AI transcript
0:00:05 Support for the show comes from Into the Mix, a Ben & Jerry’s podcast about joy and justice
0:00:07 produced with Vox Creative.
0:00:12 Inez Bordeaux is a self-described hellraiser, and she became an activist after being caught
0:00:14 up in the criminal legal system.
0:00:19 When she couldn’t afford her bond and without a trial, Inez was sent to a St. Louis detention
0:00:24 facility known as the Workhouse, notorious for its poor living conditions.
0:00:29 Here how she and other advocates fought to shut it down, and one, on the first episode
0:00:32 of this special three-part series, Out Now.
0:00:36 Subscribe to Into the Mix, a Ben & Jerry’s podcast.
0:00:39 Here’s an uncomfortable question.
0:00:43 What if the thing that’s going to finally destroy our country once and for all is the
0:00:50 document that created it in the first place?
0:00:55 The Constitution of the United States is a brilliant political document, but it was
0:01:03 written in the late 1700s, in a very different world than the one we currently inhabit.
0:01:09 It was an agrarian society, a huge percentage of the population was enslaved, the rights
0:01:14 of citizenry were confined to white property-owning males.
0:01:19 Also, there were no iPhones, no deep fakes, no online polling.
0:01:28 And forget about podcasting, the earliest audio recordings were still a century away.
0:01:33 Almost everything about the way we live has completely changed, except for how our government
0:01:35 works.
0:01:40 And that’s because even though the Constitution can, in theory, be amended, it has become
0:01:43 almost impossible to actually amend.
0:01:51 And the reasons for that inertia are embedded in the document itself.
0:02:04 I’m Sean Elling, and this is the Gray Area.
0:02:07 Today’s guest is Erwin Chemerinsky.
0:02:13 He’s the Dean of the Law School at UC Berkeley and the author of a new book called No Democracy
0:02:18 Last Forever, How the Constitution Threatens the United States.
0:02:24 Chemerinsky makes a pretty convincing case that America is in trouble if we don’t find
0:02:32 a way to seriously reform or even rewrite the Constitution, which, sure, okay, is that
0:02:36 even possible, and what happens if it’s not?
0:02:43 I invited him on the show to find out.
0:02:47 Erwin Chemerinsky, welcome to the show.
0:02:49 It’s a pleasure to talk with you.
0:02:56 We scheduled this pod several weeks ago, and obviously in the meantime, quite a few consequential
0:02:58 things have happened politically.
0:03:04 Let me just start by getting your reaction to what happened and where we are now and
0:03:06 how you’re feeling about the state of our democracy.
0:03:14 I titled the book No Democracy Last Forever, having a strong sense that our democracy faces
0:03:15 crisis.
0:03:19 That’s only been intensified by recent developments.
0:03:25 Obviously, the assassination attempt at Donald Trump was tragic, but it was stunning at the
0:03:31 Republican Convention to hear people say that it’s not being a successful assassination
0:03:37 was God’s will and that somehow God is responsible for Donald Trump being a leader in the Republican
0:03:38 Party.
0:03:43 To me, that’s very frightening as a thought, let alone as rhetoric.
0:03:50 This follows an enormously eventful Supreme Court term, which culminated on July 1st with
0:03:57 the Supreme Court giving the president very broad immunity from any criminal prosecution.
0:04:03 All of this, I say, intensifies my sense that we’re a democracy in crisis.
0:04:07 Yeah, it’s a little too much to keep up with.
0:04:12 It feels like crisis piling on top of crisis, and it’s a little dizzying, but let’s see
0:04:17 if we can wade our way through it a bit here.
0:04:22 Maybe you can just explain your thesis as simply as you can.
0:04:27 Why has the Constitution become a threat to American democracy?
0:04:34 There were choices that were made in order to get the Constitution ratified.
0:04:42 There were mistakes at the time, but because of shifts in population and partisan alignment,
0:04:44 they become much more salient in recent years.
0:04:47 Let me give you examples.
0:04:48 The Electoral College.
0:04:53 The Electoral College was a terrible way of choosing a president, because it should
0:04:57 be the person who gets the most votes who’s president.
0:05:01 The Electoral College was chosen based on distrust of the people.
0:05:06 It was chosen to help states with enslaved populations.
0:05:10 But in the 20th century, the Electoral College didn’t matter.
0:05:16 Now once in those hundred years, did the candidate who lost the popular vote win in the Electoral
0:05:23 College, but in this century already twice, the candidate who lost the popular vote win
0:05:27 in the Electoral College, and it almost happened two other times.
0:05:32 If Ohio had gone for John Kerry in 2004, he would become president though losing the popular
0:05:33 vote.
0:05:39 If 42,000 votes in three states had come out differently in 2020, Donald Trump would have
0:05:43 been president despite losing by 7 million votes.
0:05:48 This changed the way in which there have been population shifts, the way in which partisan
0:05:54 alignment means that we’re going to continue to face for the foreseeable future, the reality
0:06:00 that we’re going to have presidents who lose the popular vote, even by a lot, winning Electoral
0:06:01 College.
0:06:07 Another choice that was made in 1787 that was a mistake, but haunts us today, is two senators
0:06:09 per state.
0:06:14 At the time the Constitution was written, the difference from those popular state, Virginia
0:06:18 and the least popular state, Delaware, was about 9 to 1.
0:06:26 Today the difference in population between Wyoming and California is 68 to 1.
0:06:33 In the last session of Congress, there were 50 Democrats and 50 Republicans, but the 50
0:06:39 Democratic senators represented 40 million more people than the 50 Republican senators.
0:06:45 And the filibuster, which changed greatly in form in the 1970s, makes it possible for
0:06:51 small minority senators, representing a small minority of the population, to be able to
0:06:53 block virtually any legislation.
0:06:59 I think a third tragic choice that was made then was giving Supreme Court justice a life
0:07:00 tenure.
0:07:04 At the time, the average life expectancy was 36 years old.
0:07:11 Now we face Clarence Thomas having been confirmed in 1991, when he was 43 years old.
0:07:19 Remaining on the court, days till he’s 90, 47 years, Amy Coney Barrett was 48 when she
0:07:20 was confirmed.
0:07:27 If she stays until she’s 87, the age Justice Ginsburg passed away, Barrett will be a justice
0:07:29 to 2058.
0:07:34 It’s too much power in one person’s hands for too long a period of time.
0:07:41 From 1787 to 1970, the average tenure of Supreme Court justice was 15 years.
0:07:47 For the justice of an appointed since 1970, they’re 10 years average, 27 years.
0:07:53 A fourth bad choice made in drafting the Constitution was how difficult it is to amend.
0:07:58 It takes two-thirds of both House of Congress and three-quarters of the states.
0:08:05 Since 1791, when the Bill of Rights were adopted, it’s only been amended 17 times.
0:08:09 And two of those were to adopt and repeal prohibition.
0:08:15 And finally, and maybe the worst set of choice at all, were those made with regard to race.
0:08:20 The Constitution very much protected the institution of slavery.
0:08:25 And those choices with regard to race have haunted the country throughout its history.
0:08:31 And what I argue in the book is that these flaws in the Constitution made much worse
0:08:36 by a series of Supreme Court decisions in recent years have contributed greatly to the
0:08:37 crisis of American democracy.
0:08:45 There’s so much going on there, there’s a lot to say about the Supreme Court and we’re
0:08:49 going to spend a good amount of time on that shortly, so I’ll kind of table that for the
0:08:50 moment.
0:08:55 So, if you look at all these problems you just listed, the treatment of race, the Electoral
0:09:02 College, the Unrepresentative Senate, and so on, if you were rank ordering the flaws
0:09:05 with the Constitution, how would you rank them?
0:09:11 What to you is the most fatal or the most problematic or the most daunting?
0:09:18 In terms of the structural things that I mentioned, I would say the Electoral College and two
0:09:24 senators per state posed the greatest threat to democracy.
0:09:28 If you ask me through the history of the United States, what was the worst choice?
0:09:33 It was that with regard to race, because I believe that what the Framers did with regard
0:09:39 to slavery and race has really haunted this country and continues to throughout its history.
0:09:50 So the Unrepresentative Senate and the Electoral College, is there any other advanced liberal
0:09:55 democracy in the world that has equivalent institutions or analogues to either of those
0:09:58 or are they unique to our system?
0:10:01 They’re unique to the United States.
0:10:06 There’s not any other country in the world that has a popular election for its chief
0:10:11 executive or the person who loses the popular vote can be chosen.
0:10:15 In parliamentary systems, there might be a way in which you can put together coalitions
0:10:20 to make that happen, but nothing like the Electoral College and nothing like the United
0:10:30 States Senate, which is every state gets two senators, regardless the size of the state.
0:10:38 To the extent the Constitution is anti-democratic in all the ways you’ve just outlined, the
0:10:45 argument in defense of that is that those features safeguard democracy over the long
0:10:52 term, that we need a firewall against all the vulnerabilities of democracy in order
0:10:55 to protect it from itself.
0:10:58 How do you respond to this line of argument?
0:10:59 Do you buy it?
0:11:03 Yes and no, which is probably a typical law professor answer.
0:11:05 Well, tell me both.
0:11:06 Give me the argument in both directions.
0:11:08 I will.
0:11:13 The yes is that the Constitution is inherently anti-democratic.
0:11:19 The Constitution is meant to limit what the majority can do at any point in time.
0:11:20 I believe in that.
0:11:25 I don’t think it should be as difficult to change as the current Constitution, but I
0:11:29 accept we should be governed by a document that’s more difficult to change than just
0:11:31 any other statute or ordinance.
0:11:33 I also believe in checks and balances.
0:11:39 I think one of the good things in the Constitution to help prevent tyranny is the diffusion of
0:11:42 power among several branches of government.
0:11:48 On the other hand, I don’t think the Electoral College helps to prevent tyranny.
0:11:53 I know the Electoral College is in any way a check on democracy.
0:11:56 It’s just a terrible way of choosing a president.
0:12:02 I don’t think two senators per state has anything to do with protecting our democracy.
0:12:06 My answer is, yes, there are features in the Constitution to protect democracy, and that’s
0:12:07 a good thing.
0:12:11 But the things that we’re talking about now, the Electoral College and the Senate don’t
0:12:14 in any way contribute to protecting democracy.
0:12:19 If you had to steelman the case for the Electoral College or even the Senate, could you do it?
0:12:24 I mean, is there, because I struggle to find a defensible case for it, really, on almost
0:12:27 any grounds that make any sense to me.
