Closing Time?

Aziz Z. Huq* June, 2026

No Democracy Lasts Forever: How the Constitution Threatens the United States. By Erwin Chemerinsky. New York: W.W. Norton. 2024. Pp. xiv, 240. Hardcover, $29.99; paper, $19.99.

Introduction

On January 24, 2025, the California Secretary of State authorized signature gathering for a potential referendum on secession.¹ A YouGov poll that same month found a majority (61 percent) of Californians believed that their state would be better off if it peacefully divorced from the nation.² About a year earlier, in an altogether different political climate, former Georgia Congresswoman Marjorie Taylor Greene called for red states to secede.³ The Gallup Organization conducts periodic national surveys mapping country-satisfaction rates among Americans.⁴ Yet the last time Gallup found that a majority of Americans were content with their country was January 2004.⁵ For years now, satisfaction rates have hovered around 20 percent.⁶ Notwithstanding various promises of a Green New Deal,⁷ or just Greenland,⁸ our national democratic mechanisms do not seem to be translating into policy outcomes, or even a polity, to our liking.⁹

In No Democracy Lasts Forever: How the Constitution Threatens the United States, esteemed¹⁰ constitutional law scholar and Berkeley Law Dean Erwin Chemerinsky¹¹ diagnoses our national malaise as derivative of the flawed mechanisms for political representation in the U.S. Constitution. Based on that analysis, he delivers an “apocalyptic” warning about the dire consequences of failing to fix these democratic mechanisms (pp. 20–21). The result is a startling about-face for Chemerinsky. A scholar responsible for one of the most influential treatises on constitutional law,¹² one who has written trenchant critiques of the conservative Supreme Court’s distorted view of the Constitution,¹³ has now turned against the document itself. The moral and rhetorical force of his new argument is concentrated in his eponymous warning—a cautionary prophecy that, very soon, “Americans will realize that the Constitution itself is endangering democracy and they will start thinking of replacing it” (p. 165). Chemerinsky ultimately disavows any affirmative advocacy for either dissolution or secession (p. 21). Yet an air of despairing cynicism lingers at the book’s close. It is no exaggeration to call No Democracy Lasts Forever Chemerinsky’s “Flight 93” moment as a constitutional scholar.¹⁴ But who would have thought that such a liberal lion of American constitutional law would align himself with Marjorie Taylor Greene’s suggestion of (potentially wholesale) national dissolution?

Taken in the round, Chemerinsky’s argument rests on three claims. First, he offers a benchmark for evaluating the Constitution (pp. 4, 16–17, 22). This is (to use the sort of technical vocabulary Chemerinsky wisely eschews) a superordinate ethical commitment to an understanding of democracy defined as the reliable translation of majoritarian sentiments into electoral office holding and policy. Second, he asserts that the political institutions created by the 1787 Constitution, unremedied by subsequent amendatory efforts, reflect an imperfect commitment to democracy so defined and have drifted further and further away from that ethical ideal in recent decades.¹⁵ Less a “fall from grace” story, the book is a tale of original sins latent in the mechanisms of political representation and racial inclusion. It is also a story of how these sins have festered over time and, ultimately, exploded. Third, Chemerinsky argues that this failure of democratic structures generates powerful pressure on the Union, which can only be released by wholesale reform—at minimum, a constitutional convention that is primed to craft a new organic document—or secession.¹⁶

To say the least, this is a stark departure from conventional wisdom among constitutional law scholars. Chemerinsky’s pessimism is all the more striking since No Democracy Lasts Forever was published before the second Trump inauguration, which catalyzed a fresh suite of constitutional legal norm-breaking.¹⁷ But it would be misleading to evaluate the book’s argument in light of what has unfolded since January 2025, and I (mostly) resist that temptation in what follows. Rather, it is more useful to isolate the analytic and empirical claims upon which Chemerinsky’s argument rests and subject them to close scrutiny. This means asking a series of questions. First, is democracy usefully reduced to majority rule? Second, are the democratic dysfunctionalities evident in the American context (however those flaws are defined) a result of its political institutions, or do they arise by other pathways? And, if the diagnosis of dysfunction holds, what is to be done? The bulk of this Review tackles the first two steps of Chemerinsky’s analysis. Readers should be forewarned, however, that I largely bracket the third question here. The desirability of radical constitutional reform, via a convention under Article V or secession, raises profound questions of moral and political judgment. These cannot be well canvassed in a short Review of this kind. Moreover, the advent of the second Trump Administration changes dramatically the nature of those questions.¹⁸ Since Chemerinsky’s test does not account for those changes, it does not offer the best platform for reflection on those questions in this historical moment. I hence confine myself to a short conclusion with some general thoughts about the problem rather than offering a definitive answer that is hostage to fortune and changing circumstances.

Before turning to these lines of inquiry, which are taken up in Parts II and III, I think it is useful to spell out the basic argument of No Democracy Lasts Forever. That is, what does the present crisis of constitutional democracy involve, and what are its causes, in Chemerinsky’s view?

