Some books about the U.S. Constitution insist that we have strayed too far from our political origins and must recommit to ancient ways. Others argue that a constitution itself must adapt or be rewritten when social, economic, or technological advances have rendered it archaic. All such literature can be mapped along a spectrum, from the worshipful to the diagnostic. Whereas books in the liturgical mold tend to treat the 1787 Constitution and American civic culture as a tidy, closed system whose doctrines must be ritually performed and periodically purified, those in the diagnostic vein see the tradition as pluralistic and contested. More important for a country where record numbers of citizens now feel that politics is futile, the approaches also differ in their attitudes toward popular sovereignty. Commentators working in the devotional genre seek to cultivate a nostalgic people who celebrate past democratic achievements but fear the next great mobilization. By contrast, those who yearn for a more experimental politics insist that only an empowered citizenry can transcend a sclerotic legal order and improve material conditions for a greater swath of the populace.

A new book by Yuval Levin, American Covenant, is emblematic of the devotional approach. The title, which invites readers to understand the Constitution as a blessed event, implies that the text should be revered. Levin, a senior fellow at the American Enterprise Institute and founding editor of National Affairs, forthrightly describes his objective of preserving “the best of the inheritance of our civilization,” and he extols “veneration” of the Constitution because it makes “stability…and greater unity possible.” All of this suggests that the people’s orientation toward the document, even if they played no part in its creation, should be like that of Abraham’s descendants—gratitude and blind obedience—rather than skeptical reflection.

Because Levin’s project is largely devotional rather than diagnostic, his anger is reserved for those who have criticized the genius of the 1787 Constitution, our “great charter of unity.” (“Unity,” he clarifies, “does not mean thinking alike; unity means acting together.”) The book treats political and economic movements that question the basic precepts of the original Constitution—specific ideas such as “the core logic of the federalist compromise,” or the broader values of negotiation and accommodation—as deviant ideologies eroding our legal order. Repeatedly, Levin assails progressivism, Woodrow Wilson, and the center-left consensus that developed from the late 1930s to the late ’60s, which he believes has “weakened the capacity of the Constitution to unify us.” He castigates certain political reforms, such as party primaries and caucuses, for violating the “logic of American partisanship,” pushing politics “in a demagogic direction,” and increasing the risk of social fracture. Instead, he prefers the older system with its “meaningful party conventions and behind-the-scenes candidate selection.” Here and elsewhere, Levin’s brand of civic republicanism replicates ancient biases against democracy; he describes the democratization of presidential politics since the 1970s derisively as parties “handing off their most important function to mass electorates.” More troublingly, in a chapter on federalism, he insists, rather vaguely, that “There is also a growing need for Congress to revisit the aims of the civil rights laws” enacted during the latter half of the twentieth century.

Beyond the framing of the 1787 Constitution, history rarely appears in Levin’s account. When it does, he consistently takes a “consensus” approach, asserting a single dominant interpretation according to which fundamental questions are settled once and for all rather than remaining contested over time. He flattens the tumultuous period of Reconstruction and the complicated objective of the three post-Civil War amendments—to foster the emergence of multiracial democracy—into a simple principle: “limiting the power of majorities in our democracy for the protection of minorities.” But the statesmen who drafted those amendments fundamentally recast the 1787 Constitution through extraordinary, intensely partisan and public-spirited actions, including military occupation of the South, experimental bureaucracies such as the Freedmen’s Bureau, and wresting control over Reconstruction away from a President who had hoped to swiftly reintegrate defeated secessionists into the Union—hardly the sort of accommodation Levin extols.

There is one notable place where Levin criticizes the Framers. He correctly observes that the Constitution made no mention of political parties or a two-party system because its authors, especially Madison, believed that parties represented the threat of faction he and others so deeply feared. Yet this was a “blind spot,” Levin tells us, and then proceeds to defend the role of national parties in a way that would surely have appalled many members of the founding generation. Surprisingly, he turns to George Washington to help make his case, flipping Washington’s famous 1796 farewell address on its head. Instead of a damning indictment of partisanship and sectionalism, Levin claims that Washington offered a “subtle argument” that “parties contained in a particular way could serve the cause of liberty.” But in that speech, Washington sounded like an exasperated public official, not a cheerleader for a dawning age dominated by national parties. Before the passage cited by Levin, Washington went on for multiple paragraphs listing the evils of partisanship:

It serves always to distract the public councils and enfeeble the public administration. It agitates the community with ill-founded jealousies and false alarms; kindles the animosity of one part against another; foments occasionally riot and insurrection. It opens the door to foreign influence and corruption, which find a facilitated access to the government itself through the channels of party passions.

