The American Bar Association’s Cornerstones of Democracy Commission, on which I am privileged to serve, encourages the legal profession to lead the way in promoting civics, civility and collaboration—the cornerstones of American democracy—to restore confidence in democratic institutions and the judicial system, and to promote the rule of law.

As we examine the life and legacy of Dr. Martin Luther King Jr., we can see Dr. King employing these three cornerstones of democracy as he challenged our nation to live up to its ideals.

First, Dr. King mastered the initial cornerstone of democracy which is civics. Dr. King had a clear understanding of how the three branches of our government worked, and how the separation of powers provided the necessary checks and balances needed for a diverse, stable and just society.

Dr. King knew that our constitutional democracy had the ability to deliver justice for every citizen. What was lacking was the willingness of those empowered to control our government to have it work for the mutual benefit of all citizens. For that reason, Dr. King met with Presidents Kennedy, Johnson and Nixon, as leaders of the executive branch, to make sure our nation’s civil rights agenda was also a presidential priority.

Dr. King also met with congressional leaders in order to work with them to fashion the 1964 Civil Rights Act, the 1965 Voting Rights Act and the 1968 Fair Housing Act that, in combination, eliminated many of the significant barriers to full and free participation in our society by women, people of color and other underrepresented groups in our nation.

Dr. King also enlisted the third branch of our government, the federal judiciary. With the help of talented lawyers such as future U.S. Supreme Court Justice Thurgood Marshall, Dr. King petitioned our federal courts to strike down laws that denied equal treatment to all citizens.

Dr. King was also very skilled at deploying the second cornerstone of democracy, which is collaboration. While Dr. King was the head of the Southern Christian Leadership Conference, in many respects the SCLC was a loose confederation of churches and other organizations dedicated to ending government sanctioned segregation and discrimination. Many of these other organizations had their own view of how to proceed. Fortunately, Dr. King was able to find the common ground around which all of these distinct groups were able to coalesce and collaborate.

And then there is the third cornerstone of democracy, which is civility. In the face of vicious and false accusations, Dr. King did not respond in kind. He made the conscious decision to remain peaceful in his conduct and in his rhetoric. This decision prevented the messages of the civil rights community from being transformed into shouting matches. Instead, by conducting himself at all times in a respectful and civil manner, Dr. King was able to nullify the vitriol that was directed at him by those who opposed equal treatment for all citizens under the law.

As Dr. King harnessed the power of our cornerstones of democracy to advance a national civil rights movement, I am confident we can attack other social problems using these same tools.

Robust civics education, focused collaboration and intentional civility: These three cornerstones of our democracy can also be marshaled to address other major societal problems. On that list of other major societal problems, I would include the following three areas that need urgent attention.

First is homelessness and the lack of affordable housing. Second is gun violence in our schools, in our places of worship and on the streets of our communities. And third is poverty and the lack of economic opportunity. A renewed emphasis on the three cornerstones of our democracy will allow us to mobilize to address these burdens on our society.

The opening line of our U.S. Constitution begins with the words, “We the people.” For over 200 years, we the people have endeavored to make the promises of our constitution available to all by doing these three things: (1) Making sure each successive generation received the necessary civics education to effectively engage our system of governance; (2) Making sure we understood that by collaborating we could achieve the common good without sacrificing the rights of any group; and (3) At all times remembering our fellow citizens are our neighbors and not our enemies, and therefore we should treat them in a respectful and civil manner.

As we begin this new year, this is a time for action. We have the three cornerstones of democracy available for our use to meet the challenges of our time.

Dr. King showed us how to use these tools to bring about significant positive social change. Now it is our turn to do the same.

Michael E. Flowers is a member of Steptoe & Johnson, where he practices general corporate and commercial real estate law within the law firm’s business law department. He is also the firm’s director of diversity and inclusion. Flowers also is a former chair of the ABA Business Law Section and a former member of the ABA Board of Governors. He currently serves as a member of the ABA Cornerstones of Democracy Commission and as a member of ABA House of Delegates.

ABAJournal.com is accepting queries for original, thoughtful, nonpromotional articles and commentary by unpaid contributors to run in the Your Voice section. Details and submission guidelines are posted at “Your Submissions, Your Voice.”

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

There is a widespread sense that American democracy is in danger. No form of government lasts forever, and it is foolhardy to believe that the United States cannot fall prey to the forces that have ended democracies in many other countries. The problems, to a large extent, stem from the choices made long ago in drafting the Constitution. But the situation has gotten much worse in recent years, in part because of decisions by the U.S. Supreme Court.