I. A Crisis of Constitutional Democracy?

An analysis that begins with the bold declaration that our “democracy is in grave danger” (p. 4) requires some definitional scaffolding. What counts as a democracy? And under what conditions is it endangered? Puzzlingly, Chemerinsky offers no direct answers to either question.¹⁹ Nevertheless, I think that his position can be fairly inferred from the nature of his criticisms and the vector of his proposed reforms. Let me start by trying to offer a sympathetic reconstruction of that position, which provides a starting point for the balance of my reflections on the book.

Democracy, for Chemerinsky’s purposes, is an ethical norm of durable majoritarian rule executed through representational electoral mechanisms. Take the two main elements of this definition—its ethical and its majoritarian character—in turn. Democracy, as an ethical norm, offers a benchmark against which people evaluate laws and the Constitution. Where legal norms are “endangering” democracy, people will (rightly) start thinking of “replacing” them because laws exist to serve ethical ends (p. 165). On this point, Chemerinsky oscillates between a descriptive, predictive claim (“people will realize that”) (p. 170) and a normative one (“[w]e must begin to think about”) (p. xiii) without quite recognizing that these are two different kinds of assertions. On my reading, however, his appeals to empirical evidence about dispositional changes in the population at large are epiphenomenal.²⁰ Imagine that instead, the empirical trends indicate that people do not consider replacing those norms: Would Chemerinsky change his mind? I am doubtful. Democracy is posited as a superordinate ethical good, such that its unraveling not only motivates but also justifies the contemplation of extreme measures—including a constitutional convention or secession.²¹ For Chemerinsky, however, the exact nature of this ethical element remains opaque. It may be enough here to point to Philip Bobbitt’s explanation that the ethical entails a demand for government “that . . . comports with the sort of people we are and the means we have chosen to solve political and customary constitutional problems.”²² My use of the word “ethical” here is thus meant to pick out and emphasize the way in which Chemerinsky’s argument involves a comparison between legal norms and some supervening (i.e., ethical) demand.²³

What, then, does this ethical norm entail? Chemerinsky offers a number of possible measures of democratic quality: public confidence (p. 4), the capacity to solve wicked public policy problems (pp. 22, 183), and a measure of economic and racial equality (pp. 16–17). It is hard to see how his somewhat casually proffered litany of outcomes coheres into a single concept, as opposed to some hazy gestalt of what a well-ordered society might look like. It is also striking that these measures all concern the outputs of a political process rather than how that process is organized. It seems implausible to say that a polity without any role for the public in state power that nonetheless secures these results is a “democracy.” Hence, it is necessary to hazard a guess at what exactly Chemerinsky means when he invokes this ethical ideal by drawing inferences from the lines of criticism he develops and attending to the improved form of government toward which he gestures.

Let me, therefore, attempt a reconstruction of the implicit working conception of democracy in No Democracy Lasts Forever. As I understand him, Chemerinsky imagines democracy as an ongoing system of national elections in which a demographic majority is persistently able to select representatives through such elections and hence shape public policy as it is embodied in durable laws and federal regulations. It is, on this view of democracy, a problem if major national institutions, including notionally countermajoritarian ones like our courts, are “out of step with the country” (p. 83). Therefore, democracy here works not just as a claim about the presence of certain majoritarian, representative bodies, but also the absence of countervailing veto gates.

I think this definition fits Chemerinsky’s view for two reasons. First, it follows from the fact that many of the criticisms he makes of the extant constitutional order identify barriers to the expression of majority views in positive law. Second, the crux of his reform agenda is popular election of the president, reform of the Senate to mitigate deviations from equipopulational representation, and constraints on House gerrymanders that lock out majorities (p. 17). These reforms are concerned centrally with enabling a numerical majority of the population to select public office holders and so influence policy. A similar understanding of democracy has been advanced in more formal terms by Professor Nicholas Stephanopoulos under the rubric of “alignment”; he asks whether “the preferences of voters are congruent with the preferences of their elected representatives.”²⁴ Like Chemerinsky, Stephanopoulos assumes that elections are the necessary institutional channel through which majoritarian democracy must unfold.²⁵ The abiding assumption of both normative accounts is the role that elections play in reflecting some measure of majority preference.

