No Democracy Lasts Forever

1. American Democracy Faces a Grave Crisis.

Democracies are there until they are not.

Crisis is real. American democracy is in grave danger, a reality few would have acknowledged a decade ago but is now widely felt across the political spectrum. Public confidence in all branches of the federal government is at an all-time low, with many believing the government is dysfunctional and incapable of addressing urgent issues like climate change or economic inequality. This widespread sense of crisis is exacerbated by political polarization, which is more intense than at any time since Reconstruction.

Signs of fragility. Recent events, particularly the attempted coup following the 2020 election and the January 6th insurrection, highlight how fragile democracy is. The fact that a significant portion of the population believes, without evidence, that the election was stolen is a symptom of deeper problems. International rankings now place the U.S. on par with flawed democracies like Brazil and Turkey, reflecting a decline in democratic health.

Constitution's role. While many factors contribute to this crisis, the Constitution itself bears significant responsibility. Its inherent flaws, stemming from compromises made at its inception, have been magnified by changes over the last half-century. Recognizing how the Constitution contributes to the problem is essential for understanding and ultimately solving the crisis facing American democracy.

2. The Constitution's Original Flaws Threaten Democracy.

In fact, the Constitution had serious flaws from the outset as a result of compromises that were made to get it enacted.

Foundational defects. The Constitution, though revered, was profoundly anti-democratic from the start due to compromises necessary for its adoption. The framers distrusted direct democracy, evident in the Electoral College for the presidency, state legislatures choosing senators (until 1913), and lifetime appointments for unelected federal judges. Only the House of Representatives was directly elected by the people.

Slavery's stain. A tragic flaw was the explicit protection of slavery, including the Three-Fifths Clause, the twenty-year ban on prohibiting slave importation, and the Fugitive Slave Clause. These compromises haunted the nation and contributed to enduring racial inequality. The Constitution also failed to protect Native Americans, leading to devastating consequences.

States' rights emphasis. The framers prioritized states' rights, limiting national government power and granting states significant autonomy. This included equal representation in the Senate regardless of population, a provision made unamendable. While intended to balance power, this emphasis has historically hindered federal action on critical issues like civil rights and child labor.

3. The Electoral College Undermines Popular Will.

The Electoral College is antithetical to democracy, and any president chosen after losing the popular vote inherently lacks legitimacy.

Undemocratic design. The Electoral College, where presidential victory requires 270 electoral votes rather than winning the national popular vote, was a mistake from the beginning. It reflected the framers' distrust of the people and was heavily influenced by the desire to protect the political power of states with slavery, as enslaved people counted towards representation but could not vote. This system allows a candidate to win the presidency despite losing the popular vote.

Increased misfires. While popular vote losers becoming president was rare in the 20th century, it has happened twice in the 21st century (2000 and 2016) and nearly happened twice more (2004 and 2020). This increased likelihood is due to population shifts that disproportionately benefit less populous states and political realignments that concentrate Democratic voters in large, underrepresented states. Today, states representing only 22% of the population could theoretically choose the president.

Winner-take-all problem. The problem is compounded by the winner-take-all system used by most states, where the popular vote winner in a state receives all its electoral votes. This means votes for the losing candidate in a state have no effect and allows a candidate to win the Electoral College by narrowly winning several states while losing the national popular vote by millions. This system is inconsistent with one-person, one-vote and has a racially discriminatory effect on minority voters concentrated in certain states.

4. The Senate Structure and Filibuster Are Profoundly Anti-Democratic.

The filibuster dramatically compounds the problem as a minority of a minority can stop virtually any legislation.

Unequal representation. The Senate, with two senators per state regardless of population, was always inconsistent with majoritarian democracy. This anti-democratic nature has worsened significantly as population disparities between large and small states have grown; a senator from California represents seventy times more people than a senator from Wyoming. This means a minority of the population can control the Senate.

Filibuster's evolution. The filibuster, a tool allowing a minority of senators to block legislation, exacerbates the Senate's undemocratic character. While historically used sparingly (famously against civil rights bills), Senate rule changes in the 1970s made it far easier to employ. The introduction of the "two-track system" and the "stealth filibuster" mean senators no longer need to physically hold the floor; a mere threat of filibuster requires 60 votes for cloture.

Gridlock and paralysis. This effective requirement of 60 votes for most legislation means a minority of senators, representing a distinct minority of the population, can block nearly any bill. This contributes significantly to government gridlock and the public's sense that government is broken. Important legislation, like voting rights bills passed by the House, has died in the Senate due to filibusters by senators representing a minority of the population.