I discuss this threat to democracy and ideas for constitutional reforms in my new book, No Democracy Lasts Forever: How the Constitution Threatens the United States, from which this column has drawn.

Confidence in the institutions of American government is at an all-time low. The Pew Research Center has been tracking public trust in government since 1958. It has gone from a high of 77% in 1964 to our contemporary 20%. In a poll in September 2023, only 4% of those surveyed said that the American political system “works well.” Especially individuals in their 20s and 30s are losing faith in democracy. A Brookings Institution study found that “29% of … young Americans say that democracy is not always preferable to other political forms.” Both Congress and the Supreme Court have unprecedented low levels of approval. At the same time, the country is more deeply polarized than it has been since Reconstruction. Few have the sense that the government can deal effectively with crucial issues, such as climate change or income inequality.

Although the causes of the threats to American democracy are complex, many of the problems can be traced back to aspects of the Constitution which are increasingly haunting us. The framers of the Constitution, out a distrust for democracy, wanted elites to choose the president and created the Electoral College. Never in the 20th century did the loser of the popular vote become president because of the Electoral College. But population shifts and partisan realignment have made this a regular occurrence in this century. It happened in 2000 and 2016, and it almost happened in 2004 and 2020. In the last election, if just 42,921 votes had changed in Arizona, Georgia and Wisconsin, Donald Trump would have been reelected president, despite losing the popular election by almost 7 million votes.

To secure approval and ratification of the Constitution, the framers agreed on a compromise where each state would have two senators. When the Constitution was written, the most populous state (Virginia) had 12 times more people than the least populous state (Delaware). According to the 2020 census, the most populous state (California) has 68 times more people than the least populous state (Wyoming). In the last session of Congress, the 50 Democratic senators represented 42 million more people than the 50 Republican senators.

Changes in the rules of the Senate in the 1970s have made filibusters much easier and legislation much more difficult. Now it takes 60 votes to pass any bill other than for the budget. The result is that a minority of senators representing a small fraction of the population can block any legislation. This plays a key role in why it is so difficult to enact federal legislation.

Supreme Court rulings have deflated democracy

And the Supreme Court has made the problems of democracy much worse. In Citizens United v. Federal Election Commission (2010), the court held that corporations can spend unlimited money from their corporate treasuries to get candidates elected or defeated. This has distorted our electoral system and bred cynicism.

In Shelby County v. Holder (2013), the high court declared unconstitutional a crucial provision of the Voting Rights Act of 1965 that required jurisdictions with a history of race discrimination in voting to get preapproval before significant changes in their election systems. This was a very effective mechanism to prevent discrimination in voting. After it was struck down, some states, such as Texas and North Carolina, immediately implemented voting restrictions that had previously been denied approval.

In Rucho v. Common Cause (2019), the Supreme Court said that federal courts cannot hear challenges to partisan gerrymandering. The House of Representatives was intended to be the one body created by the Constitution that was representative of the people. But partisan gerrymandering—where the political party that controls the legislature draws election districts—has become vastly more effective because of sophisticated computer programs and voter data. For example, in Pennsylvania, over several elections, the congressional elections in districts drawn by the Republican legislature resulted in Democrats receiving between 45 percent and 51 percent of the statewide vote, yet only winning 5 of 18 House seats.

All of this combines to create a serious threat to democracy. And these threats will remain regardless of who is elected president in November 2024.

But although the problems are grave, I believe that the situation is not hopeless. It is both possible and essential to cure the defects and save American democracy. There are many meaningful changes that can be done without constitutional amendments. The Senate can change its rules to eliminate the filibuster. Congress, by legislation, can end partisan gerrymandering for seats in the House of Representatives and the Supreme Court can end partisan gerrymandering altogether. The size of the House of Representatives can be increased to make it more democratic. New legislation can be passed to protect voting rights.

Constitutional amendments won’t come easy

Amending the Constitution is enormously difficult, but it’s not impossible. Virtually every flaw in the document can be fixed by constitutional amendment if there is the will to do so. Although amendments have been rare in recent decades, there have been times in American history when they have been more common.

As an example, I believe that a constitutional amendment to impose term limits on Supreme Court justices is possible. When the Constitution was written, average life expectancy was 36 years. From 1787 until 1970, the average tenure of a Supreme Court justice was 15 years. For those appointed since 1970 who have left the bench, the average tenure has been 26 years. Many of the current justices are likely to serve more than 30 years. That is too much power in one person’s hands for too long a period of time.