Perhaps the most discrepant element of Chemerinsky’s implicit account of democracy as majoritarian in this sense is his solicitude for the interests of racial minorities.²⁶ It is true that legal constraints on democratic institutions can be motivated by animus toward a racial minority. They can thus have the predictable effect of ensconcing a political minority in power. The Three-Fifths Clause is a highly salient example of an election design measure motivated by animus that in the longer term thwarted the goal of majority rule.²⁷ But there are also instances in which fencing out a racial minority from political power will advance majority interests. For example, imagine a polity in which a racial group is a minority, and a majority has powerful negative sentiments toward that group. In a purely formalistic sense, it is plausible to say that majoritarian democracy (as opposed to some conception of political justice) is not offended by the use of political power to burden, even politically, the members of the racial minority if certain conditions are met.²⁸ That is, if the restrictions on the minority do not result in any change in policy outcomes, then it is unclear whether the majoritarian character of the system has been compromised. A polity that systematically excludes a despised minority might not be just—and might even be despicable—but it might still be a democracy on the main criterion that Chemerinsky seems to deploy. This tension, however, is never confronted or even properly recognized in No Democracy Lasts Forever.

With the ethical compass of majoritarian democracy stipulated in this narrow way, Chemerinsky offers a critique of the political institutions of national representation that arise from the 1787 Constitution. What are these institutions? Strictly speaking, the critique does not focus on the Constitution as such. True, Chemerinsky addresses bodies such as the Electoral College and the Senate, which are set forth in the Constitution’s text (pp. 38–50). But he also includes institutions, such as the filibuster, that are amenable to partisan gerrymanders.²⁹ At the same time, other elements of the 1787 institutional dispensation, such as the emergence of a de facto expectation of enfranchisement notwithstanding the absence of a textually committed right to vote,³⁰ receive no attention.

A reasonable critique of this scoping decision is that Chemerinsky is cherry-picking his targets. That is, one might start from the 1787 Constitution and trace out all the representational institutions and habits it engendered. One might then consider the whole set of ensuing traditions, bodies, and norms as a single package to evaluate the Constitution’s democratic legacy. This more holistic approach might be justified by observing that our system of national political representation does not operate as a series of isolated choices. It is a complex, path-dependent whole. Our present national representative systems emerged through a complex process of contingent interpretive and political decisions. There are democratic elements that no doubt appeal to Chemerinsky, such as the extension of the franchise despite the absence of an express right to vote in the Constitution. And there are less desirable elements, such as the emergence of single-member districting that is vulnerable to gerrymandering.³¹ But the historical forces that engendered the good also created the bad. To account only for undesirable elements without thinking about how they are embedded in a larger, historically path-dependent institutional network is to err by assuming that the positive parts of the U.S. system could have been achieved without also including what Chemerinsky takes as its flaws.

Setting aside that specific analytic concern, Chemerinsky’s argument that the principle of majoritarian democracy clashes with the Constitution³² has two components. First, the 1787 document reflects “the views of those who lived in an agrarian slave society in the late eighteenth century, almost half of whom owned slaves” and who were motivated by a “strong distrust of democracy” (p. 31). This original democratic shortfall is evidenced in the Constitution’s positive orientation toward slavery and states’ rights, as well as its negative orientation toward “the rights of Native Americans” (pp. 7–9). Second, the initial antidemocratic matrix has been damaged by further deficiencies and dead ends in institutional development: the increasingly malapportioned Electoral College (pp. 32–50); a Senate whose dysfunction has been exacerbated by its filibuster rules (p. 52); the invitations to gerrymandering (pp. 66–77); the entrenched majority of the Supreme Court who, shielded by an increasing valuable life tenure (thanks to the simple fact that justices now generally live longer than justices a century ago), have dismantled voting rights protections and campaign finance limitations (pp. 84–101); the enduring and compounding effects of the Constitution’s initial solicitude for slavery on wage and income levels;³³ and the First Amendment’s shield for false speech and endemic online misinformation (pp. 124–131). None of these dynamics was obvious from the text of the Constitution in 1787. Each of them, however, emerged relatively quickly and perhaps inevitably because of the manner in which the Constitution’s design interacted with background socioeconomic conditions. Nested in historical context, they can all be thought of as proximate effects of constitutional design.

Having launched a rhetorical arsenal against these diverse targets, Chemerinsky turns to solutions that can be advanced through the Constitution (chs. 8–9). But his heart is plainly not in the task. The perfunctory nature of his treatment of reform pathways that are close at hand suggests that he thinks the enterprise to be fruitless. Instead, Chemerinsky places more weight upon two more radical pathways. The first involves formal constitutional change via a national constitutional convention pursuant to Article V of the Constitution.³⁴ Because no constitutional convention has been called since the 1780s, uncertainty abounds as to its composition, mandate, and duration. Chemerinsky warns that it must be constituted in a specific way—with equal numbers of Democrats and Republicans—if it is to have a chance of successfully generating breakthrough proposals (p. 167). He also proposes that it be permitted to operate for two years, presumably with “normal” politics in the background (p. 168).

