The Real Enemies of Democracy

26 Pages Posted: 29 Jun 2021

See all articles by William Baude

William Baude

University of Chicago - Law School

Date Written: June 17, 2021

Abstract

The Constitution is undemocratic and the Supreme Court is not helping. That is Professor Karlan’s sobering assessment in "The New Counter-majoritarian Difficulty." The structural problems include the non-majoritarian effects of the Senate and the Electoral College, combined with the demographics and polarization of the American electorate. The doctrinal problems include the Supreme Court’s failing to intervene against voter-identification legislation or partisan gerrymandering while at the same time having the temerity to invalidate part of the Voting Rights Act.

I don’t exactly disagree. The Constitution is flawed and hard to amend, and the Supreme Court is not going to fix it. But I would urge some perspective. It isn’t the Supreme Court’s job to fix the Constitution, it is ours, and we will get to it as best we can.

More fundamentally, however, I worry that democracy faces far worse enemies than the Senate, the Electoral College, or the Supreme Court. Those enemies are the ones who resist the peaceful transfer of power, or subvert the hard wired law of succession in office. The shield against them may be more formalism, not less. So we destabilize our current imperfect arrangements at our own peril.

Keywords: Democracy, Constitution, Election, Counter-majoritarian, Senate, Electoral College, Treason, Big Lie

Suggested Citation

Baude, William, The Real Enemies of Democracy (June 17, 2021). California Law Review, Vol. 109, 2021, Available at SSRN: https://ssrn.com/abstract=3868601

William Baude (Contact Author)

University of Chicago - Law School ( email )

1111 E. 60th St.
Chicago, IL 60637
United States

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