The idea may seem outrageous: to challenge a founding text of immense prestige? Yet this is precisely what one of the most renowned legal scholars in the United States proposed in a controversial book before Donald Trump’s victory in the 2024 presidential election. This shaky Constitution, adopted in a vastly different society, today undermines the country’s democratic life, he asserted in the pages of the “Los Angeles Times.”
It is urgent that as many people as possible recognize that American democracy is in danger and that reforms are necessary. No form of governance is eternal, and it would be quite naive to believe that the United States is invulnerable to the forces that have annihilated many democracies.
Although the causes are complex, many of the problems we face today stem from choices made during the drafting of the Constitution—choices that increasingly haunt us. After two hundred years, it is time to consider drafting a new Constitution for more effective and democratic governance.
Multiple signs indicate that American democracy is in serious trouble. Citizens’ trust in their institutions has never been lower. According to the Pew Research Center, it has plummeted from 77% in 1964 to 20% today. At the same time, the country is deeply divided, more so than it has been since Reconstruction [the period from 1865 to 1877 that followed the Civil War].
It is particularly those in their twenties and thirties who have lost faith in democracy. A study from the Brookings Institution reveals that 29% of “young Americans believe that democracy is not always preferable to other forms of political governance.”
A Not-So-Democratic Constitution
The Constitution’s authors, wary of democracy, created the electoral college to ensure that elites would choose the president. While throughout the 20th century no popular vote loser became president through the electoral college, demographic changes and ideological shifts in the parties have made this paradox recurring since the early 21st century. This happened in 2000 and 2016; it almost occurred in 2004 and 2020. In the last election, only 42,921 different votes in Arizona, Georgia, and Wisconsin would have been enough for Donald Trump to be re-elected president, despite losing the popular vote by nearly 7 million votes [this year, although results are not yet final, Trump is on track to win the majority of votes again].
This mess dates back to the ratification of the Constitution, which was based on a tortuous compromise. To gain the approval of all parties, the authors agreed that each state would be represented in the Senate by two senators. When the Constitution was drafted, the most populous state (Virginia) had 12 times the population of the least populous state (Delaware). According to the 2020 census, the most populous state (California) has 68 times the population of the least populous state (Wyoming). This situation makes the Senate even more undemocratic than it was originally. As a result, a minority of senators, representing only a tiny fraction of the population, can block any legislative proposal.
In the Constitution, the House of Representatives was meant to be the people’s representative body. However, what is known as gerrymandering—the manipulation of electoral district boundaries by the ruling party for electoral advantage—has become highly effective. In Pennsylvania, for example, where districts were drawn by local Republican officials, Democrats garnered between 45% and 51% of the votes in a series of elections but won only 5 out of 18 available seats in the House of Representatives.
Difficult but Not Impossible
These problems are serious, but the situation is not yet hopeless. It is possible—and crucial—to correct the anomalies and save American democracy.
Many changes can be made without necessarily amending the Constitution. The Senate can evolve its internal rules to eliminate obstruction; Congress can legislate to end partisan gerrymandering in the House of Representatives; new laws can be enacted to protect voting rights.
As for the inherent gaps in the Constitution, nearly all of them can be rectified through amendments—provided this effort is backed by the will to move in that direction. Amending the Constitution is extremely difficult but not impossible. While it has been rare in recent decades, amendments were more frequently achieved in the past. From 1913 to 1920, for example, four amendments were adopted, including those permitting the income tax, instituting the direct election of senators, and granting women the right to vote.
Facing Reality
Finally, there is another solution besides adopting a series of individual amendments: starting from scratch by drafting a new Constitution. It doesn’t take a great scholar to grasp the absurdity of the situation: how can a major power like ours base its political framework in the 21st century on a document written at the end of the 18th century, when we were still a small, poor, and relatively insignificant nation?
Suggesting the idea of a new Constitution, during a time of extreme partisan divisions, may seem surprising, even perilous. However, it was under a similar context that the Constitution was adopted in Philadelphia. In many states, it was ratified by the narrowest of margins.
Let’s be clear, I do not downplay the difficulty of a paradigm shift in any form. But we must confront the reality, however distressing it may be: the uncertain future of the country if it does not undertake major reforms. I hold out hope that by looking deep into the abyss, we will realize the necessity of action and find the strength required to begin the process that will ultimately allow us to achieve this.
Erwin Chemerinsky