Again, this proposal is not tendered at length, and there is some reason to think that Chemerinsky is not thoroughly committed to the idea. I intend to discuss this proposal in later parts of this Review and so offer here just two brief reasons that Chemerinsky’s skepticism may be warranted. To begin with, Chemerinsky’s proposed convention structure embodies a principle of partisan balance to secure ideological symmetry within a convention (p. 167). But this is likely to fail to achieve its desired end. As one powerful description of the American two-party system discusses, the Democratic Party is “fundamentally a group coalition,” while the Republican Party is “most accurately characterized as the vehicle of an ideological movement.”³⁵ Given this structural disparity, a partisan balance requirement will not achieve Chemerinsky’s aims of ideological balance. There is every reason to expect instead that an ideologically coherent right flank would be able to divide and conquer a more fissiparous left wing.³⁶

Worse, although Chemerinsky recognizes the difficulty posed by high levels of ambient voter polarization, he offers no reason why that structure of feeling will not be disabling in a constitutional design context (p. 169). Perhaps the best evidence for the difficulty of constitutional change under present-day conditions of extreme polarization is the recent failure of two different constitutional proposals—one from the left, and the next one from the right—in quick succession in Chile.³⁷ To be sure, the poor design of Chile’s constitutional drafting and ratification process may have been the most important cause of these failures.³⁸ Nevertheless, it is hard to imagine that the country’s polarized political environment did not also play a disabling role.³⁹ If so, there is every reason to anticipate that the Chilean scenario could also play out in the United States.

In all events, as his book’s title signals, the weight of Chemerinsky’s attention falls upon the most radical of possibilities: secession from the United States (pp. xiv, 172–82). There is a touch of ambivalence in his presentation here. On the one hand, Chemerinsky avers that secession would be “painful” and would “make us worse off” (p. 172). On the other hand, he presents an extensive legal and practical case in favor of secession that is strikingly free of caveats or hesitations. For example, having eschewed the obvious comparative constitutional analysis when discussing constitutional conventions, he offers an extended discussion of the 1992 breakup of Czechoslovakia into the Czech Republic and Slovakia and the 1905 breakup of Norway and Sweden. Both were peaceful (pp. 176–78). By selecting examples in which the dissolution of a nation-state was successful and nonviolent, Chemerinsky primes the reader to discount their own skepticism about the political plausibility of secession.

Moreover, the book offers a capacious view of the constitutionality of secession (pp. 174–75). Chemerinsky resists the conventional wisdom that secession is categorically foreclosed by the Constitution (pp. 174–75). As he correctly explains, the conventional wisdom that secession is precluded rests upon the Supreme Court’s brief statement in Texas v. White that “[t]he Constitution, in all its provisions, looks to an indestructible Union, composed of indestructible States.”⁴⁰ The opinion, though, also states that there is no possibility of state “revocation, except through revolution, or through consent of the States.”⁴¹ That is, White suggests that secession is permitted if it is consensual, or if it is nonconsensual but violent. By necessary implication, White holds solely that an unsuccessful, violent effort at secession is an invalid dissolution of the union.⁴² The inevitable impression is that Chemerinsky, while instinctually averse to a convulsive constitutional change, perceives both a political and a legal pathway to some sort of secession, whether weak-form or strong-form.⁴³

In sum, a major contribution of No Democracy Left Behind is its willingness to broach questions that other scholars have failed to perceive about the durability of the American national project and the fraught question of what its successor might look like. At a moment in history when there are federal troops on the streets of many previously calm and prosperous cities,⁴⁴ this courage looks prescient and wise. It demonstrates that Chemerinsky is intellectually supple enough to escape the prior certainties of his discipline. Many scholars, I think, would lack the courage or self-knowledge to venture down this path. In Parts II and III of this Review, I will (inevitably) refine a series of concerns about the first two joints of the argument—the majoritarian definition of democracy and the narrow focus on political institutions as causes of democratic dysfunction. The fact of attending so closely to the argument, however, is a way of evincing approbation and appreciation of a scholar who declines to rest on his laurels, who resists the natural human tendency to circle the wagons around his earlier scholarship, and who instead carves new paths of inquiry with intellectual agility and passion.

II. The Ethical Benchmark of Democracy

I turn first to the normative benchmark of electoral democracy that drives No Democracy Lasts Forever. While Chemerinsky offers no formal definition of democracy against which to judge the U.S. Constitution, his conception is plainly electoral and majoritarian. That is, his unstated principle is that a polity is a democracy if and only if it allows a numerical majority of the voting public to select and replace those who hold the national political apex. That ethical benchmark for government, as I argue in this Part, does not provide a sufficient or perspicacious measure for the task Chemerinsky undertakes.