0:12:31 But I’m sure really smart lawyers somewhere have made these arguments.
0:12:37 I’ve read all the literature with regard to the Electoral College.
0:12:43 And the argument that’s most frequently made is that the Electoral College causes candidates
0:12:51 for president to take the smaller states seriously in a way that they wouldn’t if they just could
0:12:54 focus on the most popular states.
0:13:01 The problem with that argument is that candidates pay attention to some states much more than
0:13:04 others with the Electoral College.
0:13:11 There are not going to be many ads for president in the fall of 2024 in California, because
0:13:14 it’s clear where California is going to go.
0:13:18 The candidates for president aren’t going to spend much time campaigning in Texas because
0:13:20 they know where it’s going to go.
0:13:29 The campaigns are going to focus on Wisconsin, Michigan, Pennsylvania, Georgia, Nevada, Arizona.
0:13:31 That’s already a feature of the system.
0:13:36 Yes, the Electoral College gives an incentive to focus on some states more than others.
0:13:39 So would popular election of the president, but that doesn’t seem to be a reason to keep
0:13:41 the Electoral College.
0:13:48 In terms of two senators per state, you have to really believe in states as states and
0:13:53 state sovereignty in order to say it should be two senators per state.
0:13:59 It seems so absurd to me, as I said, that California has 68 times more people than Wyoming, but
0:14:03 each gets two senators in the United States Senate.
0:14:04 That’s preposterous.
0:14:06 I mean, I’m sorry.
0:14:08 There’s no steel manning that.
0:14:12 It’s an affront to the most minimal definition of democracy.
0:14:13 I agree.
0:14:14 Okay.
0:14:23 So I think we both agree that it is one of the greater virtues of the Constitution that
0:14:32 it left room for revision, but that feature of it seems to have been undercut by this bloated
0:14:36 inert dysfunctional system it created.
0:14:38 That seems to be the cardinal problem here.
0:14:43 There is actually mechanisms for fixing these things, but we now have a system that damn
0:14:46 near forbids it.
0:14:52 The framers of the Constitution were trying to change what it had been under the Articles
0:14:53 of Confederation.
0:14:59 Under the Articles of Confederation took unanimous agreement of the states to amend that document.
0:15:04 They thought they were making it easier by two-thirds of both houses of Congress and
0:15:06 three-fourths of the states.
0:15:13 The problem with that, of course, is that in a time when the country is politically polarized,
0:15:18 it is so difficult to imagine two-thirds of both houses of Congress and three-quarters
0:15:24 of the states agreeing to anything that isn’t obvious, and even then it’s unlikely to get
0:15:26 agreement.
0:15:33 The more the Supreme Court becomes originalist and limits the meaning of the Constitution
0:15:38 to what it was in 1787, the more desperate it is that we would be able to change the
0:15:42 Constitution by amendment, and yet that’s virtually impossible.
0:15:57 [Music]
0:16:01 Support for the show comes from Into the Mix, a Ben and Jerry’s podcast about joy and
0:16:04 justice produced with Vox Creative.
0:16:09 In season three of this award-winning podcast, Into the Mix is covering stories on the ordinary
0:16:13 people fighting for justice in their local communities, starting with the fight against
0:16:18 the workhouse, a penitentiary in St. Louis known for its abject conditions, mold, and
0:16:22 pest infestations, and its embrace of the cash bail system.
0:16:26 Post Ashley C. Ford interviews Ainez Bordeaux, who spent a month in the workhouse when she
0:16:30 couldn’t afford her $25,000 bail.
0:16:35 Experiencing what I experienced in watching other women go through it and know that there
0:16:46 were thousands before us, and there were thousands after us, who had experienced those same things.
0:16:48 That’s where I was radicalized.
0:16:52 Eventually her charge was vacated, but the experience changed her.
0:16:54 They’re starting a campaign to close the workhouse, so are you interested?
0:16:58 And I was like, hell yeah, hell yeah, I’m interested.
0:17:02 You can hear how she and other advocates fought to shut down the workhouse, and won on the
0:17:06 first episode of the special three-part series Out Now.
0:17:18 Subscribe to Into the Mix, a Ben and Jerry’s podcast.
0:17:23 We’re hovering a bit at 100,000 feet, and I want to focus on the situation with the
0:17:29 Supreme Court for lots of obvious reasons, most notably that it’s very present in our
0:17:32 current politics.
0:17:34 So talk to me about the Supreme Court.
0:17:42 What is it supposed to do according to the Constitution, and what is it actually doing?
0:17:50 I think the Supreme Court is there, most of all, to enforce the Constitution, to give
0:17:55 a document written in broad language contemporary meaning.
0:18:01 John Marshall, back in McCulloch v. Merrill in 1819, said, “We must never forget that
0:18:03 it’s a Constitution we’re expounding.
0:18:07 Constitutionment we adapted and endure for ages to come.”
0:18:13 The Constitution is meant to limit what the government can do, the kind of check we were
0:18:18 talking about before, and the limits of the Constitution only have meaning if they’re
0:18:21 enforced, and that’s what the courts are about.
0:18:29 I think that the current Supreme Court, though, for so many reasons, is itself a threat to
0:18:31 democracy.
0:18:38 Some of that is decisions of the Supreme Court, like Citizens United v. Federal Election Commission,
0:18:43 that corporations can spend a limited amount of money at Candice Elected were defeated,
0:18:50 Shelby County v. Holder, that gutted key provisions of the Voting Rights Act, Roachow v. Common
0:18:54 Cause that says that no federal court can hear a challenge to partisan gerrymandering
0:19:00 and how egregious. I also think that Hall of Shame is going to include Trump v. United
0:19:07 States from July 1st, 2024, that gives the president very broad, absolute immunity from
0:19:10 criminal prosecution for almost anything done in office.
0:19:15 On that one in particular, there was a lot of breathless coverage. The example was, and
0:19:20 the president could order SEAL Team 6 to assassinate a rival, and it would be totally fine because
0:19:27 immunity. Is that decision as bad and absurd as it sounds on its face, that the president
0:19:34 can quite literally do just about anything he or she wants and be granted immunity from
0:19:35 any kind of prosecution?
0:19:43 Yes, it’s that bad. What the Supreme Court said was, anytime the president is using
0:19:49 a power created by the Constitution or a statute, the president cannot be criminally
0:19:55 prosecuted. So if the president uses his power as Commander-in-Chief to call out the
0:19:59 military to assassinate a political rival, that’s part of the president’s constitutional
0:20:04 powers, Commander-in-Chief. If the president says to the Justice Department, “I want
0:20:10 you to prosecute somebody as retribution,” and this shouldn’t be hypothetical because
0:20:15 Donald Trump has said, including the debate, he wants to do that. Absolute immunity from
0:20:21 the president. If a president wants to sell pardons, since the pardon power is an official
0:20:26 power under the Constitution, the president can’t be prosecuted. And the Supreme Court
0:20:34 said explicitly that the motive of the president doesn’t matter. So the fact that the president
0:20:41 is acting to get rid of a political rival or for retribution or for personal monetary
0:20:46 gain isn’t something to be considered. It’s astounding that the Supreme Court said so
0:20:51 long as the president is using a power granted by the Constitution or a statute, the president
0:20:55 never can be criminally prosecuted, no matter what.
0:21:04 This may be a bit of a rant, but here it goes. So I think liberal democracy works with a
0:21:10 healthy culture of norms and a shared commitment to a way of life that doesn’t mean consensus
0:21:16 about everything. That’s not realistic. It just means you have the institutions and
0:21:24 the cultural buy-in from the public to play the game by the rules. But we do not by any
0:21:32 sane measure have this. And what the Republican Party decided a long time ago was that they
0:21:38 were going to use one of the most undemocratic institutions in our system, the Supreme Court,
0:21:45 to execute a political project without democratic support or accountability, which they have
0:21:54 done, which means the court is now a blunt political instrument. So the role of the court
0:22:00 was supposed to be, and tell me if I’m wrong, to tell the public and the other branches
0:22:06 of government what the limits of its power are. But now the court is itself an instrument
0:22:12 of power. So in my mind, we’re not just talking about a wayward institution caught up in
0:22:18 the political winds at the moment. We’re talking about a decades-long shift that has
0:22:24 produced a government perfectly at odds with its own founding principles. I mean, given
0:22:30 all that, are you surprised we’re still functioning as well as we are?
0:22:36 Let me start by saying that I think the Supreme Court has always played the role that you
0:22:44 attribute to it now. In the late 19th century to 1936, a very conservative Supreme Court
0:22:52 struck down over 200 federal, state, and local laws-trek workers and consumers. Everything
0:22:57 you said about the current court, conservatives would say about the Warren Court. Now I agree
0:23:03 with what the Warren Court was doing and finally ending apartheid in the country, striking
0:23:08 down the Jim Crow laws. I agree with what the Warren Court was doing in equalizing voting
0:23:13 power by ending malapportionment of legislatures. I agree with what the Warren Court was doing
0:23:18 for the first time, providing basic protections under the Constitution for the rights of criminal
0:23:23 suspects and defendants. But everything you say about the court irrigating power to itself
0:23:27 is what conservatives said in criticizing the Warren Court.
0:23:32 Well, this is an important point and worth having clarity on, because if I’m understanding
0:23:40 you, the argument people like me are making against the court isn’t necessarily that it’s
0:23:45 overstepping in the way we may say it is. It’s really an ideological argument. What
0:23:51 we’re really objecting to is the ideological bent of the court and the consequences of its
0:23:57 decisions, not that it’s overreaching its bounds in any egregious way or in any way
0:24:01 that would be completely out of step with historical norms.
0:24:06 What I’m saying is that what’s wrong with the Robert’s Court’s decisions is it’s the
0:24:12 wrong values. I think their values that are inconsistent with the Constitution was about.
0:24:16 Take the example of Trump versus the United States, absolute presidential immunity. I
0:24:21 think that the framers of the Constitution as a matter of value choices did not want
0:24:26 to create a king. They did not want to have royal prerogatives. But I also think in addition
0:24:32 to being ideologically closely related to this methodological, the current court’s embracing
0:24:40 the view that the Constitution means what it did in 1787 or 1791, or 1868 when the 14
0:24:44 years adopted, is a terrible way to approach the Constitution.
0:24:50 So here’s a question. If the court isn’t doing what it’s supposed to do, which is
0:24:57 just call balls and strikes, as Chief Justice Roberts famously put it, why not get rid of
0:25:02 what’s called judicial review? Why not strip the court of its ability to overturn laws
0:25:07 that it decides aren’t constitutional? That’s something that we can, in theory, do, right?