Because parties represent a “constant danger of excess,” Washington warned, they are “a spirit not to be encouraged.” When he referred to “the spirit of party” as “a fire not to be quenched,” he was more likely expressing doubt that parties’ inherent power to divide society could be eliminated than kneecapping his own call for “uniform vigilance” of parties.

Levin praises partisanship for protecting liberty and creating “a sharper set of distinctions between the parties,” and he opposes reforms that would make the system resemble parliamentary systems in other countries. Yet he makes no mention of how the dominance of two national parties has been a major source of alienation for the citizenry. It drastically narrows the range of issues discussed, often selecting symbolic ones rather than pressing matters that concern the material condition of the people. The two parties can take bland and overlapping positions on certain issues, as they often do on criminal justice and national security, where moral clarity can incur a steep electoral price. And Levin fails to admit that a two-party system also submerges good ideas, squanders talent, elevates loyalists, and, as the parties’ hierarchies calcify, increases the risk of gerontocracy.

Levin also makes no effort to grapple with the danger that the apparatus and reputation of a strong national party might be captured by demagogues or social movements advancing extremist policies, whereas multiparty systems, such as that of France, force ideologues to work more openly to acquire governing power. His justification of the two-party system mirrors his defense of the free market elsewhere: He praises the former for abiding by an “ethos of competition,” and he is suspicious of solidarity that forms among citizens, preferring attachments to the polity itself through shared civic virtues. As the legal scholar Aziz Rana reminds us, such arguments were regular features of Cold War portrayals of the U.S. Constitution.

One of Levin’s most illuminating discussions is about ranked-choice voting, which he supports for primaries in order to promote debate within parties. He argues correctly that ranked-choice voting allows relative preferences to be more accurately expressed, and that doing so may invite a “coalition-building mind-set.” But he does not endorse ranked-choice voting for general elections because it “would tend to undermine the parties.” Of course, what tends to make a two-party system less stable would also enhance competition as parties once again rise, fall, and realign with more regularity—as well as facilitate a broader range of coalitions. But Levin ignores these potential benefits because he is more comfortable with two parties dictating national politics.

How well does Levin diagnose the country’s precarious condition? Not very well. While he recognizes congressional dysfunction and the concentration of executive power, his primary error lies in reflexively treating the people’s desire to redraw the rules of politics to overcome institutional malfunction as a constitutional betrayal. The civic virtues he elaborates—unity, negotiation, accommodation—are laudable, but they need not be extrapolated from a romanticized view of the Constitution’s framing. Shorn from the politics of restoration, such virtues can be urged purely as matters of good government.

A deeper problem is that he treats popular movements, even successful ones, as little more than the pursuit of narrow interests, and certainly not as evidence that the legal order itself might be fundamentally defective. Levin blames “progressivism” for social fracture, lambasting reformers (twentieth-century progressives as well as contemporary ones) for undermining federalism and endorsing technocracy, as well as being “deeply impatient with Congress” and rejecting “the theory of political life implicit in the design of the institution.” He also contends that reforms in the states meant to enhance the popular accountability of government officials, such as initiative and referendum processes and making judges elected and subject to recall, have produced “sorry effects.” This highly selective singling out of progressivism for criticism is curious; after all, unhappiness with legislative gridlock spans the ideological spectrum. It’s striking for another reason, too: It reflects a lack of awareness that people’s movements are born out of the genuine sentiment that an existing legal regime is unjust. It also fails to consider other plentiful causes of discontent beyond lack of respect for ancient ideals, such as widening material inequality, the impossibility of building intergenerational wealth, concentrated economic power, and the overpolicing of minority neighborhoods. These unhappy experiences have given rise to legitimate grievances. Levin’s remedy is to encourage political losers to adopt a better attitude and work harder to accommodate their adversaries.

For the most part, American Covenant amounts to a defense of the status quo, shaped by the overarching goal of “restoring the Constitution’s capacity to bring us together.” The book will surely resonate with those already engaged in the politics of veneration and those who long for a mythical vision of rule by consensus, but it is unlikely to persuade those who see constitutional law as a struggle over power and meaning, and an ever-present obstacle to effective policymaking.

If an account of the Constitution steeped in devotion obscures that document’s pathologies in structure and practice, one grounded in realism can open citizens’ eyes to the serious costs of doing nothing. Erwin Chemerinsky, the dean of Berkeley Law School, who has argued before the Supreme Court, is a longtime proponent of legal liberalism and living constitutionalism, especially as expressed in the rulings of the Warren Court. In his latest book, No Democracy Lasts Forever, he urges his fellow citizens to demand a constitutional convention. He calls the work, his most reformist to date, an “uncomfortable” book to write “that I want to be wrong.” In lively prose, Chemerinsky argues that the Constitution “had serious flaws from the outset as a result of compromises that were made” at the 1787 convention, and that other changes since the 1970s—such as demographic and migratory shifts that have worsened malapportionment and the “unprecedented” involvement of the Supreme Court in the political process—have “made the Constitution a threat to democracy as never before.” Joining other reformers, he now recognizes that “[O]ur reverence for the Constitution has kept us from seeing how much it has become the root of the problem.” Even so, his book raises questions regarding how much faith one should have in fellow citizens and how specific a new constitution should be.