A. Democracy as a Feature of Complex Systems

The label of “democracy” is one scholars tend to affix to (or withhold from) the complex systems of state institutions operating at the level of the nation-state, rather than subnational structures. These systems inevitably comprise both formal state institutions (e.g., election administrators, the Electoral College, the joint session of Congress) and parastatal entities (e.g., political parties, the news media, civil society bodies). To evaluate the health of a democracy, it is necessary to isolate some trait of this complex system as an index of democratic health. It is tempting to think that this is a simple matter of asking whether elections occur, such that all other institutional details are unnecessary. But that would be a mistake. Elections can occur without being free and fair, so they alone do not index the existence of democracy.⁴⁵ Classical forms of democracy relied on sortition devices—and so demonstrated the possibility of democracy without elections.⁴⁶ Indeed, some political scientists argue that “contemporary democrats are wrong to simply assume that democracy requires elections and only elections.”⁴⁷

Yet while political theorists’ arguments against elections as a central feature of democracy have some moral force, they also have an air of unreality. In most people’s minds, the idea of democracy has become closely associated with the practice of elections. Persuading them otherwise would entail enormous intellectual labor. It seems reasonable for Chemerinsky to take for granted this fact about the pervasive popular understanding of democracy rather than proposing to evaluate polities by an ethical account of democracy that would be unrecognizable to most people living in those polities.⁴⁸

But even if we accept the definitional centrality of elections to democracy as a historically contingent matter, it remains an open question how to identify in some parsimonious form the essential features of an electoral system without which a given polity cannot be called a democracy. Such an enumeration might be limited to the observable components of a system (including, but not limited to, the practice of casting and counting individual votes),⁴⁹ or it might pick out instead the emergent qualities of that complex—that is, qualities that cannot be reduced to a single set of institutional elements but that reflect the ways in which many component parts interact. For example, one might evaluate the democratic quality of a polity by asking whether there tends to be alternation in high political office. There is hence a burden of justification that comes with the task of defining an index of democratic quality: Why is it the right way to judge a complex system?

B. Majority Rule as an Index of Democracy

Does the possibility of majority victory in elections, and then policymaking by that demographic majority, meet that burden of justification? I am skeptical. There is, no doubt, an argument of sorts for a strictly majoritarian definition of democracy, but it works at a very high level of abstraction.⁵⁰ It also requires a careful distinction between an absolute majority rule (which counts all eligible voters) and a “present and voting” rule (which counts only those who vote).⁵¹ It would also have to explain why the boundaries of the voting population had been drawn in a defensible, as opposed to an unjust or merely irrational, manner—the so-called “boundary problem” that has bedeviled democratic theorists.⁵² And it would have to explain why the ethical force of the majority rule command applies not just to the electoral system but also to the internal operation of the legislature.⁵³ No Democracy Lasts Forever takes up and evaluates none of these questions. The use of majority rule as an ethical benchmark, in my view, requires greater theoretical support than the book supplies. I see three different problems here that merit closer attention.

First, a simple focus on whether majorities win elections assumes that office holding entails meaningful public power such that there is “something . . . at stake” in elections.⁵⁴ A political system in which office holders can be removed, and yet public policy predictably remains entirely unchanged, is not, in substance, a democratic one. To be sure, Chemerinsky gestures at this concern when he polemicizes against the influence of wealth upon politics.⁵⁵ But he does not mention or discuss the many well-known empirical studies showing that both state and national institutions evinced limited responsiveness to middle- and working-class preferences well before the current era of Roberts Court campaign finance deregulation.⁵⁶ The risk that a small economic elite could exercise de facto monopoly control over policy choices, therefore, is not simply a matter of more fiscally evenhanded electoral campaigns. More generally, it may be that a persuasive answer to the “something at stake” question compels a more fulsome account of the socioeconomic conditions under which popular majorities exercise power through elections and legislatures. This is a line of inquiry that Chemerinsky’s focus on formal institutions does not seem to allow.

A second unsupported and problematic assumption is baked into Chemerinsky’s approach. Notice that it is tolerably clear, as an a priori matter, that an electoral system organized solely around the principle of “one person, one vote, just one time” does not merit the democratic label. The practice of democracy hence demands a sense of futurity in order to have any meaningful ethical heft. It demands a sense that democratic choice is not merely for the moment and will not come to a “sudden end.”⁵⁷ But this is not always so, even where there are elections. In a number of other countries, an electoral victory of a leader or movement that styles itself as the sole authentic voice of the people, and that anathemizes its political opponents in corresponding terms, has led to the effective termination of democratic choice through elections.⁵⁸ Unless the voting public is, in effect, able to change its mind about who should wield effectual political power, the label of democracy does not properly attach. A purely majoritarian account of democracy, therefore, needs some explanation of how the institutions through which that choice is exercised remain open over time. That explanation might focus on institutional checks upon incumbent entrenchment, or, alternatively, it might emphasize social and cultural factors that condition both politicians and voters against an antidemocratic style of democratic politics. But to remain silent on this score invites confusion.

Finally, the centrality of majority-voting rule in democratic practice is less clear to me than it is to Chemerinsky. For one thing, the use of a majority-vote rule can have different effects depending on its orientation in the democratic system: Is it used as a decision rule within one of the several states? For the Electoral College? Or just in Congress? There is a powerful argument that the ambition of pluralistic, multiracial democracy that No Democracy Lasts Forever celebrates is ultimately ill served by an electoral system that simply looks for a national majority. Rather, that sort of democratic project requires more selective institutional design at the electoral stage to avoid “binary high stakes all-or-nothing fight[s]” and instead to cultivate “more complicated cross-racial, cross-ethnic, and cross-partisan coalitions.”⁵⁹ On this view, majority-voting rules—such as the one used for the Electoral College—should be avoided in lieu of proportional systems that aim to reflect the rich and broad diversity of popular votes, not merely the force of a particular majority.