0:25:08 Should we?
0:25:14 No, I don’t think we should do it. Let me say, I think that the idea that all the Supreme
0:25:21 Court is as an umpire calling balls and strikes is so wrong, because the Supreme Court is
0:25:26 making the rules. It’s not just calling balls and strikes. The Supreme Court has tremendous
0:25:33 discretion in how to interpret the Constitution. Umpires don’t have that kind of discretion
0:25:38 in calling balls and strikes. I think John Roberts did a tremendous disservice by using
0:25:42 that metaphor at his confirmation hearings, and he knew that wasn’t what the Supreme Court
0:25:46 does at all. But your question is, should we get rid of the Supreme Court’s ability
0:25:52 to strike down laws and enforce the Constitution? And my answer is an emphatic no, is critical
0:25:56 as I am of the Supreme Court. I think it’s essential. Some of it is what I mentioned
0:26:03 earlier. The Constitution is meant to create limits on what government can do. Those limits
0:26:09 are meaningless if they’re not enforced, and so we need the courts to do that. I’ve spent
0:26:15 my career as a lawyer, apart from what I do as a law professor, representing people who
0:26:20 have little chance to succeed in the political process. I filed the first lawsuit on behalf
0:26:25 of the Guantanamo detainees and represented Guantanamo detainees for many years. I represented
0:26:33 a homeless man in the United States Supreme Court. I’ve argued death penalty cases, and
0:26:39 I go on, these are people who aren’t going to succeed in the legislative process. When’s
0:26:45 the last time that a legislature ever adopted a law to expand the rights of criminal suspects
0:26:52 or increase the rights of prisoners? My clients may lose much more often than they win in
0:26:56 the United States Supreme Court, but their only hope is having an institution like the
0:26:59 court that’s there, and sometimes they do win.
0:27:07 You said that John Robert’s metaphor of an umpire calling balls and strikes is wrong.
0:27:13 What is the right metaphor for what Supreme Court justices do?
0:27:19 I can describe it. I’m not sure I have a metaphor, though. I think what the Supreme Court does
0:27:25 is take the very broad language of the Constitution and apply it to the current problems in modern
0:27:34 circumstances. They have tremendous discretion. After all, what’s cruel and unusual punishment?
0:27:40 What’s due process of law? What does freedom of speech mean? You’re not going to find
0:27:47 the answers to that from looking at 1791 or 1787. I mean, what did James Madison think
0:27:53 about how social media should be regulated? It’s an absurd question. The Supreme Court
0:27:58 had a case a couple of years ago, but a high school football coach who would go to the
0:28:03 50-yard line and pray after games. Justice Neil Gorsuch said, “We determined the meaning
0:28:08 of the Establishment Clause of the First Amendment by looking at what the founding fathers thought.”
0:28:12 What did the founding fathers think about a football coach at a public school going
0:28:16 down to the field and praying? It’s an absurd question.
0:28:23 We asked the Supreme Court to take the broad language of the Constitution and apply it
0:28:28 to our current circumstances. I struggled to come up with a metaphor, but it is not
0:28:36 about calling balls and strikes. What can we do about the Supreme Court? What
0:28:44 should we do? How do we tackle this particular problem, which, as you said, is a value problem?
0:28:51 It’s not something that can be solved through facts or empirical evidence. It’s just simply
0:28:56 a split in vision and values. I don’t know what you do about that.
0:29:00 Win presidential elections. There is that.
0:29:09 If Hillary Clinton had won in 2016, if Hillary Clinton had replaced three Supreme Court justices
0:29:15 rather than Donald Trump replacing those justices, we wouldn’t have had Roe v. Wade overruled.
0:29:19 We wouldn’t have had the affirmative action cases overruled. We wouldn’t have the court
0:29:26 saying corporations have the right to discriminate based on their speech activities when they’re
0:29:32 violating state law. We wouldn’t have a court creating broad absolute immunity and so on.
0:29:38 That election in 2016 mattered enormously for what the Supreme Court would be, but let
0:29:41 me relate it to the November 2024 presidential election.
0:29:48 I predict that if Donald Trump wins and there’s a Republican Senate, justices Thomas and
0:29:55 Alito who are now 76 and 74 will retire and let Trump pick conservatives who are in their
0:30:01 late 40s or early 50s. Individuals will be on the court for three or four decades, making
0:30:05 sure that those seats are in conservative hands long beyond my life.
0:30:10 I think also a Democrat wins and there’s a Democratic Senate, Sonia Sotomayor will step
0:30:17 down at some point, and there will be then a liberal in that seat for years to come.
0:30:22 Even though it may be less obvious than 2016, presidential elections really matter and they’re
0:30:27 the only way in which we can change the direction of the Supreme Court.
0:30:35 I’ve had a few conversations about this idea of abolishing the Supreme Court. That doesn’t
0:30:40 sound very realistic to me. If you have an opinion on that, feel free to share it. But
0:30:46 there are other ideas floating around. I think the Biden White House floated the idea that
0:30:54 they would reveal a plan to seek legislation, to establish term limits for justices and
0:31:02 an ethics code. Do you see any fruit there? Does any of that seem wise or doable in your
0:31:03 estimation?
0:31:10 I think an ethics code passed by Congress would be wise and doable. There was no ethics
0:31:17 code for the Supreme Court until adopted its own in November of 2023. Then it was a watered
0:31:23 down version compared to what applies to all other federal and all state judges. They took
0:31:30 the word “shall” which is mandatory and made it “should” which is advisory. They had
0:31:37 no enforcement mechanism. I think that the lack of an ethics code for the Supreme Court,
0:31:42 the ethical question of some of the justices, tarnishes not just that court, but all courts
0:31:50 in the country. In terms of term limits, I strongly favor 18-year non-renewable terms.
0:31:56 I favored it for a very long time. My own view, unfortunately, is I don’t think that
0:32:02 Congress can impose term limits, certainly not ones on current justices, by statute.
0:32:06 I think it takes a constitutional amendment. The understanding of Article III has always
0:32:12 been, when somebody is confirmed for the Supreme Court, it’s their position for life unless
0:32:17 they choose to resign. I don’t think Congress can change that by statute. I think it would
0:32:22 take a constitutional amendment. A constitutional amendment could make it retroactive and apply
0:32:27 it to current justices. I would favor such a constitutional amendment, but for the reasons
0:32:32 we talked about earlier, it seems so unlikely that there would be such a constitutional
0:32:37 amendment. I don’t know the constituency that would do the hard work to make such a constitutional
0:32:49 amendment happen.
0:32:53 Support for the show comes from Into the Mix, a Ben and Jerry’s podcast about joy and justice
0:32:59 produced with Vox Creative. In season three of this award-winning podcast, Into the Mix
0:33:04 is covering stories on the ordinary people fighting for justice in their local communities,
0:33:08 starting with the fight against the workhouse, a penitentiary in St. Louis known for its abject
0:33:14 conditions, mold, and pest infestations, and its embrace of the cash bail system.
0:33:18 Host Ashley C. Ford interviews Ainez Bordeaux, who spent a month in the workhouse when she
0:33:22 couldn’t afford her $25,000 bail.
0:33:27 Experiencing what I experienced in watching other women go through it and know that there
0:33:38 were thousands before us, and there were thousands after us, who had experienced those same things.
0:33:40 That’s where I was radicalized.
0:33:43 Eventually her charge was vacated, but the experience changed her.
0:33:47 They’re starting a campaign to close the workhouse, so are you interested? And I was
0:33:50 like, hell yeah. Hell yeah, I’m interested.
0:33:54 You can hear how she and other advocates fought to shut down the workhouse, and won on the
0:33:58 first episode of this special three-part series out now.
0:34:13 Subscribe to Into the Mix, a Ben and Jerry’s podcast.
0:34:18 Well, let’s talk about some of the reforms that are at least in theory possible, and
0:34:22 you’ve discussed a lot of them in the book, right?
0:34:27 I mean, there’s a national popular election of the president, allocation of Senate seats
0:34:34 based on population, the abolition or reform of the filibuster, gerrymandering, limits on
0:34:36 campaign spending, all of that.
0:34:42 Of all the proposed reforms, what would you say is most urgent of those, and feel free
0:34:45 to say anything you like about any of them?
0:34:53 Sure. I want to separate what’s easiest to do from what’s most urgent. I think what’s
0:35:00 easiest to do is we were talking about ethics code for the justices. Congress could do that.
0:35:06 The Senate could eliminate the filibuster by itself. That doesn’t take a statute, doesn’t
0:35:11 take a constitutional amendment, doesn’t take a new constitution. But if you ask me,
0:35:16 who I think are the most important reforms, get rid of the Electoral College, but that
0:35:22 would take a constitutional amendment, change two senators per state, I think that would
0:35:29 take a new constitution. So I think we have to focus both on what’s realistic in the short
0:35:36 term versus what’s essential in the longer term, the harder to get to.
0:35:39 What would you say is most essential, ultimately?
0:35:45 If I had a magic wand to change the constitution, most essential, eliminate the Electoral College
0:35:48 and eliminate two senators per state.
0:35:54 And the reforms, I mean, do you think any of them are going to happen? I mean, if you
0:36:01 had to bet your savings, which one do you think happens and how long does it take?
0:36:08 I don’t think that the path that this country is on is one that’s sustainable in the long
0:36:14 term. I hope I am wrong. I’ve never before written a book where I say at the end that
0:36:19 I hope everything that I’ve said in this book is incorrect. But I think there’s a widespread
0:36:25 sense on both the left and the right that there’s a crisis facing our democracy. And
0:36:32 the question is, where will it go? Will we go to a more authoritarian government? I was
0:36:38 chilled to see JD Vance, now the Republican candidate for vice president, saying that
0:36:46 what the country should emulate is Hungary and Viktor Orban and autocrat. And it is possible
0:36:50 that that is the direction that this country will go. As I say on the first page of the
0:36:56 book, no democracy lasts forever. Democracies are there until they’re not. But my hope is
0:37:02 that when the country sees that abyss, it will recoil and it will do the things to fix
0:37:08 it. And so I don’t think there’s going to be a new constitution next year or maybe in
0:37:14 my lifetime, but it’s time to begin thinking of one that corrects these problems. And in
0:37:21 the shorter term, there can be things like an ethics code passed by Congress. There can
0:37:27 be Congress eliminating partisan gerrymandering for congressional seats. That just takes a
0:37:31 statute. There can be the elimination of the filibuster. And we can go on with things that
0:37:36 could be done in the shorter term and done without a constitutional amendment or a new
0:37:37 constitution.
