Having read Daniel Lazare's "The Frozen Republic" when it came out many moons ago, with bits of my Goodreads review excerpted below, I've long known that in many ways, the US Constitution is broken. The electoral college and its modern winner-take-all aspects mean its broken for third parties, too.
And, speaking of, per this NYT book review, it's nice that Erwin Chemerinsky thinks so, too. Given today's United States, no, I don't want an Article V Convention, unlike him. I'm afraid it would send us back to the Stone Age, hijacked by the remnants of the Koch empire, winger tech dudebros and more. Today, the people who want a "Convention of States" are the types of people who want to get rid of the 17th and 19th Amendments, so that state legislatures even more easily bought than Congress can be bought off to elect US Senators, and so that women know their place of being barefoot, pregnant and voiceless.
Secession? Interesting. Rare indeed that a "blue state" person will be open about that. As someone who lives in a "red state," what would I do if that happened, especially if, to pun away, such a secession succeeded? I mean, would the remnant US honor Social Security payments to people in Chemerinsky's "Pacifica"? If not, it would laugh at lawsuits to compel payment, even if that affected "the full faith and credit" in various ways.
That said? Chemerinsky is 20 years behind the Lazare curve:
The Frozen Republic: How the Constitution Is Paralyzing Democracy by Daniel Lazare
My rating: 5 of 5 stars
A must-read laundry list of how anachronistic the US Constitution really is, and why, with Lazare making a strong argument for junking the whole thing (not counting the amendments that give us our rights) and starting over ... with an eye to a non checks-and-balances gridlock parliamentary government instead of our current nonsense.
This is a book I have re-read more than once.
And, in what is arguably a bit of serendipitous timing, Lazare starts the book with a threat of secession by the state of California, in conjunction with the 2020 election.
Beyond this, readers should look for other books about the realities of the Constitutional Convention. Sheldon Wolin is one good one.
View all my reviews
The piece at top links to a 2023 column by Ryan Dorfler and Samuel Moyn, the latter of whom I've read elsewhere. Let's start with their thesis:
The real need is not to reclaim the Constitution, as many would have it, but instead to reclaim America from constitutionalism.
The idea of constitutionalism is that there needs to be some higher law that is more difficult to change than the rest of the legal order. Having a constitution is about setting more sacrosanct rules than the ones the legislature can pass day to day.
Simple and basic enough.
Here are excerpts from how they think that should play out:
It is a breath of fresh air to witness progressives offering bold new proposals to reform courts and shift power to elected officials. But even such proposals raise the question: Why justify our politics by the Constitution or by calls for some renovated constitutional tradition? It has exacted a terrible price in distortion and distraction to transform our national life into a contest over reinterpreting our founding charter consistently with what majorities believe now.
No matter how openly political it may purport to be, reclaiming the Constitution remains a kind of antipolitics. ...
It’s difficult to find a constitutional basis for abortion or labor unions in a document written by largely affluent men more than two centuries ago. It would be far better if liberal legislators could simply make a case for abortion and labor rights on their own merits without having to bother with the Constitution.
By leaving democracy hostage to constraints that are harder to change than the rest of the legal order, constitutionalism of any sort demands extraordinary consensus for meaningful progress. It conditions democracy in which majority rule always must matter most on surviving vetoes from powerful minorities that invoke the constitutional past to obstruct a new future.
Doable? Probably not. Not by liberals. Maybe by leftists. The idea, for example, that Congress itself would vote to make the U.S. Senate even partially like the Canadian Senate is ... laughable.
Within present limits, the best options are for a leftist president to govern by executive order and getting a Supreme Court that, contra Ted Cruz, knows the most overlooked amendment is the Ninth not the Tenth and makes all sorts of "people power" constitutionality rulings.
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