Nor is it clear that democracy boils down to just the decision rule for elections (or for legislatures when acting on specific policies). Recent literature in comparative constitutional law, for example, stresses the existence of a meaningful choice to decide between “first-order” (or command-and-control) regulations of democracy on the one hand, and “second-order” architectures that shape “background competitive structures so as to make it difficult for anti-democratic parties to acquire or wield political power” on the other.⁶⁰ Both are now understood to be plausible strategies to entrench democratic competition against partisan lockups.⁶¹ In comparison to this analytic view, a “majority-vel-non” lens for evaluating the democratic bona fides of a constitutional system falls short. There are too many other materially significant institutional-design variables in democratic design at play to narrow the evaluative focus.

Indeed, prioritizing majority rule over other institutional features may generate misleading counsel. There is some empirical evidence to suggest that the choice of a majoritarian representational mechanism, as opposed to a proportional one, leads to a systematic right-leaning tilt in electoral outcomes.⁶² That is, a majoritarian representational mechanism does not always allow majorities to rule. Moreover, proportional electoral systems are empirically associated with higher levels of fiscal redistribution through social spending.⁶³ If majoritarian systems of representation inhibit socioeconomic equality at a societal level, and if the resulting inequality makes those systems less likely to be responsive to all interests (particularly those of minority groups),⁶⁴ then the case for majority-vote rule as a necessary quality of democracy is, at best, complicated. If nonproportional systems are systemically biased more generally and no easy mitigation is available without derogation from the majority principle, that case is perhaps untenable. Rather, insistence on majority-vote elections drives economic inequality of a sort that—as we shall see in a moment—may be inimical to democratic sustainability.

Could Chemerinsky’s commitment to majoritarianism be reconstructed in a more defensible way? I think there is a more plausible version of his position available. Rather than focusing on the ability of the majority to prevail, perhaps it is better to focus on what is not present. Perhaps we should ask if there is a permanently entrenched minority that can hold onto power even if majorities consistently would wish for policies that controvert that minority’s interests. In essence, this is the (negative) argument developed by Steven Levitsky and Daniel Ziblatt in a book published almost contemporaneously with Chemerinsky’s.⁶⁵ They contend that “[e]lectoral majorities often cannot win power, and when they win, they often cannot govern” in the United States.⁶⁶ On their view, the problem is not the absence of majoritarianism, but rather the persistence and obduracy of a certain minority-enabling form of what Samuel Issacharoff and Richard Pildes called “partisan lockups” in their pivotal 1998 article.⁶⁷ It is telling that Issacharoff and Pildes did not call for more majority rule. Rather, they argued for “an appropriately robust market in partisan competition.”⁶⁸ Revisiting that argument in 2024, they further recognized that the threat to democracy evolves over time, and that, in recent years, it has become crucially a “challenge of precluding extreme or factional minoritarian interests from capturing and controlling government.”⁶⁹ That project may call for reforms to institutions other than the decision rule at election time, such as reforms with respect to how parties select candidates for legislative and presidential office.

At a very minimum, then, the narrowly majoritarian benchmark for democracy is both inadequate and potentially misleading. While inverting the analytic lens and attending to the risk of minoritarian capture of political power may help, this alternative framing does not simply push attention toward a majority decision rule. A more careful analytic lens that accounts for other details of the institutional context may well be required.

III. What Is the Locus of Democracy?

Let us bracket now the question of ethical benchmarks and move on to the second element of Chemerinsky’s diagnosis. This is a close focus on the nation’s political institutions of representation as the locus of the contemporary democratic malaise. This focus is reflected, for example, in a reform agenda that combines changes to strengthen the majoritarian character of national elected bodies, while eliminating minoritarian checks on the latter’s power.⁷⁰ This agenda is also limited to the design of state institutions (as opposed to, say, macroeconomic dynamics or intraparty relations) and indeed even more narrowly trains on the subset of such institutions that translate popular preferences expressed through voting into office holding and then into public policy.⁷¹ This Part takes up this assumption about the institutional locus of democracy and its present pathologies.

In my view, this narrow focus misses the mark in two different ways. First, it ignores the risk that the design of different elected branches of government can undermine stable democratic rule as a result of either an asymmetrical interbranch relationship or the absence of nonelectoral “integrity” bodies within government, which could effectively check partisan lockups. Second, the contemporary risk to democracy does not seem to emerge simply from poor institutional choices but from macroeconomic conditions associated with the neoliberal dispensation that has been hegemonic globally since the 1980s.⁷² Under conditions of persisting high economic inequality sustained by such neoliberal domestic and international policies, better institutional choices would simply fail to clear a path toward a better democracy—rendering many of Chemerinsky’s proposed reforms futile. Let us take up each of those points in turn.