0:37:43 You don’t think this is sustainable in the long term. What do you mean by long term?
0:37:48 20 years, 50 years, 100 years?
0:37:56 I don’t know. I’m terribly afraid of what a Trump presidency will mean in terms of our
0:38:02 democracy. And I think there are significant number of people in this country, according
0:38:08 to opinion polls, who express doubts that where the democracy is the best form of government.
0:38:13 Well, look, there’s a stat in the book that it feels germane, given what you just said.
0:38:20 And I’m not sure if people are aware of this, but they should be. And the stat is, in 1964,
0:38:28 77% of Americans trusted government. Today, only 20% do. Now, if you’re looking for a
0:38:35 flashing, blinking red light that says danger, danger, danger, that’s it. That collapse
0:38:45 of trust, that crisis of legitimacy, really, is itself a existential crisis for our political
0:38:48 system. I don’t know how it could be seen otherwise.
0:38:56 I strongly agree. And we can talk about all of the things that gave rise to government
0:39:01 losing the face of the people. But then you get to the question, how long can that form
0:39:05 of government survive if no one has confidence in it?
0:39:13 And again, one of the basic problems for me is that because everything is political now,
0:39:20 there are no real guardrails or mutually respected norms of fairness. That’s the game of liberal
0:39:23 democracy. And we’re not really playing that game anymore. The Republicans aren’t playing
0:39:27 that game anymore, to be sure. And that means Democrats can’t either or they can try, but
0:39:31 it won’t work for the same reason that no game works unless all the players respect the
0:39:35 rules. You can’t have half the people on the pitch playing soccer and the other half playing
0:39:41 rugby. It just doesn’t work. All of which is to say, I don’t know how these things,
0:39:47 any of them really, get done. Because as you admit, doing so will have explicit advantages
0:39:54 and disadvantages for each side. And so you can’t get enough consensus to do anything.
0:39:57 It just seems to be the doom loop we’re stuck in.
0:40:05 I fear so that I also believe that there are solutions. And again, my hope is, is the country
0:40:11 faces could be an abyss of democracy. They’ll then recoil and come up with solutions. But
0:40:18 I want to strongly agree with what you say, that the Constitution assumes that those who
0:40:25 occupy office will act in good faith and follow certain norms. Let me give you a couple of
0:40:30 examples. Throughout American history, when there’s been a vacancy on the Supreme Court,
0:40:36 even late in a president’s term, presidents have pointed and senators have confirmed there
0:40:42 is a vacancy. In 1956, just a month before the presidential election, President Eisenhower
0:40:49 named a Democrat, William Brennan, the Senate confirmed. What we saw instead was when Antonin
0:40:55 Scalia died in February 2016, Mitch McConnell, the Senate Majority Leader said, we’re not
0:40:59 going to hold hearings or we’re not going to consider whoever President Obama nominates.
0:41:04 We shouldn’t let a lame duck president pick Supreme Court nominee. Nonetheless, when Ruth
0:41:09 Bader Ginsburg died in September of 2020, the Republicans rushed through and confirmed
0:41:16 Amy Coney Barrett just days before the presidential election. Throughout American history, until
0:41:24 January of 2021, those who were incumbent presidents who lost left the White House. It
0:41:32 started with John Adams in 1800. It continued through George H. W. Bush in 1992. But Donald
0:41:39 Trump did everything he could to subvert the election. These are examples of norms that
0:41:44 have to be followed just being transgressed and ignored.
0:41:50 You actually posed an interesting question pretty early in the book. You say, was it
0:41:55 better to have one nation with a constitution that institutionalized slavery or would it
0:42:01 have been better for the country in 1787 to just split into two smaller countries? You
0:42:06 do sidestep this a little bit in the book, but I’ll push you here because I really want
0:42:11 to know the answer. Would it have been better? And what about now? Would we be better off
0:42:15 now if that had happened, if we had split?
0:42:22 I ask my students that every time I teach constitutional law, whether to law students
0:42:28 or undergraduates, from the perspective of hindsight, I would say it would have been
0:42:36 better to have two countries, a country that repudiated slavery and a country that accepted
0:42:42 slavery. I think the reason that those who strongly favored abolition thought one country
0:42:49 was better is they thought that slavery would, of its own course, go out of existence. That
0:42:56 didn’t happen. Slavery dominated every political issue up until the Civil War. In terms of
0:43:04 now, I think it is much better that the country stay together and it be one United States.
0:43:11 On the other hand, I worry that if we don’t fix the flaws that there will be great pressure
0:43:16 towards the session, not next year, but in the longer term, because I think the hard
0:43:22 question is, is what unites us as a country greater than what divides us as a country?
0:43:28 I’ll make to me what I think is a re-frightening prediction. I think if Donald Trump wins in
0:43:34 November of 2024 and the Republicans take both houses of Congress, we will hear the
0:43:40 first serious discussion of the session since the Civil War. I think there will be discussion
0:43:46 of Cal accent. I don’t think much will come of it now, but from that discussion, the longer
0:43:54 term could be quite cataclysmic changes. I am not advocating it. I am not predicting
0:44:00 that it’s imminent. But I do think the divide between the red states and the blue states,
0:44:06 for example, between, say, Alabama and California, are so great that there will be consideration
0:44:10 doesn’t make sense. And I think it’s crucial if we talk about session, I mean, it doesn’t
0:44:15 have to be like the Civil War of the country splitting in two. It could be much more like
0:44:20 a European Union, which much more devolution of power to the states and a much weaker national
0:44:25 government is a way of trying to accomplish something like the session.
0:44:31 And again, speaking of data points, people should know, and I got this from your book,
0:44:42 in a 2021 poll, 41% of Biden voters and 52% of Trump voters, quote, somewhat agreed that
0:44:48 it would be best to split the country by red and blue states. I don’t know what those
0:44:54 numbers are today. They’re probably comparable to that. And assuming that they are, those
0:44:59 are pretty big numbers. That’s a lot of people. That’s a lot of people. And again, it’s just
0:45:05 an indicator of I think how close to the precipice we actually are, even though it’s hard to
0:45:10 really feel that because you just wake up every day and think, you know, that the game
0:45:15 will go on, but it doesn’t, not forever.
0:45:21 And that’s the point of the book. And it’s why I titled it, No Democracy Lasts Forever.
0:45:26 I think that we as a country need to think about how we got to this point and how do
0:45:33 we get out of it and preserve a democracy, advance freedom and equality?
0:45:41 Let’s just say a Democrat wins in November. However unlikely that does seem at the moment.
0:45:45 Apart from something obvious that you’ve already mentioned, like, you know, Supreme Court,
0:45:51 right? I mean, it does matter, certainly. But in the slightly longer term, where does
0:45:55 that really get us? Do we just keep limping along for another four years and then hold
0:46:01 on tight for the next one and hope we don’t tumble into the abyss? Does that really solve
0:46:06 anything? Is it just another band-aid, another bridge to the next election, but still all
0:46:12 the fundamental problems are still there and probably go unaddressed for the most part?
0:46:19 I don’t know is the answer. You know, in my optimistic self, I would say maybe we could
0:46:28 find a president who could unify the country. I think that there was an opportunity to do
0:46:36 that at the time of COVID. One of the things that unifies countries are crises. The last
0:46:43 time our country seemed really together was after 9/11 when the president had over 90%
0:46:49 approval ratings. And I think if George W. Bush hadn’t squandered it with the terrible
0:46:55 war in Iraq and Afghanistan, we might have remained united. I was hopeful that Barack
0:47:02 Obama would unify the country. Unfortunately, for many reasons, including racism, that Republicans
0:47:07 were determined to undermine his presidency from the beginning. But maybe we can’t have
0:47:11 a president or a crisis that unifies us. I think if Donald Trump had at the beginning
0:47:18 of COVID said, “We really need to come together as a country and we need to trust science
0:47:23 and medicine and do what’s necessary to minimize death,” our country might have come together.
0:47:26 Donald Trump would have won the presidency in 2020, but that’s not who Donald Trump
0:47:31 is or was at that moment. But I think there could still be somebody who unifies us. One
0:47:38 of the things to keep in mind is how strong the American economy is. Usually what undermines
0:47:46 democracy is economic crisis. And then there’s the tendency to want a different form of government
0:47:52 and authoritarianism. We have incredibly low unemployment. Yes, there are incredible wealth
0:47:59 disparities that need to be solved. Yes, inflation’s been a problem. But so long as
0:48:05 the economy remains strong, I think there’s the possibility of having a president who
0:48:09 can unify us. But that may be naive and unrealistic.
0:48:15 I’m sure you’ve read Plato’s Republic. Maybe Plato was right about democracy, that they
0:48:20 follow this familiar pattern of decline. And in the end, they’re just swallowed up by the
0:48:27 chaos they unleash. And look, I think America is the greatest political experiment in human
0:48:34 history. But as the title of your book suggests, nothing lasts forever. No civilization, no
0:48:41 empire, no democracy. And ours will end too. And it’s probably true that every system has
0:48:48 contradictions and trade-offs and vulnerabilities. And our system may in the end be the most
0:48:55 desirable, given all of that. I don’t know. But it does seem to be buckling a little bit
0:48:58 under the weight of its own contradictions.
0:49:05 And that’s why conversations like this are so important. As I said, it’s why I chose
0:49:11 to write the book. Anything that’s flawed can be repaired if there’s the will to do
0:49:12 it.
0:49:20 We still have agency, no matter how hard that is to appreciate sometimes. And I guess it’s
0:49:28 not over until it’s over. Erwin Chemerinsky, this was a pleasure. Thanks for being here.
0:49:30 Truly my pleasure. Thank you.
0:49:36 The book is called No Democracy Last Forever, How the Constitution Threatens the United
0:50:02 States.
0:50:30 Thank you.
0:50:38 Oh, hey, one last thing. How’d you like to help us make a new podcast? We’re working
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0:51:25 produced with Vox Creative. Into the Mix is back for a new season and welcomes you in
0:51:30 with four new stories that take listeners beyond the headlines and into the lives of
0:51:35 ordinary people fighting for justice in their communities. Starting with Ainez Bordeaux,
0:51:40 an activist and St. Louis native who fought to shut down the workhouse, a notorious pre-trial
0:51:44 detention center that she says function like a debtor’s prison.
