be changed without a constitutional amendment?
Erwin Chemerinsky [00:34:47] I don’t think so. And I’ve gone back and forth on this. There are some scholars who argue that Congress could remedy life tenure for justices by federal stature. And their argument is we would have the justices leave the bench after, say, 18 years, but they’d still be called Supreme Court Justice, and they still get the salary of Supreme Court Justice, and they would just sit in the lower courts. I think, though, that making them justices in name only wouldn’t be constitutional. The Constitution has always understood that if someone is confirmed for the Supreme Court it’s their position for life, until they either retire or impeached and removed. I think to have term limits imposed on Supreme Court justices, especially sitting justices, would take a constitutional amendment.
Krys Boyd [00:35:39] You have talked in this book a lot about amendments, but you’ve also thought it might not be a terrible exercise to consider drafting a new constitution from the ground up. First of all, do you see any great appetite for that beyond, sort of your office and the thoughts that you’ve had on this?
Erwin Chemerinsky [00:36:01] I’ll take each of those questions in turn. Its a desirability. In some ways, it’s absurd to be governed in 2024 for a Constitution written in 1787. The world is so vastly different. What we want our government to do is different. The protection that we want of our rights is different. And the more the Supreme Court limits the meaning of the Constitution, but it was in 1787, What you said in your introduction, the more absurd it is to be governed by that document. And so, I think it’s important to start thinking about: should we begin the process of drafting and ratifying a new constitution? It’s not going to happen tomorrow, but it’ll never happen unless we’ve been thinking about it. And let’s face it, there will be some point in which the United States Constitution is replaced. No governing document lasts forever. And I’d much rather it be through systematic thought rather than a time of crisis. Do I see an appetite for it right now? No. I think there’s great fear over what it might be to try to draft a new constitution. People can read in what they think will be the worst about a new constitution. Say we shouldn’t draft it. I don’t think that if there were a constitutional convention, the men and women there would live up to the role. They would know whatever they propose would have to be ratified, and that that would be a real check. And the need for ratification would be it was too radical in either direction or in any direction. It wouldn’t be approved.
Krys Boyd [00:37:41] We argue so much now about politics and partizanship. How do you imagine we could possibly select a new group of citizens to entrust with the job of remaking the Constitution?
Erwin Chemerinsky [00:37:56] What I think is key to remember there is that the country was deeply divided in 1787. There was no consensus that the Articles of Confederation be replaced. There’s no consensus on any major issue in 1787. Indeed, the Constitution was ratified in some states only by a very small number of votes. It’s not that the men at the Constitutional Convention in 1787 were divinely inspired. It’s not that they were more brilliant than people today. What happened was, when they gathered to amend the Articles of Confederation, they realized the new constitution was necessary. They set out to draft it and then lived up to their roles. They knew that their time would be wasted unless it was a document that could get approval of three quarters of the states. Likewise, I’m hopeful today that if we were to create a Constitutional Convention, the “James Madison” would emerge from it. That others, like Alexander Hamilton would emerge from it. And those men and those women, and there were no women in 1787, at the Constitutional Convention, would live up to the task and draft a document that could get broad support, and if not, it would get rejected.
Krys Boyd [00:39:17] There are certainly parts of the Constitution I think most Americans would want to preserve. How could we figure out the things that remain sacrosanct?
Erwin Chemerinsky [00:39:29] If there were a Constitutional Convention, one of the first things they should decide is what to keep from the current document. I think separation of powers works well. Having a legislature, an executive and a judiciary. I think they would want to clarify that, but they also want to take into account the developments that have occurred since 1787. What about federal administrative agencies that have legislative power and making rules, executive power and prosecuting violators, judicial power and adjudicating whether there’s been a violation. I think most of the Bill of Rights would be kept. I think no one would dispute that we should have protections for free exercise of religion, freedom of speech, protection from arbitrary search and seizure and so on. Probably there are some provisions in the Bill of Rights we wouldn’t keep today. The Third Amendment says that the government can’t force people to house soldiers. My guess is we wouldn’t put that in a new Constitution. We’d also need to recognize the flaws in the current Constitution. We talked about a lot of them. Electoral College to Senators of State, life tenure for Supreme Court Justices. There are other things that I think are really problematic in the current Constitution. There’s no mention of a right to privacy. So my hope would be that those at a constitutional convention would keep what’s best and write a new constitution that’s much more adapted and much more focused on the world of the 21st century.