A. Alternative Institutional Diagnoses of Democratic Failure

Consider first the possibility that the main challenge to democracy may lie not in the vertical relationship between the electorate and legislative bodies, but instead in the horizontal relationships between the branches. In particular, that challenge originates in the hypertrophy of executive power coupled with the absence of bodies designed to ensure its legality and nonpartisan qualities.

In an influential essay, political scientist Juan Linz identified the presidentialist form of government as a threat to democratic stability on account of its rigid fixed terms, the competing claims to democratic legitimacy it creates, and the typically intolerant style of presidential politics.⁷³ The generality of Linz’s argument has been contested,⁷⁴ but even his critics acknowledge that “the historical record favors parliamentary democracies.”⁷⁵

A narrower version of Linz’s argument can be framed with respect to the American context: The U.S. presidency creates a high-stakes electoral prize because of its sweeping yet amorphous range of unenumerated powers. In the context of a highly polarized electorate, where a relatively small fraction of the national vote can change the result in the Electoral College,⁷⁶ the existence of something like a winner-takes-all dynamic generates harmful political dynamics that endanger democracy. One possibility is that control of the White House swings erratically between parties depending on the happenstance of a political moment. Another possibility is that presidents are tempted to use the governance tools available to them (and perhaps those that they can conjure from thin air)⁷⁷ in order to prevent their opponents from regaining power. The violence of January 6, 2021, and the catalytic role of President Trump in its run-up, provides a glaring (albeit still divisive) example.⁷⁸ And then there is the range of the exorbitant and often glaringly false claims made by the second Trump Administration.⁷⁹ Of course, Chemerinsky could not have relied upon these facts when developing his 2024 book—and I do not mean to criticize him for a lack of precognition. Still, I think that events following the book’s publication lend further support to the idea that an engorged executive branch threatens democratic rule.

In any event, Chemerinsky has warned in the past about the risks of unbridled executive authority.⁸⁰ So it is somewhat surprising that his argument here does not account for how such authority might be misused to thwart democracy. The result is a highly salient gap in his diagnosis of democratic dysfunction.

There is a second, more general, way to press this same line of critique: Rather than manifesting solely through excessive discretionary authority in presidential hands, a democratic deficiency might arise because of the absence, or perhaps desuetude, of institutions meant to prevent the misuse of legal authority for partisan entrenchment. Chemerinsky mentions gerrymandering, which is an example of this problem (pp. 69–77), but does not take the further step of adducing the institutional safeguards against such self-dealing.

Again, the comparative constitutional law literature offers a useful vocabulary and important examples. It identifies the possibility of an “integrity branch” that “guarantees . . . constitutional democracy in a political world where political parties play central roles.”⁸¹ By 2019, for example, some 64 percent of democracies worldwide had an independent body tasked with ensuring the integrity of elections.⁸² In the U.S. system, of course, the tripartite textual division of authorities in the Constitution is thought to limit the possibility for such truly independent integrity bodies, leaving integrity bodies to be established on precarious legal ledges scattered across the executive branch.⁸³ However, the efficacy of such internal checks can fairly be doubted, especially in moments of political strain such as our own.⁸⁴ As a corollary, it seems plausible to find fault in the absence of a secure constitutional body that is designed to ensure the integrity of elections and to limit the misuse of government power to entrench incumbents. This gap, in my judgment, is a significant reason for the vulnerability of American democracy. On this view, a critical deficiency in the American constitutional order is the recent judicial interpretation of Article II of the Constitution as a preclusive barrier to the maintenance of independent integrity bodies within the executive branch.⁸⁵

B. Economic and Social Causes of Democratic Failure

Constitutional law scholars naturally assume that their discipline offers a privileged perch for understanding society-wide challenges to democracy. This flattering misconception (of which I have also been guilty) may not hold true, however, if pressures on democratic rule arise not from the legal forms of government but from extrinsic factors that would be unaffected by constitutional reform, wholesale replacement, or secession.

