The recent New York Times Book Review article, “The Constitution Is Sacred. Is It Also Dangerous?” by Jennifer Szalai, raises serious concerns about the interpretation and role of the United States Constitution in contemporary American politics. Szalai’s review of Erwin Chemerinsky’s book, No Democracy Lasts Forever, argues that the Constitution has become an obstacle to democracy, contributing to the rise of authoritarian figures and fostering political dysfunction. The article suggests that the Constitution’s structure is inherently undemocratic, outdated, and potentially dangerous. However, this perspective reflects a fundamental misunderstanding of the Constitution’s role as the bedrock of American democracy. We refute the claims made in the review and will emphasize the Constitution’s essential purpose: safeguarding liberty, balancing power, and ensuring the continued evolution of American democracy.
The Constitution as a Foundation of Democracy, Not Its Demise
One of the central arguments in Szalai’s review is that the Constitution, rather than safeguarding democracy, is responsible for undermining it. This is based on the premise that certain provisions, such as the Electoral College and the structure of the Senate, are undemocratic. However, this perspective overlooks the Constitution’s primary role in protecting minority rights and preventing the tyranny of the majority, which is a cornerstone of a functioning democracy.
The Electoral College, for instance, is often criticized for allowing a candidate to win the presidency without securing the popular vote, as happened in the 2016 election. Critics argue that this system is undemocratic and gives disproportionate power to smaller states. However, the Founding Fathers designed the Electoral College with the intent of balancing the influence of populous and less populous states, ensuring that presidential candidates must gain broad support across the country. This system prevents the most populous regions from dominating national elections and ensures that diverse interests are considered in the selection of the nation’s leader.
Similarly, the structure of the Senate, where each state has two senators regardless of population, is criticized for giving smaller states undue influence. Yet, this design is another example of the Constitution’s careful balance between the interests of large and small states. The Senate was created to represent states as equal entities within the federal system, while the House of Representatives ensures representation based on population. This bicameral structure is essential for maintaining the federal nature of the United States and preventing the concentration of power.
Moreover, the Constitution’s checks and balances, as seen in the roles of the Senate, the House, and the presidency, are fundamental to preventing any one branch from becoming too powerful. The appointment of Supreme Court justices, which Szalai criticizes, is a key example of this. The lifetime appointment of justices ensures that the judiciary remains independent from the political pressures that affect the Executive and Legislative branches. While the Senate’s role in confirming justices might appear undemocratic to some, it is, in fact, a critical component of maintaining a balanced and stable government.
The Misunderstanding of Originalism
Another significant point in Szalai’s review is the critique of originalism, the judicial philosophy that interprets the Constitution according to its original meaning at the time it was written. Szalai suggests that originalism is regressive and hinders the development of a more inclusive democracy. This interpretation misrepresents the principles and purposes of originalism.
Originalism is not about turning back the clock or resisting progress; it is about ensuring that the Constitution is interpreted as it was intended by its framers. This approach provides a stable and consistent framework for interpreting laws and upholding rights. It prevents the judiciary from imposing its own views and ensures that changes to the Constitution reflect the will of the people through the amendment process, rather than judicial activism.
Far from being regressive, originalism has supported progress in civil rights and liberties. For example, the landmark decision in Brown v. Board of Education (1954), which ended racial segregation in public schools, was rooted in the original meaning of the 14th Amendment’s Equal Protection Clause. Originalist principles were also applied in District of Columbia v. Heller (2008), which affirmed an individual’s right to bear arms under the Second Amendment. These decisions illustrate that originalism, when applied correctly, protects and expands individual rights.
Furthermore, originalism serves as a safeguard against the arbitrary exercise of judicial power. Without a clear and consistent method of interpreting the Constitution, the judiciary could become a vehicle for imposing the personal preferences of judges, undermining the democratic process. Originalism, by contrast, respects the Constitution’s text and history, ensuring that any changes to the law come through the proper channels — namely, through the people and their elected representatives.