Krys Boyd [00:41:06] How would you define a right to privacy if you were writing this new Constitution?
Erwin Chemerinsky [00:41:11] What’s interesting is many states, like California, already have in their Constitution: a right to privacy. Unless you think it’s just liberal states, Alaska has in its Constitution right to privacy. And it’s been robustly used by the Alaska Supreme Court. A half century ago, the Alaska Supreme Court found under the right to privacy, under the Alaska Constitution, a right to possess small amounts of marijuana. I think what I would want to make clear is what we mean here by privacy is a right to autonomy. A right in individuals to make basic decisions about their lives, unless the government has a very good reason for interfering. I would want it to include rights with regard to family autonomy, rights with regard to reproductive autonomy, rights in regard to autonomy to make medical decisions, rights in autonomy to engage in sexual activities. One problem with the word privacy is it encompasses too much. So here what I’m speaking of is autonomy.
Krys Boyd [00:42:18] Article five of the existing Constitution does create a mechanism for drafting a new Constitution?
Erwin Chemerinsky [00:42:26] It says that two thirds of the states can call for a Constitutional Convention, and then Congress would convene one. Whatever posed would be effective if ratified by three fourths of the states. I worry about that mechanism because it ultimately takes approval of the states to ratify the Constitution. We’re never going to eliminate the Electoral College. We’re never going to eliminate two senators per state. So, I would much prefer a mechanism where Congress and the president call a constitutional convention, and it specified at the outset that anything it proposes has to go to the people, and the people in the United States would vote on it. Something that’s done in other countries.
Krys Boyd [00:43:10] The Constitution that we’ve had all this time is an imperfect document. Surely, a new Constitution would have some imperfections as well, maybe only be ratified after compromises that some drafters, some Americans, find troubling. What makes all of this worth the exercise of at least trying?
Erwin Chemerinsky [00:43:31] I think that the current Constitution and its flaws is contributing a real crisis of democracy. The premise of the book, and I say explicitly that I hope I’m wrong is that American democracy is in danger. And if you accept my premise, and if you accept that the Constitution is contributing to that, then that’s why I think it’s necessary to think about how do we fix this, whether by statue, or constitutional amendment, or even a new Constitution?
Krys Boyd [00:44:00] Are there lessons we could learn from countries that have either remade or substantially amended their Constitutions?
Erwin Chemerinsky [00:44:09] It is interesting to look at countries around the world that have drafted Constitutions, say, since World War II. Many of these Constitutions contain affirmative rights as well as negative liberties. They create an affirmative right to environmental quality, an affirmative right to education, as well as provisons on what the government can do. The United States Constitution is very much about prohibiting what the government can do to protect liberty. We don’t have much in the way of affirmative rights. I think we can look at structures of government in foreign countries and see what works. I think here the United States Constitution works remarkably well.
Krys Boyd [00:44:53] Erwin Chemerinsky is dean of the School of Law at the University of California, Berkeley, and author of “No Democracy Lasts Forever: How the Constitution Threatens the United States.” Erwin, thank you for making time to talk today.
Erwin Chemerinsky [00:45:06] Thank you so much. It’s such a pleasure to talk with you.
Krys Boyd [00:45:09] You can find us on Facebook and Instagram. Our podcast is free wherever you like to get podcasts, or you can listen to it at our website think.kera.org. Again, I’m Krys Boyd. Thanks for listening. Have a great day.