5. Partisan Gerrymandering Corrupts the House.

Voters are supposed choose their elected officials; in partisan gerrymandering, elected officials choose their voters.

Rigging elections. Partisan gerrymandering, the practice of drawing election districts to maximize safe seats for the controlling party, undermines the House of Representatives, the only body originally designed for direct popular election. While historically present, sophisticated computer algorithms and detailed voter data now allow for gerrymandering with surgical precision, making it far more effective and durable. This practice ensures politicians choose their voters, not the other way around.

Packing and cracking. Parties use techniques like "packing" opposing voters into few districts and "cracking" them across many districts to dilute their influence. This allows a party to win a supermajority of seats even with only a slight majority or even a minority of the statewide vote, as seen in states like North Carolina and Pennsylvania. This rigs elections and entrenches one party in power, making it difficult for voters to change representation.

Undermining democracy. Gerrymandering violates the principle of equal protection by diluting the votes of the minority party and infringes First Amendment rights by disadvantaging political association. It contributes to political polarization by creating safe, non-competitive districts and erodes public trust by making elections feel unfair. The Supreme Court's 2019 decision barring federal court challenges to partisan gerrymandering has allowed this practice to flourish unchecked in many states.

6. The Supreme Court Actively Undermines Democracy.

The Court’s decision was not about legal principles; the basic maxim of stare decisis—respect for precedent—was shredded.

Anti-democratic judiciary. The federal judiciary, particularly the Supreme Court, is inherently anti-democratic due to lifetime appointments and selection by the president with Senate confirmation. While intended to ensure independence, longer life spans mean justices serve for decades, potentially becoming out of touch. Accidents of history and political maneuvering have resulted in a Court composition that is often much more conservative than the public.

Eroding voting rights. In recent years, the Court's rulings have actively undermined democracy. It gutted key provisions of the Voting Rights Act, making it harder to challenge discriminatory voting laws adopted by states. The Court has also made it harder for federal courts to remedy illegal election practices close to an election, potentially allowing discriminatory maps or rules to be used.

Empowering the wealthy. The Court's decision in Citizens United allowed corporations and wealthy individuals to spend unlimited money in elections, giving them disproportionate influence. This decision, based on a controversial interpretation of the First Amendment, has led to an explosion of spending, often "dark money" with undisclosed donors, further eroding public confidence in the fairness of the electoral process.

7. Racial Inequality, Rooted in the Constitution, Persists.

The enormous racial inequalities, in every aspect of life and by every measure, that have existed throughout American history and that continue largely unabated, must be seen as a direct result of the choices made in 1787.

Legacy of slavery. The Constitution's protection of slavery was a devastating flaw from the outset, contributing to enduring racial inequality. The Three-Fifths Clause, the allowance of slave importation, and the Fugitive Slave Clause institutionalized racism. This legacy meant the Constitution lacked any mention of equal protection until the 14th Amendment in 1868, and even then, enforcement was delayed for nearly a century.

Persistent disparities. Despite civil rights advances, profound racial inequalities persist across every measure of life.

• Significant gaps exist in income and wealth between white families and families of color, with the wealth gap widening in recent decades.
• Disparities are stark in poverty rates, particularly for children of color.
• Incarceration rates for African American men are dramatically higher than for white men.

Threat to democracy. These vast racial disparities, stemming from the nation's founding compromises, are exacerbated by the very constitutional flaws and recent developments that undermine democracy (Electoral College, Senate, gerrymandering, Court rulings). A society with such deep and growing inequalities, especially along racial lines, faces a threat to its democratic survival, as history shows wealth gaps can pave the way for authoritarianism.

8. Internet and Social Media Endanger Democracy.

Future elections will be decided because of false speech circulated over social media, especially in the days just before the voting.

Double-edged sword. The internet and social media have revolutionized speech, democratizing access to information and allowing individuals to reach mass audiences instantly. This "cheap speech" environment is a golden age for expression, empowering previously voiceless individuals and providing unprecedented access to information. However, these same virtues pose serious threats to democracy.

Spread of falsehoods. The ease and speed of online communication facilitate the rapid spread of false information, including sophisticated deepfakes that appear real. Studies show false news spreads faster and wider than truth, often amplified by algorithms prioritizing engagement over veracity. This makes it difficult for voters to make informed decisions and undermines trust in credible news sources.