The Constitution’s Resilience Through History
Szalai’s review, following Chemerinsky’s arguments, paints the Constitution as an inflexible document that has failed to adapt to modern society’s needs. This portrayal is not only misleading but also ignores the numerous ways in which the Constitution has proven resilient and adaptable throughout American history.
The Constitution was designed with mechanisms for change, most notably through the amendment process. This process allows the Constitution to evolve in response to the changing needs and values of society. Historical amendments, such as the abolition of slavery (13th Amendment), the granting of citizenship and equal protection under the law (14th Amendment), and the extension of voting rights to women (19th Amendment), are all examples of how the Constitution has been successfully amended to reflect the progress of American society.
Moreover, the Constitution’s flexibility is evident in how it has been interpreted by the courts over time. The Supreme Court has played a crucial role in interpreting the Constitution to address contemporary issues. For instance, the decision in Obergefell v. Hodges (2015) extended the right to marry to same-sex couples, demonstrating how the Constitution can be applied to protect rights in a modern context. The Constitution’s ability to be interpreted in light of new circumstances is one of its greatest strengths, allowing it to remain relevant while still preserving the principles of limited government and individual liberty.
It is also important to recognize that the Constitution’s endurance through over two centuries of political, social, and economic change is a testament to its strength. It has guided the United States through civil war, industrialization, world wars, civil rights movements, and the digital revolution. This resilience is not a sign of the Constitution’s obsolescence, but rather its effectiveness as a living document that continues to protect the fundamental rights and freedoms of all Americans.
The Role of Compromise in the Constitution’s Creation and Its Enduring Strength
One of the more controversial arguments in Szalai’s review is the suggestion that the compromises made during the drafting of the Constitution, particularly regarding slavery, are evidence of its inherent flaws. While it is true that the Constitution was born of compromise, including morally troubling ones, these compromises were necessary to create a unified nation. Without them, it is unlikely that the United States would have been able to form a strong central government capable of surviving the early challenges it faced.
The Three-Fifths Compromise, for example, was a deeply flawed solution to the contentious issue of slavery, but it was a compromise that allowed for the formation of the Union. The alternative could have been the disintegration of the nascent nation before it even began. It’s important to understand that the Constitution was not intended to be a perfect document from the start, but rather a framework upon which the country could build and improve.
Moreover, these compromises did not permanently embed inequality in the Constitution. Instead, they set the stage for future generations to address and rectify these injustices. The Civil War Amendments (13th, 14th, and 15th Amendments) abolished slavery, granted citizenship to all born or naturalized in the United States, and protected voting rights regardless of race. These amendments show the Constitution’s capacity for moral and legal growth, affirming that the Constitution is not static but rather a document designed to evolve.
Furthermore, the flexibility of the Constitution allowed the civil rights movement of the 20th century to achieve monumental progress. Landmark legislation and court decisions like the Civil Rights Act of 1964 and the Voting Rights Act of 1965 were grounded in the constitutional principles of equality and justice. These advances illustrate that the Constitution’s framework, though born of compromise, provides the tools necessary for the expansion of rights and freedoms.
The False Narrative of Constitution Worship and Its Alleged Dangers
Szalai’s article also perpetuates the idea that reverence for the Constitution, what she refers to as “Constitution worship,” is inherently dangerous and stifles progress. This argument fundamentally misunderstands why so many Americans hold the Constitution in such high regard. Reverence for the Constitution is not about blind adherence to an outdated document; rather, it is about recognizing the enduring wisdom embedded in its principles and the protections it offers against tyranny.
The so-called “worship” of the Constitution is rooted in its proven effectiveness as a safeguard of liberty. The Constitution has endured because it strikes a delicate balance between order and freedom, between governmental authority and individual rights. This balance is crucial in a world where power can easily be abused, and rights can be infringed upon. By maintaining a strong commitment to the Constitution, Americans ensure that any changes to the structure of government or to fundamental rights are carefully considered and democratically achieved.