But I believe that term limits for Supreme Court justices, and certainly ones that would apply to the current justices, would require a constitutional amendment. It always has been understood that a Supreme Court justice has the position for life, unless the justice resigns or is impeached and removed. That is what Article III, Section 1 says: “The judges, both of the supreme and inferior courts, shall hold their offices during good behaviour.”

There are some theories to the contrary. One is that Congress, by statute, could keep them as “justices” in the sense that they would retain their title and salary and could sit on courts of appeals and fill in when a justice is recused. But then they are not functioning as a justice in the way it always has been understood. They are a Supreme Court justice in name only.

A constitutional amendment to impose term limits is plausible because it has had bipartisan support. In the 2016 Republican presidential primaries, three candidates—Ben Carson, Rick Perry, and Mike Huckabee—supported term limits for justices. In opinion polls, a significant majority of the American people favor this.

There also is an alternative to a spate of separate amendments: After 200 years, it is time to begin thinking of drafting a new Constitution to create a more effective, more democratic government. It does not take much reflection to see the absurdity of using a document written for a small, poor and relatively inconsequential nation in the late 18th century to govern a large country of immense wealth in the technological world of the 21st century.

It may seem strange and frightening to suggest thinking of a new Constitution at a time of great partisan division. But that existed in 1787; the Constitution was just barely ratified in many of the states. The hope would be that those involved in the process would again rise to the occasion and in any event, their product would still need to be ratified.

I do not minimize the difficulty of significant change in any of these ways. But we must face the frightening reality of the country’s future if there are not major reforms. My hope is that looking at that abyss will be the impetus for beginning to realize the need for action and start the long-term process of making it happen.

Erwin Chemerinsky is dean of the University of California at Berkeley School of Law. He is an expert in constitutional law, federal practice, civil rights and civil liberties, and appellate litigation. He’s also the author of many books, including the forthcoming No Democracy Lasts Forever: How the Constitution Threatens the United States (August 2024) and A Court Divided: October Term 2023 (October 2024).

This column reflects the opinions of the author and not necessarily the views of the ABA Journal—or the American Bar Association.

1. Home
2. The Modern Law Library
3. Yale Law’s Owen Fiss talks about threats…

The Modern Law Library

Yale Law’s Owen Fiss talks about threats to democracy and ‘Why We Vote’

By Lee Rawles

January 31, 2024, 8:47 am CST

After 50 years as a professor at Yale Law School, Owen Fiss says his students are still idealistic and passionate about the rights won in the Civil Rights Act of 1964 and Voting Rights Act of 1965.

As a young lawyer in the late 1960s, Fiss worked with the Department of Justice to implement those laws. A classroom discussion in spring 2020 prompted him to draw upon his legal expertise and decades of experience to produce Why We Vote, his new book.

In this episode of The Modern Law Library podcast, Fiss speaks with the ABA Journal’s Lee Rawles about the paradox of the court system—the least democratic branch of government—having the responsibility of safeguarding the right to vote.

He looks back on his work with the DOJ in southern states and his time as a clerk for then-U.S. Supreme Court Justice Thurgood Marshall (then on the 2nd U.S. Circuit Court of Appeals in New York) and then-Justice William J. Brennan Jr.

Rawles and Fiss also discuss recent threats to the electoral system and the right to vote, including the insurrection at the U.S. Capitol on Jan. 6, 2021. Fiss shares his thoughts about Section 3 of the 14th Amendment and whether former President Donald Trump should be removed from the ballot on that basis.

While every book that he writes is for his students, Fiss says, he hopes Why We Vote can impress upon a broader audience the privilege and duty of voting and participating in a democracy.

In This Podcast:

Owen Fiss

Owen Fiss is a Sterling professor emeritus of law and professorial lecturer in law at Yale University. He was educated at Dartmouth College, Oxford University and Harvard University. He clerked for then-U.S. Supreme Court Justice Thurgood Marshall (when Marshall was a judge on the 2nd U.S. Circuit Court of Appeals in New York) and later for then-Justice William J. Brennan Jr. Fiss also worked in the Civil Rights Division at the Department of Justice from 1966 to 1968. Before coming to Yale, Fiss taught at the University of Chicago. Fiss is the author of many articles and books, including The Civil Rights Injunction, Troubled Beginnings of the Modern State, The Structure of Procedure (with Robert Cover), and Liberalism Divided: Freedom of Speech and the Many Uses of State Power. His most recent book is Why We Vote.