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.