Chemerinsky begins with a warning that Americans have become too alienated from government. He points to polls showing that only 20 percent of Americans trust their government, down from a high of 77 percent in 1964. Approval of the Supreme Court has similarly dipped precipitously. If Levin’s solution is to exhort citizens to stop “degradation of our regard for and confidence in” government, Chemerinsky contends that structural solutions are key to reawakening Americans’ belief in their capacity to govern themselves.

Most of Chemerinsky’s prescriptions can be accomplished without explicitly changing the Constitution, but toward the end of the book he presents a proposal for carrying out a new constitutional convention. Chemerinsky advocates following the rules of Article V to initiate debate over amending the Constitution, which requires the assent of either two-thirds of both houses of Congress or two-thirds of state legislatures. After delegates to a convention draft a new constitution, he recommends changing the rules for ratification (which currently call for the support of three-quarters of the state legislatures or state conventions) so that it could be approved through a national vote. Proponents of changing the rules midstream in this way can invoke the precedent set by the Framers themselves, who departed from the unanimity requirement of the Articles of Confederation in the 1780s to rewrite that constitution from scratch. However, Chemerinsky errs when he advocates only a simple majority vote for ratification of a new constitution: That is a low bar that would surely undermine the claim of popular sovereignty that is necessary to underwrite a complete overhaul of an existing constitution and justify rule-breaking to do so. By contrast, a supermajority threshold would ensure that deep and broad support exists for such dramatic changes. It would also make it harder for wealthy interests to capture the process and entrench oligarchic priorities—a problem we occasionally see with mechanisms for initiatives and referenda in the states.

Chemerinsky endorses a slice of structural changes that often appear on the wish lists of scholars focused on reform: abolish the Electoral College, establish term limits for all federal judges, end partisan gerrymandering and the filibuster, enlarge the House, and allocate senators based on population. Democracy’s online constitutional convention experiment in 2021 produced a draft constitution containing an array of changes (including many of these) that would codify the nation’s transition from agrarian republic to pluralist democracy. It is well worth reviewing in conjunction with No Democracy Lasts Forever. (I should note that I participated as a “delegate” in the Democracy project.)

At times, the solutions Chemerinsky offers do not seem to match the scale of the problems he identifies. For instance, while he argues that the 1787 Constitution’s rotten compromises over slavery are responsible for policies that have caused intergenerational racial inequality, he stops short of offering any fixes beyond overturning a series of cases in which the Supreme Court has required proof of “discriminatory intent” before a court can enforce the Equal Protection Clause. (This jurisprudential requirement, not obvious from the language of the Fourteenth Amendment, drastically narrows the range of inequities courts can address. For instance, major racial disparities in the enforcement of criminal laws, including the imposition of capital punishment, cannot be remedied if there is no proof that policymakers or law enforcement intended to disadvantage racial minorities or the poor.)

Chemerinsky is certainly right that “No easy path exists to create racial justice.” It’s also true that a precise mix of policies that would do some good may be too intricate and sensitive to entrench in a constitution. At the same time, it would be a shame to squander the opportunity to commit to a multiracial democracy and have it legitimated by a diverse citizenry for the first time. South Africa’s post-apartheid constitution serves as a potential model: It says that the people “recognise the injustices of our past” and “honour those who suffered for justice and freedom.” Unlike the U.S. Constitution, it also explicitly commits to “heal[ing] the divisions of the past and establish[ing] a society based on democratic values, social justice and fundamental human rights.”

Chemerinsky favors limiting a constitutional convention to delegates selected by party leaders—an approach that, if derided as elitist, could compound the risk of low turnout and popular rejection of a new constitution. It would be exceedingly easy for opponents to mobilize against a constitution authored by the few behind closed doors in a society where the rhetoric of popular sovereignty and demands for transparency remain potent. To guard against this risk, one needn’t go as far as Colombia, which barred current members of its Congress from serving as delegates to the country’s constitutional assembly in 1991. But it would be important to widen participation while ensuring that the constitution-writing process doesn’t degenerate into an exercise in partisan entrenchment and special-interest gift giving. Especially when the call for a constitutional overhaul is intended to broaden participatory democracy, electing some of the delegates and employing other mechanisms to generate ideas—such as citizen working groups or assemblies—have been essential in other countries for generating popular support for a modern constitution while countering charges of oligarchy and technocracy. This is especially important in countries like the United States that have long and painful histories of political exclusion.

