The Constitution is Sacred. Is It Also Dangerous?

The United States Constitution is in trouble. After Donald Trump lost the 2020 election, he called for the “termination of all rules, regulations and articles, even those found in the Constitution.” Outraged critics denounced him for threatening a document that is supposed to be “sacrosanct.” By announcing his desire to throw off constitutional constraints in order to satisfy his personal ambitions, Trump was making his authoritarian inclinations abundantly clear.

It’s no surprise, then, that liberals charge Trump with being a menace to the Constitution. But his presidency and the prospect of his re-election have also generated another, very different, argument: that Trump owes his political ascent to the Constitution, making him a beneficiary of a document that is essentially antidemocratic and, in this day and age, increasingly dysfunctional.

After all, Trump became president in 2016 after losing the popular vote but winning the Electoral College (Article II). He appointed three justices to the Supreme Court (Article III), two of whom were confirmed by senators representing just 44 percent of the population (Article I). Those three justices helped overturn Roe v. Wade, a reversal with which most Americans disagreed. The eminent legal scholar Erwin Chemerinsky, worried about opinion polls showing “a dramatic loss of faith in democracy,” writes in his new book, “No Democracy Lasts Forever”: “It is important for Americans to see that these failures stem from the Constitution itself.”

Back in 2018, Chemerinsky, the dean of Berkeley’s law school, still seemed to place considerable faith in the Constitution, pleading with fellow progressives in his book “We the People” “not to turn their back on the Constitution and the courts.” By contrast, “No Democracy Lasts Forever” is markedly pessimistic. Asserting that the Constitution, which is famously difficult to amend, has put the country “in grave danger,” Chemerinsky lays out what would need to happen for a new constitutional convention — and, in the book’s more somber moments, he entertains the possibility of secession. West Coast states might form a nation called “Pacifica.” Red states might form their own country. He hopes that any divorce, if it comes, will be peaceful.

The prospect of secession sounds extreme, but in suggesting that the Constitution could hasten the end of American democracy, Chemerinsky is far from alone. The argument that what ails the country’s politics isn’t simply the president, or Congress, or the Supreme Court, but the founding document that presides over all three, has been gaining traction, especially among liberals. Books and op-eds critiquing the Constitution have proliferated. Scholars are arguing that the Constitution has incentivized what Steven Levitsky and Daniel Ziblatt call a “Tyranny of the Minority.”

The anguish is, in some sense, a flip side of veneration. Americans have long assumed that the Constitution could save us; a growing chorus now wonders whether we need to be saved from it.