Foreign interference & polarization. Social media enables foreign governments to interfere in elections, as seen with Russia in 2016, by spreading disinformation and exploiting divisions. While the First Amendment protects speech regardless of source, this poses a unique challenge. Furthermore, social media contributes to extreme political polarization by creating "echo chambers" where individuals are exposed only to information reinforcing existing beliefs, hindering constructive discourse and consensus-building.

9. Fixing the Constitution is Necessary but Difficult.

A crucial flaw in the Constitution—reflecting its profoundly anti-democratic character—is the enormous difficulty of amendment.

Needed reforms. To save American democracy, fundamental reforms are essential, including:

• Eliminating the Electoral College for direct popular election.
• Allocating Senate seats based on population.
• Abolishing or reforming the filibuster.
• Eliminating partisan gerrymandering.
• Increasing the size of the House of Representatives.
• Establishing term limits for Supreme Court justices.
• Overturning Court decisions undermining democracy (campaign finance, voting rights).
• Addressing profound racial inequalities.
• Addressing threats from social media (false speech, foreign interference).

Paths to change. Some reforms could potentially be achieved without constitutional amendment:

• Courts could declare the Electoral College or winner-take-all laws unconstitutional under the Equal Protection Clause.
• The Senate could change its rules to eliminate the filibuster.
• Congress could pass legislation mandating independent commissions for House districts.
• Congress could pass legislation increasing the size of the House.
• Congress could potentially impose term limits on justices by statute (though constitutionality is debated).
• The Supreme Court could overrule its own precedents on campaign finance, voting rights, and gerrymandering.
• Courts could eliminate the requirement of proving discriminatory intent for equal protection violations.
• Legislation could ban deepfakes before elections and strengthen disclosure laws.

Difficulty of amendment. However, the Constitution's amendment process is extremely difficult, requiring two-thirds of both houses of Congress and three-quarters of the states. This high bar, intended to prevent tyranny of the majority, makes essential reforms unlikely, especially those that would reduce the political power of states or parties benefiting from the current system. While amendments have occurred in history, the current political climate makes achieving the necessary consensus incredibly challenging.

10. A New Constitution May Be Needed.

Beyond a spate of separate amendments, it is imperative, after two hundred years, that Americans begin to think of drafting a new constitution to create a more effective, more democratic government.

Outdated blueprint. It is absurd to continue governing a large, wealthy, technologically advanced 21st-century nation with a document written in 1787 for a small, agrarian slave society. The increasing embrace of originalism by the Supreme Court, limiting constitutional meaning to the views of the framers, highlights the need for a document relevant to today's world. At some point, Americans must consider whether the current Constitution is a liability and contemplate replacing it.

Process for a new constitution. Article V provides a mechanism for calling a constitutional convention if two-thirds of state legislatures apply, or Congress could call one itself. A new convention could draft a document that keeps the strengths of the current Constitution while fixing its manifest flaws, particularly those undermining democracy. However, the process would be daunting, requiring careful thought about delegate selection and scope.

Radical ratification. To avoid replicating the flaws of the current system (like the Electoral College and equal Senate representation), ratification of a new constitution should ideally be by a national popular vote, not by state governments that benefit from the current structure. While the current Constitution doesn't provide for this, the original Constitution was adopted without complying with the amendment rules of the Articles of Confederation, setting a precedent for change outside prescribed procedures.

11. Inaction Risks Secession or Authoritarianism.

Without substantial and meaningful change, I think calls for some form of secession will increase.

Consequences of failure. If the fundamental problems with the Constitution are not fixed and the government remains ineffective and polarized, the country faces dire consequences. One risk is a drift towards authoritarianism, a pattern seen in other former democracies, with disturbing notes already present in political rhetoric and events like January 6th. The appeal of authoritarianism to a significant fraction of the population is a cause for great worry.

Growing calls for secession. Another potential outcome is increased calls for secession. While currently a murmur, deep ideological divisions between states could lead to serious consideration of separation if the political system fails to address grievances. Polls already show a significant minority of voters in both parties are open to the idea of splitting the country by red and blue states.

Contemplating the unthinkable. While secession carries the risk of violence and would have unfathomable international consequences, it is worth contemplating, not as an advocacy, but as a potential outcome if the current path continues. Secession could take various forms, from states forming separate nations to a radical devolution of power to states while retaining a limited national government for military and foreign affairs. Facing this potential abyss might provide the necessary impetus for fundamental constitutional reform.

Last updated: May 15, 2025