0:51:48 Subscribe to Into the Mix, a Ben and Jerry podcast, to listen to the first episode of
0:51:51 this special three-part series out now.
0:51:54 (upbeat music)
0:00:07 produced with Vox Creative.
0:00:12 Inez Bordeaux is a self-described hellraiser, and she became an activist after being caught
0:00:14 up in the criminal legal system.
0:00:19 When she couldn’t afford her bond and without a trial, Inez was sent to a St. Louis detention
0:00:24 facility known as the Workhouse, notorious for its poor living conditions.
0:00:29 Here how she and other advocates fought to shut it down, and one, on the first episode
0:00:32 of this special three-part series, Out Now.
0:00:36 Subscribe to Into the Mix, a Ben & Jerry’s podcast.
0:00:39 Here’s an uncomfortable question.
0:00:43 What if the thing that’s going to finally destroy our country once and for all is the
0:00:50 document that created it in the first place?
0:00:55 The Constitution of the United States is a brilliant political document, but it was
0:01:03 written in the late 1700s, in a very different world than the one we currently inhabit.
0:01:09 It was an agrarian society, a huge percentage of the population was enslaved, the rights
0:01:14 of citizenry were confined to white property-owning males.
0:01:19 Also, there were no iPhones, no deep fakes, no online polling.
0:01:28 And forget about podcasting, the earliest audio recordings were still a century away.
0:01:33 Almost everything about the way we live has completely changed, except for how our government
0:01:35 works.
0:01:40 And that’s because even though the Constitution can, in theory, be amended, it has become
0:01:43 almost impossible to actually amend.
0:01:51 And the reasons for that inertia are embedded in the document itself.
0:02:04 I’m Sean Elling, and this is the Gray Area.
0:02:07 Today’s guest is Erwin Chemerinsky.
0:02:13 He’s the Dean of the Law School at UC Berkeley and the author of a new book called No Democracy
0:02:18 Last Forever, How the Constitution Threatens the United States.
0:02:24 Chemerinsky makes a pretty convincing case that America is in trouble if we don’t find
0:02:32 a way to seriously reform or even rewrite the Constitution, which, sure, okay, is that
0:02:36 even possible, and what happens if it’s not?
0:02:43 I invited him on the show to find out.
0:02:47 Erwin Chemerinsky, welcome to the show.
0:02:49 It’s a pleasure to talk with you.
0:02:56 We scheduled this pod several weeks ago, and obviously in the meantime, quite a few consequential
0:02:58 things have happened politically.
0:03:04 Let me just start by getting your reaction to what happened and where we are now and
0:03:06 how you’re feeling about the state of our democracy.
0:03:14 I titled the book No Democracy Last Forever, having a strong sense that our democracy faces
0:03:15 crisis.
0:03:19 That’s only been intensified by recent developments.
0:03:25 Obviously, the assassination attempt at Donald Trump was tragic, but it was stunning at the
0:03:31 Republican Convention to hear people say that it’s not being a successful assassination
0:03:37 was God’s will and that somehow God is responsible for Donald Trump being a leader in the Republican
0:03:38 Party.
0:03:43 To me, that’s very frightening as a thought, let alone as rhetoric.
0:03:50 This follows an enormously eventful Supreme Court term, which culminated on July 1st with
0:03:57 the Supreme Court giving the president very broad immunity from any criminal prosecution.
0:04:03 All of this, I say, intensifies my sense that we’re a democracy in crisis.
0:04:07 Yeah, it’s a little too much to keep up with.
0:04:12 It feels like crisis piling on top of crisis, and it’s a little dizzying, but let’s see
0:04:17 if we can wade our way through it a bit here.
0:04:22 Maybe you can just explain your thesis as simply as you can.
0:04:27 Why has the Constitution become a threat to American democracy?
0:04:34 There were choices that were made in order to get the Constitution ratified.
0:04:42 There were mistakes at the time, but because of shifts in population and partisan alignment,
0:04:44 they become much more salient in recent years.
0:04:47 Let me give you examples.
0:04:48 The Electoral College.
0:04:53 The Electoral College was a terrible way of choosing a president, because it should
0:04:57 be the person who gets the most votes who’s president.
0:05:01 The Electoral College was chosen based on distrust of the people.
0:05:06 It was chosen to help states with enslaved populations.
0:05:10 But in the 20th century, the Electoral College didn’t matter.
0:05:16 Now once in those hundred years, did the candidate who lost the popular vote win in the Electoral
0:05:23 College, but in this century already twice, the candidate who lost the popular vote win
0:05:27 in the Electoral College, and it almost happened two other times.
0:05:32 If Ohio had gone for John Kerry in 2004, he would become president though losing the popular
0:05:33 vote.
0:05:39 If 42,000 votes in three states had come out differently in 2020, Donald Trump would have
0:05:43 been president despite losing by 7 million votes.
0:05:48 This changed the way in which there have been population shifts, the way in which partisan
0:05:54 alignment means that we’re going to continue to face for the foreseeable future, the reality
0:06:00 that we’re going to have presidents who lose the popular vote, even by a lot, winning Electoral
0:06:01 College.
0:06:07 Another choice that was made in 1787 that was a mistake, but haunts us today, is two senators
0:06:09 per state.
0:06:14 At the time the Constitution was written, the difference from those popular state, Virginia
0:06:18 and the least popular state, Delaware, was about 9 to 1.
0:06:26 Today the difference in population between Wyoming and California is 68 to 1.
0:06:33 In the last session of Congress, there were 50 Democrats and 50 Republicans, but the 50
0:06:39 Democratic senators represented 40 million more people than the 50 Republican senators.
0:06:45 And the filibuster, which changed greatly in form in the 1970s, makes it possible for
0:06:51 small minority senators, representing a small minority of the population, to be able to
0:06:53 block virtually any legislation.
0:06:59 I think a third tragic choice that was made then was giving Supreme Court justice a life
0:07:00 tenure.
0:07:04 At the time, the average life expectancy was 36 years old.
0:07:11 Now we face Clarence Thomas having been confirmed in 1991, when he was 43 years old.
0:07:19 Remaining on the court, days till he’s 90, 47 years, Amy Coney Barrett was 48 when she
0:07:20 was confirmed.
0:07:27 If she stays until she’s 87, the age Justice Ginsburg passed away, Barrett will be a justice
0:07:29 to 2058.
0:07:34 It’s too much power in one person’s hands for too long a period of time.
0:07:41 From 1787 to 1970, the average tenure of Supreme Court justice was 15 years.
0:07:47 For the justice of an appointed since 1970, they’re 10 years average, 27 years.
0:07:53 A fourth bad choice made in drafting the Constitution was how difficult it is to amend.
0:07:58 It takes two-thirds of both House of Congress and three-quarters of the states.
0:08:05 Since 1791, when the Bill of Rights were adopted, it’s only been amended 17 times.
0:08:09 And two of those were to adopt and repeal prohibition.
0:08:15 And finally, and maybe the worst set of choice at all, were those made with regard to race.
0:08:20 The Constitution very much protected the institution of slavery.
0:08:25 And those choices with regard to race have haunted the country throughout its history.
0:08:31 And what I argue in the book is that these flaws in the Constitution made much worse
0:08:36 by a series of Supreme Court decisions in recent years have contributed greatly to the
0:08:37 crisis of American democracy.
0:08:45 There’s so much going on there, there’s a lot to say about the Supreme Court and we’re
0:08:49 going to spend a good amount of time on that shortly, so I’ll kind of table that for the
0:08:50 moment.
0:08:55 So, if you look at all these problems you just listed, the treatment of race, the Electoral
0:09:02 College, the Unrepresentative Senate, and so on, if you were rank ordering the flaws
0:09:05 with the Constitution, how would you rank them?
0:09:11 What to you is the most fatal or the most problematic or the most daunting?
0:09:18 In terms of the structural things that I mentioned, I would say the Electoral College and two
0:09:24 senators per state posed the greatest threat to democracy.
0:09:28 If you ask me through the history of the United States, what was the worst choice?
0:09:33 It was that with regard to race, because I believe that what the Framers did with regard
0:09:39 to slavery and race has really haunted this country and continues to throughout its history.
0:09:50 So the Unrepresentative Senate and the Electoral College, is there any other advanced liberal
0:09:55 democracy in the world that has equivalent institutions or analogues to either of those
0:09:58 or are they unique to our system?
0:10:01 They’re unique to the United States.
0:10:06 There’s not any other country in the world that has a popular election for its chief
0:10:11 executive or the person who loses the popular vote can be chosen.
0:10:15 In parliamentary systems, there might be a way in which you can put together coalitions
0:10:20 to make that happen, but nothing like the Electoral College and nothing like the United
0:10:30 States Senate, which is every state gets two senators, regardless the size of the state.
0:10:38 To the extent the Constitution is anti-democratic in all the ways you’ve just outlined, the
0:10:45 argument in defense of that is that those features safeguard democracy over the long
0:10:52 term, that we need a firewall against all the vulnerabilities of democracy in order
0:10:55 to protect it from itself.
0:10:58 How do you respond to this line of argument?
0:10:59 Do you buy it?
0:11:03 Yes and no, which is probably a typical law professor answer.
0:11:05 Well, tell me both.
0:11:06 Give me the argument in both directions.
0:11:08 I will.
0:11:13 The yes is that the Constitution is inherently anti-democratic.
0:11:19 The Constitution is meant to limit what the majority can do at any point in time.
0:11:20 I believe in that.
0:11:25 I don’t think it should be as difficult to change as the current Constitution, but I
0:11:29 accept we should be governed by a document that’s more difficult to change than just
0:11:31 any other statute or ordinance.
0:11:33 I also believe in checks and balances.
0:11:39 I think one of the good things in the Constitution to help prevent tyranny is the diffusion of
0:11:42 power among several branches of government.
0:11:48 On the other hand, I don’t think the Electoral College helps to prevent tyranny.
0:11:53 I know the Electoral College is in any way a check on democracy.
0:11:56 It’s just a terrible way of choosing a president.
0:12:02 I don’t think two senators per state has anything to do with protecting our democracy.
0:12:06 My answer is, yes, there are features in the Constitution to protect democracy, and that’s
0:12:07 a good thing.
0:12:11 But the things that we’re talking about now, the Electoral College and the Senate don’t
0:12:14 in any way contribute to protecting democracy.
0:12:19 If you had to steelman the case for the Electoral College or even the Senate, could you do it?
0:12:24 I mean, is there, because I struggle to find a defensible case for it, really, on almost
0:12:27 any grounds that make any sense to me.
