Balkinization: An Admiring, But Skeptical Response to Professor Stearns

An Admiring, But Skeptical Response to Professor Stearns

Guest Blogger

For the Balkinization symposium on Maxwell Stearns, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy (Johns Hopkins University Press, 2024).

Erwin Chemerinsky

            Although I disagree with most of Professor Stearns proposals for reforming the Constitution, I very much admire his book, Parliamentary America: The Least Radical Means of Radically Repairing Our Broken Democracy. His book is legal scholarship at its very best.   Professor Stearns offers profound insights about the problems facing our country and presents original proposals for how to fix them. The book is accessible to a wide audience; he is masterful in explaining complex concepts in a clear way.   He impressively weaves together historical information, economic analysis, and comparative perspectives. I learned a great deal from reading it, especially as to how many other countries in the world structure their democracies.

            I very much agree with Professor Stearns’ premises. In 2024, I published a book, No Democracy Lasts Forever: How the Constitution Threatens the United States, which in many ways is quite similar to Professor Stearns’ book. Both of us begin with the premise that there is a crisis facing American democracy and each of us sees many of the problems as stemming from the Constitution itself, as well as choices made in more recent years, such as the Supreme Court preventing federal courts from invalidating partisan gerrymandering.

            In appraising possible solutions, it is important to be clear about whether the discussion is about what should be done or about what realistically will be done. Both are important questions, but they are distinct inquiries.

            In terms of what should be done, I think Professor Stearns and I agree as to many necessary reforms: eliminate the Electoral College, end equal representation of states in the United States Senate, stop partisan gerrymandering of districts for the House of Representatives, create term limits for Supreme Court justices.   Each of these is discussed in Professor Stearns’ book. I was surprised that Professor Stearns does not discuss campaign finance reform. The Supreme Court’s decisions in Buckley v. Valeo and Citizens United v. United States have corrupted our political system and bred cynicism about it.   Changing how elections are paid for also should be on the list of essential reforms.

            My sense is that adopting all of these changes would go a long way to solving the problems Professor Stearns’ identifies. To be sure, I don’t think they would solve the deep polarization in American society, including the role of social media in this, that Professor Stearns discusses. But I don’t believe any of his proposals would solve that either.

            The response to these proposed reforms could be that realistically they won’t happen. But if what can and will occur is the focus, I see no greater likelihood that Professor Stearns’ proposals have a chance of becoming a reality.   He proposes three constitutional amendments: to substantially increase the size of the House of Representatives with political parties choosing half the members, to create a Parliamentary system of government where Congress chooses the President, and to allow the President to be removed by votes of no confidence in the House of Representatives.   History shows that constitutional amendments, let alone ones that would be dramatic changes in American government, are enormously difficult to enact.   The Constitution has been amended only 17 times since 1791 and two of the amendments were to create and repeal Prohibition. I also am highly dubious that there is a constituency for these proposals to do the hard work to get them adopted, let alone that there ever would be the widespread social consensus needed for constitutional amendments.

            To return to the question of what should be done, I am skeptical of the desirability of many of Professor Stearns’s proposals. He sees much of the problem as stemming from having a two-party system. But I question whether the two-party system is what is responsible for the polarization in society, the loss of faith in government and other institutions, or the gridlock in the federal government.   It also is unclear that a multi-party system would be better in fixing these underlying problems.

  My fear is that a multi-party parliamentary system could increase the influence of fringe parties as more dominant parties will need them to put together a coalition that gives them a majority. That is exactly what has happened in Israel, where Prime Minister Benjamin Netanyahu has had to make deals with far-right wing, radical parties to forge a coalition to stay in office. The result is a government that is substantially to the right of the majority of the nation’s population. A multiplicity of parties, largely ideologically defined, risks increasing, not lessening, political polarization.

            I agree with Professor Stearns about the desirability of significantly increasing the size of the House of Representatives. The size of the House has not increased since 1929, despite great increases in population in the United States. Also, more House seats would lessen the chances of the Electoral College choosing as President the loser of the popular vote because each state’s electors is a sum of its Representatives and Senators.

            But I strongly disagree that it would be desirable to have half the members of the House chosen by political parties, with voters casting ballots for the one of their choice. The House of Representatives is the only part of the federal government created by the Constitution that from the outset was directly elected by the people. Having the political parties choosing its members is fundamentally at odds with the people being able to directly choose their representatives.

  I also think giving political parties more control over the government would increase the crisis in confidence in our political system. Political parties in the United States are not held in high esteem and increasing their power would be regarded with suspicion by most in this country. It is for this reason that there has been a substantial effort over time to lessening their role in nominating candidates for President, shifting to political primaries where the voters have a much greater say in who will the nominees.

            I also disagree with Professor Stearns’ core proposal, reflected in the title of the book, to move to a parliamentary form of government.   I worry greatly that checks and balances would be greatly compromised if the President and Congress always were from the same political party. Professor Steans correctly describes the underlying philosophy of the Constitution in creating an elegant structure were two branches of government must act for all major government conduct: Congress and the President are involved in enacting a law, the President and courts in enforcing it, Congress and the President in declaring and waging war, the President and the Senate in appointing ambassadors or federal judges or in negotiating and ratifying treaties. I believe that a substantial problem since World War II has been abandoning this framework and significantly increasing the unchecked powers of the President.

            But if the President and Congress are always from the same political party, as is the case in a parliamentary system, the chances of a check on presidential action are far less. The first year of this Trump presidency powerfully shows the problem with having Congress and the President from the same party. Congress has played no meaningful role in checking President Trump despite unprecedented unconstitutional actions.

  Professor Stearns final proposal is an amendment to allow a no confidence vote on the President.   It would allow the House of Representatives to remove a President if 60 percent vote to do so. I am unsure whether it would be desirable to make it easier to remove Presidents in the middle of terms. The current constitutional requirements for impeachment and removal – requiring a majority vote of the House and two-thirds of the Senate -- create an almost insurmountable hurdle. There is no realistic accountability for a second term President. Making it easier to remove the President, especially mid-term, will enhance accountability, but at the expense of stability in government. I don’t know the best balance, but my instinct is to support Professor Stearns’ proposal.

            I agree with Professor Stearns’ conclusion that we must confront the crisis facing American democracy and that includes considering revising the Constitution. My preference, though, would be to do so directly: eliminate the Electoral College, end equal state representation in the Senate, stop partisan gerrymandering, create term limits for Supreme Court justices, reform our system of campaign finance. Contrary to Professor Stearns, I think these are “the least radical means of radically repairing our broken democracy.”

Erwin Chemerinsky is Dean and Jesse H. Choper Distinguished Professor of Law, University of California, Berkeley School of Law. He can be reached at echemerinsky@berkeley.edu.

Posted 9:30 AM by Guest Blogger [link]