We learn even more about the two authors’ concepts of democracy when we juxtapose their views on the role of courts. Let’s start with where they differ. Levin proposes zero reforms to the federal judiciary; he merely expresses qualms about how liberal justices have exercised the power of judicial review. Otherwise, he insists that the Supreme Court is indispensable “to form and sustain national cohesion.” Levin observes that originalism in its earliest form was justified as a kind of judicial restraint, yet he underplays the fact that more aggressive versions of originalism, such as that favored by Justice Clarence Thomas, facilitate judicial activism to roll back settled understandings of powers and rights—and in the process subvert original expectations that the Court would be “the least dangerous branch.” What Levin proposes—“judicial republicanism,” which “would have a great deal in common with contemporary originalism”—could license judges to impose their own peculiar notion of civic republicanism in pursuit of partisan objectives or to erase hard-won democratic gains. We have already learned how justices can deploy history and tradition to restrict or eliminate cherished rights or to expand them beyond reason—and how they ignore history entirely when they wish.

For his part, Chemerinsky recognizes that an already counter-majoritarian institution has “further undermined democracy” through regressive rulings. Levin erroneously asserts that the Fourteenth Amendment empowered Congress to protect Black Americans from discrimination but that “Congress never did so,” while Chemerinsky notes that Congress repeatedly invoked its new legislative powers to pass civil rights bills, but that the Supreme Court has put a stranglehold on that authority. Closer to our time, Chemerinsky lambasts the justices for recent decisions striking down campaign finance laws, barring federal courts from giving relief to gerrymandering claims, and “gutting the Voting Rights Act” through both substantive rulings and new procedural limits on remedies. And in its latest term, the Supreme Court did more of the same. It overturned, along partisan lines, long-standing precedent requiring judges to defer to agency rules when a statute is ambiguous and expanded immunity rules to shield former presidents from criminal prosecution for “official acts.”

Given Chemerinsky’s admirable recognition of the Supreme Court as a danger to self-government for the foreseeable future, it will be disappointing to many democratic reformers that he still believes in a Court “that is largely insulated from majoritarian politics.” Yet how can a healthy democracy coexist with an overactive legal system? Chemerinsky’s long list of criticisms makes an excellent case for downsizing the institution so that other political actors are no longer acting in the shadow of federal judges, but he hesitates to embrace the full significance of the history he invokes. In fact, when he argues that the Electoral College violates the modern principle of “one-person, one-vote” and that “courts thus can and should declare” it unconstitutional under the principle of equality, Chemerinsky reveals how committed he is to expansive judicial review. Due to the ideological makeup of the Court, he doesn’t think the Electoral College is likely to be struck down, but nowhere does he recognize just how intrusive a conception of judicial power would have to be to permit that to occur.

In short, there is no reason to believe that the Supreme Court would suddenly become chastened under either author’s vision. The only court reform Chemerinsky endorses is term limits. Why stop there, especially if a wholesale reconsideration of the Constitution were on the table? Chemerinsky makes a pragmatic assessment that term limits might be acceptable on a bipartisan basis. A similar calculation seems to be at work in his cursory rejection of another democracy-enhancing proposal: ending neocolonial practices by granting statehood to residents of Puerto Rico and the District of Columbia. But Chemerinsky may be underestimating the reformist energies that could be unleashed, as well as Americans’ actual appetite for democratic change once an Article V convention becomes a reality. The time will come for horse trading—practical politics inevitably shapes design choices—but it’s far better at this point to dream bigger than it is to preemptively short-circuit the political imagination.

Beyond the lower-hanging fruit endorsed by Chemerinsky, other potential ideas for judicial reform include a mandatory retirement age for judges, requiring a supermajority vote before a federal law can be invalidated, reducing the capacity of a single judge to issue a nationwide injunction, altering the federal courts’ jurisdiction, capping the number of justices that a President may appoint in a single term, expanding the size of the Supreme Court so that it is harder for oligarchs or authoritarian movements to corrupt or capture it, and affording citizens a way to overturn a Supreme Court decision or propose constitutional amendments by national referendum. Some combination of these proposals would better cut an institution that has gotten far too used to making policy for the country back down to size.

Americans live in a straitjacket not entirely of their own making. Getting out of it will take recognizing that they possess the power to free themselves. Chemerinsky ends his bracing book with a warning: Democracies that polarize and backslide as the United States is doing can find themselves on the road to secession. I’ve written about how movements within this country have been stockpiling weapons for years and making plans for the world to come should Americans break up with one another. Those of us who want our political experiment to continue would do well to join the conversation about how to renew our civic culture, commit to democracy more fervently than our forebears ever did, and come up with even better ideas to make government work again for the people.