Day: January 24, 2026

Erwin Chemerinsky—Dean of UC Berkeley School of Law and one of the country’s best-known constitutional law scholars—has a blunt thesis: the United States is facing a crisis of legitimacy and institutional design that could make democratic self-government unsustainable. He lays out that argument in his 2024 book, No Democracy Lasts Forever: How the Constitution Threatens the United States, and in a widely circulated Berkeley Law alumni talk that frames the book as a warning flare for the American system.

That warning has sparked an equally blunt rebuttal from many critics: the United States was never designed to be a “pure democracy” governed by simple majorities. It was designed as a constitutional republic—a representative system constrained by a written constitution—precisely to protect individuals from two perennial dangers: tyranny from above (abuse by rulers) and tyranny from below (majority faction turning politics into legalized coercion).

This debate isn’t an academic parlor game. It’s now moving to a major public stage in New York.

What Chemerinsky argues in No Democracy Lasts Forever

Chemerinsky’s core claim is that American democracy is under severe stress because public confidence in institutions has collapsed and political polarization has hardened into something closer to mutual illegitimacy. In the Berkeley book talk, he argues the crisis is not just cultural—it is structural.

Among the structural issues he highlights:

• The Electoral College: He argues it can produce presidents who lose the national popular vote and that winner-take-all allocation in most states amplifies that risk.
• The U.S. Senate: Equal representation for states regardless of population, he argues, violates democratic intuitions about political equality and entrenches “minority rule.”
• Gerrymandering and representation: He contends partisan map-drawing has made the House less responsive, and that legal constraints limit effective remedies.
• The Supreme Court’s role and tenure: He criticizes life tenure as placing too much power in too few hands for too long, and describes the Court as a central actor in democratic backsliding.
• Money in politics: He argues that the scale and opacity of campaign spending corrodes public trust and democratic legitimacy.

Chemerinsky also proposes remedies—some statutory, some constitutional—and, in the longer arc, suggests Americans should at least begin thinking about what a modern constitutional replacement process might look like (even if not imminent).

The controversy: “Democracy is failing” vs. “A republic with guardrails is the point”

The sharpest disagreement is not whether the country is polarized. It is what standard should be used to evaluate constitutional design.

Chemerinsky often describes the U.S. as a “constitutional democracy” and measures legitimacy against a majoritarian benchmark: outcomes should track popular majorities more consistently, and institutions that systematically distort majority rule are treated as core democratic defects.

Critics respond that this framing smuggles in a premise the Founders explicitly resisted: that “more direct democracy” is inherently better.

1) The Constitution guarantees “republican” government—not direct majoritarian rule.
Article IV, Section 4 requires the United States to guarantee each state a “Republican Form of Government.” Whatever else Americans argue about, the constitutional text chooses “republican” as the baseline civic architecture.

2) Madison’s warning: “pure democracies” can be violent and unstable.
In Federalist No. 10, Madison draws a famous contrast between a republic and what he calls “such democracies,” warning they have historically been “spectacles of turbulence and contention” and incompatible with personal security and the rights of property.

This is a foundational insight for critics: the system was designed not to maximize majority power, but to control the predictable pathologies of majority power.

3) The “two tyrannies” problem: protect society from rulers and from majorities.
Federalist No. 51 states the principle in plain language: it is vital “in a republic” not only to guard society against oppression by its rulers, but also to guard “one part of the society against the injustice of the other part,” because if a majority unites around a common interest, the rights of the minority will be insecure.

This is the conceptual backbone of the “constitutional republic” critique of Chemerinsky: many so-called “anti-democratic” features are better understood as anti-tyrannical guardrails—constraints that prevent elections from becoming a moral permission slip to punish disfavored groups.

4) Courts are not meant to be majoritarian institutions.
Chemerinsky’s critique of judicial power and long tenure often collides with Hamilton’s argument in Federalist No. 78 that life tenure “during good behavior” is a barrier against despotism in a monarchy—and, in a republic, a barrier against “encroachments and oppressions of the representative body.”

In this view, the judiciary’s legitimacy is not measured by popularity; it is measured by fidelity to higher law—especially when popular majorities demand shortcuts.

A key clarification that strengthens the critique

Even many constitutional conservatives concede an important nuance: the Constitution does not literally contain the phrase “constitutional republic.” The more precise claim is that the U.S. is a representative republic operating under a written constitution, and that “democracy” (as used in modern speech) should be understood as representative democracy, not pure direct democracy.

This matters rhetorically. It allows critics to challenge Chemerinsky’s framing without making an easily refutable claim like “America isn’t a democracy at all.” The stronger, more defensible line is: America is not a pure democracy—and it was never intended to be; it is a constitutional republic built to protect liberty against both top-down tyranny and majority faction.

Coming up in NYC: Brennan Center Jorde Symposium, Feb. 5

This dispute over constitutional legitimacy will intersect with an in-person NYU event next month.

On Thursday, February 5, 2026, the Brennan Center for Justice will host the Jorde Symposium: “Against Constitutional Theory” at NYU School of Law (Greenberg Lounge), 40 Washington Square South, New York, NY.
The program runs 4:00–5:50 p.m. ET, followed by a reception 5:50–6:30 p.m.

Erwin Chemerinsky is the featured lecturer. Commentators include Leah Litman (University of Michigan Law School) and Sherif Girgis (University of Notre Dame Law School). The event is open to the public but requires RSVP, and is listed as free.

For anyone tracking the national argument over “democracy,” constitutional limits, and the role of courts, this is one of the most substantive public constitutional law events on the New York calendar—especially because it puts Chemerinsky’s broader book thesis in conversation with scholars who do not share all of his premises.

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