Small problems pockmark Erwin Chemerinsky’s manifesto calling for constitutional revolution in America. The Berkeley Law School Dean’s No Democracy Lasts Forever contains puzzling errors, like the assertion that “to save American democracy…the Supreme Court could declare the Electoral College unconstitutional as violating the Fifth Amendment’s assurance of equal protection.” (It can’t, not least because the Fifth Amendment assures no such thing.) It features several omissions, including any discussion of state government’s role in our constitutional order and the Constitution’s guarantee of a republican form of government in the states. At times, it accidentally self-condemns: while calling for replacing our national charter, Chemerinsky writes that “the arrogance” of the Framers’ decision to replace the previous national charter, the Articles of Confederation, “is obvious.”
It even fudges some of its most important arguments, including one about the Constitution’s enduring responsibility for racial inequality. Though the parts of the Constitution that allowed slavery to persist have been amended out of existence, Chemerinsky nevertheless concludes that the Constitution’s current structure widens race-based disparities. But he does not connect the dots. What extant Constitutional defect makes it responsible for today’s social ills such that we need a replacement? Chemerinsky neither shows nor tells; he counts on the reader’s vague sense that a Constitution slaveholders in part wrote must still have some baked-in, race-related injustices.
Continue reading the entire piece here at The University of Texas at Austin Civitas University
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Tal Fortgang is an adjunct fellow at the Manhattan Institute. He was a 2023 Sapir Fellow.
Photo by Christopher Polk/Getty Images for Hugh M. Hefner Foundation