Moreover, the Constitution’s role as the supreme law of the land has provided a stable foundation upon which American society has been built. The idea that this stability somehow stifles progress is misguided. The Constitution does not prevent progress; rather, it channels it through democratic processes, ensuring that changes reflect the will of the people rather than the whims of those in power. This is a critical distinction that ensures long-term stability and prevents the kind of authoritarianism that Szalai ironically fears.
It’s also worth noting that many of the most significant social and political movements in American history have succeeded precisely because they worked within the framework of the Constitution. The abolitionist movement, the civil rights movement, and the women’s suffrage movement all invoked constitutional principles to argue for justice and equality. Far from being an obstacle, the Constitution provided the legal and moral foundation for these transformative changes.
The Danger of Undermining Constitutional Faith
One of the most concerning aspects of the arguments presented in Szalai’s review is the potential to undermine public confidence in the Constitution. The suggestion that the Constitution is outdated or even dangerous can erode the trust that is essential for the functioning of American democracy. When citizens lose faith in the Constitution, they may become more susceptible to extreme ideologies that promise quick fixes but ultimately lead to the erosion of rights and freedoms.
Undermining confidence in the Constitution can also create a vacuum where alternative governance models, some of which may be authoritarian or undemocratic, gain traction. History has shown that when societies lose faith in their foundational institutions, they are at greater risk of falling into chaos or tyranny. The Constitution has served as a bulwark against such outcomes for more than two centuries, and it is vital that this protection remains intact.
The Constitution is not a perfect document, and it has required amendments and reinterpretations over the years to address injustices and adapt to changing times. However, it remains the best defense against the concentration of power and the erosion of individual rights. By maintaining faith in the Constitution, Americans ensure that their democracy remains robust, adaptable, and resilient in the face of challenges.
Defending the Constitution as the Bedrock of American Democracy
The arguments presented in the New York Times Book Review article by Jennifer Szalai, based on Erwin Chemerinsky’s book, are fundamentally flawed in their understanding of the Constitution’s role in American democracy. The Constitution is not an obstacle to democracy; it is its foundation. It provides the necessary framework to balance power, protect minority rights, and adapt to societal changes.
The critiques of originalism, the Constitution’s supposed inflexibility, and the alleged dangers of “Constitution worship” all stem from a misunderstanding of the Constitution’s purpose and history. Originalism, far from being regressive, ensures that changes to the law reflect the will of the people. The Constitution’s resilience and adaptability have allowed it to survive and thrive through centuries of change. Reverence for the Constitution is not about stifling progress; it is about ensuring that progress is achieved through democratic means that respect individual rights and the rule of law.
The Constitution remains the bedrock of American democracy, and it is essential that we continue to defend it against misinterpretations that seek to undermine its role. By upholding the principles enshrined in the Constitution, we safeguard the freedoms and liberties that define the United States. Rather than viewing the Constitution as a danger, we should recognize it as the invaluable protector of our democratic way of life.
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The writer’s reference to “faith in the constitution” unwittingly displays the underlying problem of constitution-worship. Every amendment of the constitution has been achieved in the face of ferocious opposition from those who believe in the Constitution as if it were a holy scripture, rather than a practical working framework which will always need to be updated.
Thank you for your thoughtful and polite comment. You are the first commenter on The Southern Elephant! While I understand your concerns about “constitution-worship,” I see it a bit differently. The Constitution is indeed a living document, but it’s precisely our faith in its principles that allows us to amend and adapt it when necessary. Reverence for the Constitution doesn’t mean resisting change; it means respecting the foundational values that guide those changes. The beauty of the Constitution is in its balance—honoring tradition while allowing for progress. This delicate balance ensures that any updates we make are grounded in the principles that have sustained our nation for centuries.