0:12:31 But I’m sure really smart lawyers somewhere have made these arguments.
0:12:37 I’ve read all the literature with regard to the Electoral College.
0:12:43 And the argument that’s most frequently made is that the Electoral College causes candidates
0:12:51 for president to take the smaller states seriously in a way that they wouldn’t if they just could
0:12:54 focus on the most popular states.
0:13:01 The problem with that argument is that candidates pay attention to some states much more than
0:13:04 others with the Electoral College.
0:13:11 There are not going to be many ads for president in the fall of 2024 in California, because
0:13:14 it’s clear where California is going to go.
0:13:18 The candidates for president aren’t going to spend much time campaigning in Texas because
0:13:20 they know where it’s going to go.
0:13:29 The campaigns are going to focus on Wisconsin, Michigan, Pennsylvania, Georgia, Nevada, Arizona.
0:13:31 That’s already a feature of the system.
0:13:36 Yes, the Electoral College gives an incentive to focus on some states more than others.
0:13:39 So would popular election of the president, but that doesn’t seem to be a reason to keep
0:13:41 the Electoral College.
0:13:48 In terms of two senators per state, you have to really believe in states as states and
0:13:53 state sovereignty in order to say it should be two senators per state.
0:13:59 It seems so absurd to me, as I said, that California has 68 times more people than Wyoming, but
0:14:03 each gets two senators in the United States Senate.
0:14:04 That’s preposterous.
0:14:06 I mean, I’m sorry.
0:14:08 There’s no steel manning that.
0:14:12 It’s an affront to the most minimal definition of democracy.
0:14:13 I agree.
0:14:14 Okay.
0:14:23 So I think we both agree that it is one of the greater virtues of the Constitution that
0:14:32 it left room for revision, but that feature of it seems to have been undercut by this bloated
0:14:36 inert dysfunctional system it created.
0:14:38 That seems to be the cardinal problem here.
0:14:43 There is actually mechanisms for fixing these things, but we now have a system that damn
0:14:46 near forbids it.
0:14:52 The framers of the Constitution were trying to change what it had been under the Articles
0:14:53 of Confederation.
0:14:59 Under the Articles of Confederation took unanimous agreement of the states to amend that document.
0:15:04 They thought they were making it easier by two-thirds of both houses of Congress and
0:15:06 three-fourths of the states.
0:15:13 The problem with that, of course, is that in a time when the country is politically polarized,
0:15:18 it is so difficult to imagine two-thirds of both houses of Congress and three-quarters
0:15:24 of the states agreeing to anything that isn’t obvious, and even then it’s unlikely to get
0:15:26 agreement.
0:15:33 The more the Supreme Court becomes originalist and limits the meaning of the Constitution
0:15:38 to what it was in 1787, the more desperate it is that we would be able to change the
0:15:42 Constitution by amendment, and yet that’s virtually impossible.
0:15:57 [Music]
0:16:01 Support for the show comes from Into the Mix, a Ben and Jerry’s podcast about joy and
0:16:04 justice produced with Vox Creative.
0:16:09 In season three of this award-winning podcast, Into the Mix is covering stories on the ordinary
0:16:13 people fighting for justice in their local communities, starting with the fight against
0:16:18 the workhouse, a penitentiary in St. Louis known for its abject conditions, mold, and
0:16:22 pest infestations, and its embrace of the cash bail system.
0:16:26 Post Ashley C. Ford interviews Ainez Bordeaux, who spent a month in the workhouse when she
0:16:30 couldn’t afford her $25,000 bail.
0:16:35 Experiencing what I experienced in watching other women go through it and know that there
0:16:46 were thousands before us, and there were thousands after us, who had experienced those same things.
0:16:48 That’s where I was radicalized.
0:16:52 Eventually her charge was vacated, but the experience changed her.
0:16:54 They’re starting a campaign to close the workhouse, so are you interested?
0:16:58 And I was like, hell yeah, hell yeah, I’m interested.
0:17:02 You can hear how she and other advocates fought to shut down the workhouse, and won on the
0:17:06 first episode of the special three-part series Out Now.
0:17:18 Subscribe to Into the Mix, a Ben and Jerry’s podcast.
0:17:23 We’re hovering a bit at 100,000 feet, and I want to focus on the situation with the
0:17:29 Supreme Court for lots of obvious reasons, most notably that it’s very present in our
0:17:32 current politics.
0:17:34 So talk to me about the Supreme Court.
0:17:42 What is it supposed to do according to the Constitution, and what is it actually doing?
0:17:50 I think the Supreme Court is there, most of all, to enforce the Constitution, to give
0:17:55 a document written in broad language contemporary meaning.
0:18:01 John Marshall, back in McCulloch v. Merrill in 1819, said, “We must never forget that
0:18:03 it’s a Constitution we’re expounding.
0:18:07 Constitutionment we adapted and endure for ages to come.”
0:18:13 The Constitution is meant to limit what the government can do, the kind of check we were
0:18:18 talking about before, and the limits of the Constitution only have meaning if they’re
0:18:21 enforced, and that’s what the courts are about.
0:18:29 I think that the current Supreme Court, though, for so many reasons, is itself a threat to
0:18:31 democracy.
0:18:38 Some of that is decisions of the Supreme Court, like Citizens United v. Federal Election Commission,
0:18:43 that corporations can spend a limited amount of money at Candice Elected were defeated,
0:18:50 Shelby County v. Holder, that gutted key provisions of the Voting Rights Act, Roachow v. Common
0:18:54 Cause that says that no federal court can hear a challenge to partisan gerrymandering
0:19:00 and how egregious. I also think that Hall of Shame is going to include Trump v. United
0:19:07 States from July 1st, 2024, that gives the president very broad, absolute immunity from
0:19:10 criminal prosecution for almost anything done in office.
0:19:15 On that one in particular, there was a lot of breathless coverage. The example was, and
0:19:20 the president could order SEAL Team 6 to assassinate a rival, and it would be totally fine because
0:19:27 immunity. Is that decision as bad and absurd as it sounds on its face, that the president
0:19:34 can quite literally do just about anything he or she wants and be granted immunity from
0:19:35 any kind of prosecution?
0:19:43 Yes, it’s that bad. What the Supreme Court said was, anytime the president is using
0:19:49 a power created by the Constitution or a statute, the president cannot be criminally
0:19:55 prosecuted. So if the president uses his power as Commander-in-Chief to call out the
0:19:59 military to assassinate a political rival, that’s part of the president’s constitutional
0:20:04 powers, Commander-in-Chief. If the president says to the Justice Department, “I want
0:20:10 you to prosecute somebody as retribution,” and this shouldn’t be hypothetical because
0:20:15 Donald Trump has said, including the debate, he wants to do that. Absolute immunity from
0:20:21 the president. If a president wants to sell pardons, since the pardon power is an official
0:20:26 power under the Constitution, the president can’t be prosecuted. And the Supreme Court
0:20:34 said explicitly that the motive of the president doesn’t matter. So the fact that the president
0:20:41 is acting to get rid of a political rival or for retribution or for personal monetary
0:20:46 gain isn’t something to be considered. It’s astounding that the Supreme Court said so
0:20:51 long as the president is using a power granted by the Constitution or a statute, the president
0:20:55 never can be criminally prosecuted, no matter what.
0:21:04 This may be a bit of a rant, but here it goes. So I think liberal democracy works with a
0:21:10 healthy culture of norms and a shared commitment to a way of life that doesn’t mean consensus
0:21:16 about everything. That’s not realistic. It just means you have the institutions and
0:21:24 the cultural buy-in from the public to play the game by the rules. But we do not by any
0:21:32 sane measure have this. And what the Republican Party decided a long time ago was that they
0:21:38 were going to use one of the most undemocratic institutions in our system, the Supreme Court,
0:21:45 to execute a political project without democratic support or accountability, which they have
0:21:54 done, which means the court is now a blunt political instrument. So the role of the court
0:22:00 was supposed to be, and tell me if I’m wrong, to tell the public and the other branches
0:22:06 of government what the limits of its power are. But now the court is itself an instrument
0:22:12 of power. So in my mind, we’re not just talking about a wayward institution caught up in
0:22:18 the political winds at the moment. We’re talking about a decades-long shift that has
0:22:24 produced a government perfectly at odds with its own founding principles. I mean, given
0:22:30 all that, are you surprised we’re still functioning as well as we are?
0:22:36 Let me start by saying that I think the Supreme Court has always played the role that you
0:22:44 attribute to it now. In the late 19th century to 1936, a very conservative Supreme Court
0:22:52 struck down over 200 federal, state, and local laws-trek workers and consumers. Everything
0:22:57 you said about the current court, conservatives would say about the Warren Court. Now I agree
0:23:03 with what the Warren Court was doing and finally ending apartheid in the country, striking
0:23:08 down the Jim Crow laws. I agree with what the Warren Court was doing in equalizing voting
0:23:13 power by ending malapportionment of legislatures. I agree with what the Warren Court was doing
0:23:18 for the first time, providing basic protections under the Constitution for the rights of criminal
0:23:23 suspects and defendants. But everything you say about the court irrigating power to itself
0:23:27 is what conservatives said in criticizing the Warren Court.
0:23:32 Well, this is an important point and worth having clarity on, because if I’m understanding
0:23:40 you, the argument people like me are making against the court isn’t necessarily that it’s
0:23:45 overstepping in the way we may say it is. It’s really an ideological argument. What
0:23:51 we’re really objecting to is the ideological bent of the court and the consequences of its
0:23:57 decisions, not that it’s overreaching its bounds in any egregious way or in any way
0:24:01 that would be completely out of step with historical norms.
0:24:06 What I’m saying is that what’s wrong with the Robert’s Court’s decisions is it’s the
0:24:12 wrong values. I think their values that are inconsistent with the Constitution was about.
0:24:16 Take the example of Trump versus the United States, absolute presidential immunity. I
0:24:21 think that the framers of the Constitution as a matter of value choices did not want
0:24:26 to create a king. They did not want to have royal prerogatives. But I also think in addition
0:24:32 to being ideologically closely related to this methodological, the current court’s embracing
0:24:40 the view that the Constitution means what it did in 1787 or 1791, or 1868 when the 14
0:24:44 years adopted, is a terrible way to approach the Constitution.
0:24:50 So here’s a question. If the court isn’t doing what it’s supposed to do, which is
0:24:57 just call balls and strikes, as Chief Justice Roberts famously put it, why not get rid of
0:25:02 what’s called judicial review? Why not strip the court of its ability to overturn laws
0:25:07 that it decides aren’t constitutional? That’s something that we can, in theory, do, right?