It is impossible to understand the present conjuncture of American democracy without tracing its fault lines back to macroeconomic and social changes that began in the 1960s. Chemerinsky identifies one of these changes—demographic sorting between rural and urban areas along partisan lines (pp. 38–50). However, he does not trace the parallel, and causally intwined, shifts in the structure of domestic and international markets that have driven deindustrialization and the collapse of collective action on the labor side.⁸⁶ Historian Gary Gerstle glosses these developments in terms of a new “neoliberal order” centered on President Ronald Reagan’s agenda of domestic deregulation, the defeat of international Communism, and the extension of an open global trading regime.⁸⁷ Neoliberalism is also associated with a strategy of “locking in, and indeed locking up . . . democratic politics . . . preventing them from getting anywhere close to free markets and private property” through legal rules.⁸⁸ Under presidents like Reagan, this meant an attack on organized labor that accelerated preexisting declines in unionization rates.⁸⁹ Deunionization, in turn, has been strongly and universally correlated with sharp rises in economic inequality.⁹⁰ And as recent empirical work in comparative politics has demonstrated, inequality is strongly correlated with (and likely causally related to) the weakening of democracy.⁹¹

Of course, this highly compressed sketch is by no means a comprehensive account of the macroeconomic foundations of democratic unraveling today. Still, I hope it gestures toward the fact that there are powerful reasons for the conclusion that regression from democratic norms occurs in large part because of ambient macroeconomic conditions, translated into public policy not through constitutional rules but through statutory changes to regulation, labor law, and trade law. Those macroeconomic preconditions to democratic backsliding, moreover, are likely to persist even after substantial changes to constitutional text or doctrine. To the extent that “wealth inequality threatens democracy at the deepest level,”⁹² a constitutional reform that does not directly redistribute wealth and economic opportunity in some substantial way is unlikely to reverse a downward trajectory in the overall quality of our democracy. Perhaps a new or revised constitution offers a basis for more progressive policies. But explaining why constitutional change offers a simple turnkey solution for democratic malaise requires additional work to explain how a shift in the basic legal order influences a much larger set of economic arrangements.

In sum, Chemerinsky’s narrow focus on the institutions of formal political representation yields, at best, a very partial remedy to the problem of democratic dissolution. More plausibly still, legal and political institutions are best understood as merely mediating vehicles for the underlying economic and ideological drivers of democratic decay. Even if reformed, they might fail to stem such tides once they have been set in motion. Certainly once the waters have risen, their reform cannot be assumed to stand in, in any simple way, for a direct assault on the causes of such unraveling.

Conclusion

With this in mind, a more subtle and more pessimistic reading of Chemerinsky’s dark mulling over secession comes into view: He may well be more correct than he lets on. If indeed he is correct, then the downstream implications of his argument are very dismal for the nation and for democracy as an American project.

If the drivers of democratic malaise are structural and macroeconomic in nature, and if the institutional forces driving that sickness to its logical conclusion inevitably spill out beyond mere formal political structures, then the prognosis for democracy is far worse than Chemerinsky suggests. It is not just that the mechanisms of political representation in the Constitution are flawed; it is that the structural forces undermining the efficacy of democratic representation cannot be confronted through mere changes to the formal legal framework—in part because they work through macroeconomic vectors and in part because they have plainly already soaked into the sutures of our national partisan politics. At this stage, constitutional reform is only a partial and incomplete fix to the democratic malaise. A more profound and far-reaching reform to socioeconomic conditions through legal reform, however, is impossible because the constitutional mechanisms for policy change are themselves broken under the strain of the same crisis. We are, in a word, stuck.

At the same time, if there is no way out through a reformist vision of national politics either, particularly given the way in which economic elites are overrepresented in elected political institutions,⁹³ then the prospect of secession takes on a new color. It becomes the sole pathway to the deep socioeconomic transformation that would be necessary to make multinational democracy feasible. Chemerinsky, therefore, may end up in the (logically, if not practically) correct place—despite the flaws in his premises discussed here.

What follows from this? Recall that Chemerinsky is dismissive of reform paths within the present constitutional order and has an implausible account of potential constitutional reform through the Article V convention process.⁹⁴ While this leaves him with secession as the ultimate option, he is plainly of two minds when it comes to this possibility. On the one hand, he recognizes that it would be “enormously painful,” and on the other hand, he points approvingly to instances of “amicable” national “divorce” (pp. 172, 179). Surely, however, even the idea that secession would be met by anything other than horrific armed resistance is fanciful. In particular, a president who looks to Andrew Jackson (among other nineteenth-century political luminaries) for inspiration is undoubtedly one who would mobilize the full measure of armed force in response to a national fracture.⁹⁵ At this moment in our history, to think any White House (let alone the Trump Administration) would respond to secession with calm, poised reasoning seems wholly impossible.

So, where does this leave us? I think the implication of Chemerinsky’s analysis is one that he does not want to draw. If his underlying diagnosis has force, the sole pathway to what he, hardly implausibly, characterizes as a meaningful democratic form of rule may lie through violence, wrack, and intolerable ruin. This may seem an unduly pessimistic conclusion. But there is simply no reason why the political world needs to give us reasonable, as opposed to tragic, choices. Perhaps the greatest flaw in No Democracy Lasts Forever, then, is the fact that it looks back, like Orpheus in the Greek myth, to a possibility that no longer exists. Through airy comparisons to amicable dissolutions, it shies away at the very last moment from the full force of the tragedy it has so eloquently explicated.

* Frank and Bernice J. Greenberg Professor of Law, University of Chicago Law School.