0:25:08 Should we?
0:25:14 No, I don’t think we should do it. Let me say, I think that the idea that all the Supreme
0:25:21 Court is as an umpire calling balls and strikes is so wrong, because the Supreme Court is
0:25:26 making the rules. It’s not just calling balls and strikes. The Supreme Court has tremendous
0:25:33 discretion in how to interpret the Constitution. Umpires don’t have that kind of discretion
0:25:38 in calling balls and strikes. I think John Roberts did a tremendous disservice by using
0:25:42 that metaphor at his confirmation hearings, and he knew that wasn’t what the Supreme Court
0:25:46 does at all. But your question is, should we get rid of the Supreme Court’s ability
0:25:52 to strike down laws and enforce the Constitution? And my answer is an emphatic no, is critical
0:25:56 as I am of the Supreme Court. I think it’s essential. Some of it is what I mentioned
0:26:03 earlier. The Constitution is meant to create limits on what government can do. Those limits
0:26:09 are meaningless if they’re not enforced, and so we need the courts to do that. I’ve spent
0:26:15 my career as a lawyer, apart from what I do as a law professor, representing people who
0:26:20 have little chance to succeed in the political process. I filed the first lawsuit on behalf
0:26:25 of the Guantanamo detainees and represented Guantanamo detainees for many years. I represented
0:26:33 a homeless man in the United States Supreme Court. I’ve argued death penalty cases, and
0:26:39 I go on, these are people who aren’t going to succeed in the legislative process. When’s
0:26:45 the last time that a legislature ever adopted a law to expand the rights of criminal suspects
0:26:52 or increase the rights of prisoners? My clients may lose much more often than they win in
0:26:56 the United States Supreme Court, but their only hope is having an institution like the
0:26:59 court that’s there, and sometimes they do win.
0:27:07 You said that John Robert’s metaphor of an umpire calling balls and strikes is wrong.
0:27:13 What is the right metaphor for what Supreme Court justices do?
0:27:19 I can describe it. I’m not sure I have a metaphor, though. I think what the Supreme Court does
0:27:25 is take the very broad language of the Constitution and apply it to the current problems in modern
0:27:34 circumstances. They have tremendous discretion. After all, what’s cruel and unusual punishment?
0:27:40 What’s due process of law? What does freedom of speech mean? You’re not going to find
0:27:47 the answers to that from looking at 1791 or 1787. I mean, what did James Madison think
0:27:53 about how social media should be regulated? It’s an absurd question. The Supreme Court
0:27:58 had a case a couple of years ago, but a high school football coach who would go to the
0:28:03 50-yard line and pray after games. Justice Neil Gorsuch said, “We determined the meaning
0:28:08 of the Establishment Clause of the First Amendment by looking at what the founding fathers thought.”
0:28:12 What did the founding fathers think about a football coach at a public school going
0:28:16 down to the field and praying? It’s an absurd question.
0:28:23 We asked the Supreme Court to take the broad language of the Constitution and apply it
0:28:28 to our current circumstances. I struggled to come up with a metaphor, but it is not
0:28:36 about calling balls and strikes. What can we do about the Supreme Court? What
0:28:44 should we do? How do we tackle this particular problem, which, as you said, is a value problem?
0:28:51 It’s not something that can be solved through facts or empirical evidence. It’s just simply
0:28:56 a split in vision and values. I don’t know what you do about that.
0:29:00 Win presidential elections. There is that.
0:29:09 If Hillary Clinton had won in 2016, if Hillary Clinton had replaced three Supreme Court justices
0:29:15 rather than Donald Trump replacing those justices, we wouldn’t have had Roe v. Wade overruled.
0:29:19 We wouldn’t have had the affirmative action cases overruled. We wouldn’t have the court
0:29:26 saying corporations have the right to discriminate based on their speech activities when they’re
0:29:32 violating state law. We wouldn’t have a court creating broad absolute immunity and so on.
0:29:38 That election in 2016 mattered enormously for what the Supreme Court would be, but let
0:29:41 me relate it to the November 2024 presidential election.
0:29:48 I predict that if Donald Trump wins and there’s a Republican Senate, justices Thomas and
0:29:55 Alito who are now 76 and 74 will retire and let Trump pick conservatives who are in their
0:30:01 late 40s or early 50s. Individuals will be on the court for three or four decades, making
0:30:05 sure that those seats are in conservative hands long beyond my life.
0:30:10 I think also a Democrat wins and there’s a Democratic Senate, Sonia Sotomayor will step
0:30:17 down at some point, and there will be then a liberal in that seat for years to come.
0:30:22 Even though it may be less obvious than 2016, presidential elections really matter and they’re
0:30:27 the only way in which we can change the direction of the Supreme Court.
0:30:35 I’ve had a few conversations about this idea of abolishing the Supreme Court. That doesn’t
0:30:40 sound very realistic to me. If you have an opinion on that, feel free to share it. But
0:30:46 there are other ideas floating around. I think the Biden White House floated the idea that
0:30:54 they would reveal a plan to seek legislation, to establish term limits for justices and
0:31:02 an ethics code. Do you see any fruit there? Does any of that seem wise or doable in your
0:31:03 estimation?
0:31:10 I think an ethics code passed by Congress would be wise and doable. There was no ethics
0:31:17 code for the Supreme Court until adopted its own in November of 2023. Then it was a watered
0:31:23 down version compared to what applies to all other federal and all state judges. They took
0:31:30 the word “shall” which is mandatory and made it “should” which is advisory. They had
0:31:37 no enforcement mechanism. I think that the lack of an ethics code for the Supreme Court,
0:31:42 the ethical question of some of the justices, tarnishes not just that court, but all courts
0:31:50 in the country. In terms of term limits, I strongly favor 18-year non-renewable terms.
0:31:56 I favored it for a very long time. My own view, unfortunately, is I don’t think that
0:32:02 Congress can impose term limits, certainly not ones on current justices, by statute.
0:32:06 I think it takes a constitutional amendment. The understanding of Article III has always
0:32:12 been, when somebody is confirmed for the Supreme Court, it’s their position for life unless
0:32:17 they choose to resign. I don’t think Congress can change that by statute. I think it would
0:32:22 take a constitutional amendment. A constitutional amendment could make it retroactive and apply
0:32:27 it to current justices. I would favor such a constitutional amendment, but for the reasons
0:32:32 we talked about earlier, it seems so unlikely that there would be such a constitutional
0:32:37 amendment. I don’t know the constituency that would do the hard work to make such a constitutional
0:32:49 amendment happen.
0:32:53 Support for the show comes from Into the Mix, a Ben and Jerry’s podcast about joy and justice
0:32:59 produced with Vox Creative. In season three of this award-winning podcast, Into the Mix
0:33:04 is covering stories on the ordinary people fighting for justice in their local communities,
0:33:08 starting with the fight against the workhouse, a penitentiary in St. Louis known for its abject
0:33:14 conditions, mold, and pest infestations, and its embrace of the cash bail system.
0:33:18 Host Ashley C. Ford interviews Ainez Bordeaux, who spent a month in the workhouse when she
0:33:22 couldn’t afford her $25,000 bail.
0:33:27 Experiencing what I experienced in watching other women go through it and know that there
0:33:38 were thousands before us, and there were thousands after us, who had experienced those same things.
0:33:40 That’s where I was radicalized.
0:33:43 Eventually her charge was vacated, but the experience changed her.
0:33:47 They’re starting a campaign to close the workhouse, so are you interested? And I was
0:33:50 like, hell yeah. Hell yeah, I’m interested.
0:33:54 You can hear how she and other advocates fought to shut down the workhouse, and won on the
0:33:58 first episode of this special three-part series out now.
0:34:13 Subscribe to Into the Mix, a Ben and Jerry’s podcast.
0:34:18 Well, let’s talk about some of the reforms that are at least in theory possible, and
0:34:22 you’ve discussed a lot of them in the book, right?
0:34:27 I mean, there’s a national popular election of the president, allocation of Senate seats
0:34:34 based on population, the abolition or reform of the filibuster, gerrymandering, limits on
0:34:36 campaign spending, all of that.
0:34:42 Of all the proposed reforms, what would you say is most urgent of those, and feel free
0:34:45 to say anything you like about any of them?
0:34:53 Sure. I want to separate what’s easiest to do from what’s most urgent. I think what’s
0:35:00 easiest to do is we were talking about ethics code for the justices. Congress could do that.
0:35:06 The Senate could eliminate the filibuster by itself. That doesn’t take a statute, doesn’t
0:35:11 take a constitutional amendment, doesn’t take a new constitution. But if you ask me,
0:35:16 who I think are the most important reforms, get rid of the Electoral College, but that
0:35:22 would take a constitutional amendment, change two senators per state, I think that would
0:35:29 take a new constitution. So I think we have to focus both on what’s realistic in the short
0:35:36 term versus what’s essential in the longer term, the harder to get to.
0:35:39 What would you say is most essential, ultimately?
0:35:45 If I had a magic wand to change the constitution, most essential, eliminate the Electoral College
0:35:48 and eliminate two senators per state.
0:35:54 And the reforms, I mean, do you think any of them are going to happen? I mean, if you
0:36:01 had to bet your savings, which one do you think happens and how long does it take?
0:36:08 I don’t think that the path that this country is on is one that’s sustainable in the long
0:36:14 term. I hope I am wrong. I’ve never before written a book where I say at the end that
0:36:19 I hope everything that I’ve said in this book is incorrect. But I think there’s a widespread
0:36:25 sense on both the left and the right that there’s a crisis facing our democracy. And
0:36:32 the question is, where will it go? Will we go to a more authoritarian government? I was
0:36:38 chilled to see JD Vance, now the Republican candidate for vice president, saying that
0:36:46 what the country should emulate is Hungary and Viktor Orban and autocrat. And it is possible
0:36:50 that that is the direction that this country will go. As I say on the first page of the
0:36:56 book, no democracy lasts forever. Democracies are there until they’re not. But my hope is
0:37:02 that when the country sees that abyss, it will recoil and it will do the things to fix
0:37:08 it. And so I don’t think there’s going to be a new constitution next year or maybe in
0:37:14 my lifetime, but it’s time to begin thinking of one that corrects these problems. And in
0:37:21 the shorter term, there can be things like an ethics code passed by Congress. There can
0:37:27 be Congress eliminating partisan gerrymandering for congressional seats. That just takes a
0:37:31 statute. There can be the elimination of the filibuster. And we can go on with things that
0:37:36 could be done in the shorter term and done without a constitutional amendment or a new
0:37:37 constitution.
0:37:43 You don’t think this is sustainable in the long term. What do you mean by long term?
0:37:48 20 years, 50 years, 100 years?
0:37:56 I don’t know. I’m terribly afraid of what a Trump presidency will mean in terms of our
0:38:02 democracy. And I think there are significant number of people in this country, according
0:38:08 to opinion polls, who express doubts that where the democracy is the best form of government.
0:38:13 Well, look, there’s a stat in the book that it feels germane, given what you just said.
0:38:20 And I’m not sure if people are aware of this, but they should be. And the stat is, in 1964,
0:38:28 77% of Americans trusted government. Today, only 20% do. Now, if you’re looking for a
0:38:35 flashing, blinking red light that says danger, danger, danger, that’s it. That collapse
0:38:45 of trust, that crisis of legitimacy, really, is itself a existential crisis for our political
0:38:48 system. I don’t know how it could be seen otherwise.
0:38:56 I strongly agree. And we can talk about all of the things that gave rise to government
0:39:01 losing the face of the people. But then you get to the question, how long can that form
0:39:05 of government survive if no one has confidence in it?
0:39:13 And again, one of the basic problems for me is that because everything is political now,
0:39:20 there are no real guardrails or mutually respected norms of fairness. That’s the game of liberal
0:39:23 democracy. And we’re not really playing that game anymore. The Republicans aren’t playing
0:39:27 that game anymore, to be sure. And that means Democrats can’t either or they can try, but
0:39:31 it won’t work for the same reason that no game works unless all the players respect the
0:39:35 rules. You can’t have half the people on the pitch playing soccer and the other half playing
0:39:41 rugby. It just doesn’t work. All of which is to say, I don’t know how these things,
0:39:47 any of them really, get done. Because as you admit, doing so will have explicit advantages
0:39:54 and disadvantages for each side. And so you can’t get enough consensus to do anything.
0:39:57 It just seems to be the doom loop we’re stuck in.
0:40:05 I fear so that I also believe that there are solutions. And again, my hope is, is the country
0:40:11 faces could be an abyss of democracy. They’ll then recoil and come up with solutions. But
0:40:18 I want to strongly agree with what you say, that the Constitution assumes that those who
0:40:25 occupy office will act in good faith and follow certain norms. Let me give you a couple of
0:40:30 examples. Throughout American history, when there’s been a vacancy on the Supreme Court,
0:40:36 even late in a president’s term, presidents have pointed and senators have confirmed there
0:40:42 is a vacancy. In 1956, just a month before the presidential election, President Eisenhower
0:40:49 named a Democrat, William Brennan, the Senate confirmed. What we saw instead was when Antonin
0:40:55 Scalia died in February 2016, Mitch McConnell, the Senate Majority Leader said, we’re not
0:40:59 going to hold hearings or we’re not going to consider whoever President Obama nominates.
0:41:04 We shouldn’t let a lame duck president pick Supreme Court nominee. Nonetheless, when Ruth
0:41:09 Bader Ginsburg died in September of 2020, the Republicans rushed through and confirmed
0:41:16 Amy Coney Barrett just days before the presidential election. Throughout American history, until
0:41:24 January of 2021, those who were incumbent presidents who lost left the White House. It
0:41:32 started with John Adams in 1800. It continued through George H. W. Bush in 1992. But Donald
0:41:39 Trump did everything he could to subvert the election. These are examples of norms that
0:41:44 have to be followed just being transgressed and ignored.
0:41:50 You actually posed an interesting question pretty early in the book. You say, was it
0:41:55 better to have one nation with a constitution that institutionalized slavery or would it
0:42:01 have been better for the country in 1787 to just split into two smaller countries? You
0:42:06 do sidestep this a little bit in the book, but I’ll push you here because I really want
0:42:11 to know the answer. Would it have been better? And what about now? Would we be better off
0:42:15 now if that had happened, if we had split?
0:42:22 I ask my students that every time I teach constitutional law, whether to law students
0:42:28 or undergraduates, from the perspective of hindsight, I would say it would have been
0:42:36 better to have two countries, a country that repudiated slavery and a country that accepted
0:42:42 slavery. I think the reason that those who strongly favored abolition thought one country
0:42:49 was better is they thought that slavery would, of its own course, go out of existence. That
0:42:56 didn’t happen. Slavery dominated every political issue up until the Civil War. In terms of
0:43:04 now, I think it is much better that the country stay together and it be one United States.
0:43:11 On the other hand, I worry that if we don’t fix the flaws that there will be great pressure
0:43:16 towards the session, not next year, but in the longer term, because I think the hard
0:43:22 question is, is what unites us as a country greater than what divides us as a country?
0:43:28 I’ll make to me what I think is a re-frightening prediction. I think if Donald Trump wins in
0:43:34 November of 2024 and the Republicans take both houses of Congress, we will hear the
0:43:40 first serious discussion of the session since the Civil War. I think there will be discussion
0:43:46 of Cal accent. I don’t think much will come of it now, but from that discussion, the longer
0:43:54 term could be quite cataclysmic changes. I am not advocating it. I am not predicting
0:44:00 that it’s imminent. But I do think the divide between the red states and the blue states,
0:44:06 for example, between, say, Alabama and California, are so great that there will be consideration
0:44:10 doesn’t make sense. And I think it’s crucial if we talk about session, I mean, it doesn’t
0:44:15 have to be like the Civil War of the country splitting in two. It could be much more like
0:44:20 a European Union, which much more devolution of power to the states and a much weaker national
0:44:25 government is a way of trying to accomplish something like the session.
0:44:31 And again, speaking of data points, people should know, and I got this from your book,
0:44:42 in a 2021 poll, 41% of Biden voters and 52% of Trump voters, quote, somewhat agreed that
0:44:48 it would be best to split the country by red and blue states. I don’t know what those
0:44:54 numbers are today. They’re probably comparable to that. And assuming that they are, those
0:44:59 are pretty big numbers. That’s a lot of people. That’s a lot of people. And again, it’s just
0:45:05 an indicator of I think how close to the precipice we actually are, even though it’s hard to
0:45:10 really feel that because you just wake up every day and think, you know, that the game
0:45:15 will go on, but it doesn’t, not forever.
0:45:21 And that’s the point of the book. And it’s why I titled it, No Democracy Lasts Forever.
0:45:26 I think that we as a country need to think about how we got to this point and how do
0:45:33 we get out of it and preserve a democracy, advance freedom and equality?
0:45:41 Let’s just say a Democrat wins in November. However unlikely that does seem at the moment.
0:45:45 Apart from something obvious that you’ve already mentioned, like, you know, Supreme Court,
0:45:51 right? I mean, it does matter, certainly. But in the slightly longer term, where does
0:45:55 that really get us? Do we just keep limping along for another four years and then hold
0:46:01 on tight for the next one and hope we don’t tumble into the abyss? Does that really solve
0:46:06 anything? Is it just another band-aid, another bridge to the next election, but still all
0:46:12 the fundamental problems are still there and probably go unaddressed for the most part?
0:46:19 I don’t know is the answer. You know, in my optimistic self, I would say maybe we could
0:46:28 find a president who could unify the country. I think that there was an opportunity to do
0:46:36 that at the time of COVID. One of the things that unifies countries are crises. The last
0:46:43 time our country seemed really together was after 9/11 when the president had over 90%
0:46:49 approval ratings. And I think if George W. Bush hadn’t squandered it with the terrible
0:46:55 war in Iraq and Afghanistan, we might have remained united. I was hopeful that Barack
0:47:02 Obama would unify the country. Unfortunately, for many reasons, including racism, that Republicans
0:47:07 were determined to undermine his presidency from the beginning. But maybe we can’t have
0:47:11 a president or a crisis that unifies us. I think if Donald Trump had at the beginning
0:47:18 of COVID said, “We really need to come together as a country and we need to trust science
0:47:23 and medicine and do what’s necessary to minimize death,” our country might have come together.
0:47:26 Donald Trump would have won the presidency in 2020, but that’s not who Donald Trump
0:47:31 is or was at that moment. But I think there could still be somebody who unifies us. One
0:47:38 of the things to keep in mind is how strong the American economy is. Usually what undermines
0:47:46 democracy is economic crisis. And then there’s the tendency to want a different form of government
0:47:52 and authoritarianism. We have incredibly low unemployment. Yes, there are incredible wealth
0:47:59 disparities that need to be solved. Yes, inflation’s been a problem. But so long as
0:48:05 the economy remains strong, I think there’s the possibility of having a president who
0:48:09 can unify us. But that may be naive and unrealistic.
0:48:15 I’m sure you’ve read Plato’s Republic. Maybe Plato was right about democracy, that they
0:48:20 follow this familiar pattern of decline. And in the end, they’re just swallowed up by the
0:48:27 chaos they unleash. And look, I think America is the greatest political experiment in human
0:48:34 history. But as the title of your book suggests, nothing lasts forever. No civilization, no
0:48:41 empire, no democracy. And ours will end too. And it’s probably true that every system has
0:48:48 contradictions and trade-offs and vulnerabilities. And our system may in the end be the most
0:48:55 desirable, given all of that. I don’t know. But it does seem to be buckling a little bit
0:48:58 under the weight of its own contradictions.
0:49:05 And that’s why conversations like this are so important. As I said, it’s why I chose
0:49:11 to write the book. Anything that’s flawed can be repaired if there’s the will to do
0:49:12 it.
0:49:20 We still have agency, no matter how hard that is to appreciate sometimes. And I guess it’s
0:49:28 not over until it’s over. Erwin Chemerinsky, this was a pleasure. Thanks for being here.
0:49:30 Truly my pleasure. Thank you.
0:49:36 The book is called No Democracy Last Forever, How the Constitution Threatens the United
0:50:02 States.
0:50:30 Thank you.
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0:51:54 (upbeat music)
The US Constitution is a brilliant political document, but it’s far from perfect. This week’s guest, Erwin Chemerinsky, argues that many of today’s threats to democracy are a direct result of compromises made by the Founding Fathers centuries ago. Those mistakes have come back to haunt us, and they might destroy our democracy.
Erwin Chemerinsky’s latest book is No Democracy Lasts Forever.
Host: Sean Illing (@seanilling), host, The Gray Area
Guest: Erwin Chemerinsky
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