The Central Flaw That Is Killing American Democracy

A man is taken into custody in Chicago after what he thought was a routine immigration check.

I want to start this week talking about two people: Joni Ernst and Erwin Chemerinsky.

Ernst is the junior Senator from Iowa who told a town hall last weekend that “everybody dies.” Which is true. But the people at the town hall were complaining about cuts to Medicaid, which means people they know and love will die sooner than they would if they didn’t get health care.

Like, maybe even as children.

So her answer, and the sarcastic video of her walking through a cemetery she posted the next day, reads to people with a moral compass as incredibly callous.

Erwin Chemerinsky is the dean of Berkeley Law School.

He is not callous. He is a nice man who is probably the foremost constitutional scholar in the U.S.

He wrote a book last year entitled, “No Democracy Lasts Forever.”

In other words, democracies die. And - this highly esteemed constitutional scholar implies - this democracy might not make it.

When I read Chemerinksy’s short and highly readable book back in September, I felt strangely validated at the ills he diagnosed as perhaps deadly for the U.S. system of government. The ticking time bombs planted in the Constitution that are exploding in Trump’s America. Or Peter Thiel’s America. Or Stephen Miller’s America.

I don’t want democracy to die. Neither does Chemerinsky. But, he notes, “it is crucial for Americans today to recognize [that] choices made in 1787 are directly responsible for our crisis of democracy” today.

First, slavery - predicated on the idea that some groups of people are better than others; or some groups of people are more human than others - was baked into the Constitution. Until the 13th Amendment. Which conveniently created an exception for people who broke the law, and could therefore be imprisoned.

Since slave owners and other prominent citizens already saw runaway slaves as outlaws, and since slave hunting patrollers were already an existent force, that exception seemed ready made to define Black people as outlaws, and slave hunters as police.

Second, the founders did not trust direct democracy. There’s that notion, again, that some people are better than others, and we have to keep the rabble from gaining too much power.

So we got the Great Compromise, which enshrined into the Constitution that each state had to have two Senators, regardless of population.

From that came the Electoral College to elect the president, which was based on the number of House members from each state, plus each state’s two Senators. This method at first favored slave states with larger populations, in which 3/5s of the slave population could be counted, even though none of them could vote. This would be fine now if the College had been updated as the country grew, as Black people and women were given the vote, and as populations in states shifted.

But the number of House members was capped at 435 in 1929. So California, which currently has almost 40 million people, has 52 House members and two Senators, resulting in 54 Electoral College Votes, with one Elector representing roughly 740,000 people.

Next door, Nevada has four House members and two Senators for a population of roughly 3 million. So, six Electors, each of whom represent roughly 500,000 people.

South Dakota has a bit less than a million people, which we’ll round up for our purposes. They have one House member and two Senators, which adds up to three Electoral College Electors, who represent roughly 330,000 people each.

So, South Dakota has less than twice the number of people represented by one Elector than California.

Which totally invalidates the whole one person, one vote idea. South Dakota gets almost 2 1/2 votes per person compared to California.

Third, the framers crafted the First Amendment with the idea that “speech” meant standing in the town square yelling, “Here ye, here ye!” Or printing pamphlets that could be passed around, and argued about in public houses.

The idea was that even “bad” speech could be countered by “good” speech. By healthy debate. Among people.

At no time did the framers envision an unhealthy debate among algorithms. Which has turned our discourse into tribalized factions whose anger can be turned up or down like a fire on a gas stove.

Chemerinsky was giving us a warning. We are on life support. Pay attention.

It didn’t occur to me back in the fall, when I first read “No Democracy Lasts Forever” that if this democracy died, people would, too.

Joni Ernst brought that home.

Finally.

I finally felt it in my bones after years of watching the fascist party that used to be Republican very much seeming to want democracy - and people - to die.

The “right kind” of people.

Then they will dance on our graves.

Please share widely

It seems to me that the fundamental tension in our nation’s founding lives on in our country today. In our world today. It’s a tension born of colonialism.

Does every human inherently have equal capacity and rights to the pursuit of happiness as every other human? Or are some people better than others?

That tension is what the algorithms eat up.

And the answer is that far too many of us think the latter.

Growing up a Jew in post-WWII America, I was exposed to both of these ideas.

I vividly remember sitting in the old Temple Beth Shalom (Las Vegas’ only temple at the time) when I was 12. It was Rosh Hashanah, the Jewish New Year, the first of the High Holidays. The Rabbi or Cantor was urging us to support Israel, and at some point said that our Judaism was tied to Israel.

My mother was sitting to my left, and her reaction was quick and visceral. “No,” she said, almost as if she couldn’t help herself.

She looked at me. “My Judaism is not connected to another country. That’s nationalism, not religion.”

I had no idea my mother felt that way. And I felt both privileged to be let into her point of view and validated, because it didn’t make any sense to me either.

Israel, like the U.S., came from colonialism. And, like the U.S., it has to deal with some basic original sins.

One of those original sins is the idea that some people are better than others.

That is what defines the rift among Jews in this moment.

There are plenty of people in Israel, like Dr. Elana Sztokman, who believe that Jews and Palestinians are equal. And there are plenty of Jews in Israel who think Gazans should be annihilated.

They do not see the irony that right now, Gaza is being annihilated in much the same way many Jews were in the 1940s. Starvation is a powerful weapon.

The same holds true for the U.S. There are far too many people who disagree with my mother and me, who think Israel is essential to our Jewishness, and who feel like some people are better than others.

Be part of the conversation

One of the central tenets to both my humanity and my Judaism is the post-Holocaust lesson that when one group is oppressed, we are all oppressed. And that it is our duty to fight oppression, not support it.

One of the examples I used to give about what antisemitism looks like is a thought experiment on a public menorah lighting ushering in Chanukah. When my girls were little, we participated in many of these. In the town square in Flossmoor, Illinois, we stood with our neighbors as one of the pine trees was lit with lights, and a giant electric menorah and kinara were turned on.

We cheered.

In Vegas, we mostly had our public menorah lighting events in outdoor shopping malls.

But we still cheered when the lights were turned on.

What if, I wondered, people showed up at one of these public Chanukah celebrations and started chanting anti-Israel or pro-Palestinian slogans. I could see that happening. And, of course, it would be antisemitic - this idea that to be Jewish is to be held responsible for the decisions of a right-wing government in another country.

Then the massacre happened on October 7, 2023, and suddenly Jewish people I knew started conflating being Jewish with the government of another country.

Which is exactly the example I have used to show what antisemitism looks like.

I don’t support Netanyahu’s government any more than I support Viktor Orban’s government, any more than I support Trump.

And I know, as Rabbi Sharon Brous said on MSNBC the other day, that “a majority of American Jews” believe in “a just future for both peoples” in the land that Jews and Palestinians share - thanks to Arthur Balfour.

I will tell you, though, that the American Jews who don’t believe in a future for both peoples have far more memes that the rest of us.

Memes that are triggered and shared by the algorithms that have replaced the pamphlets and public houses. Algorithms that prey on any hint in one’s social media that there is some deep-seeded belief that some people are better than others.

Which, of course, ends up triggering those of us who don’t believe that. And we fight.

I want the annihilation of Gaza to stop. I want a Palestinian homeland to live alongside Israel.

But I also want public outrage from every institution in the U.S. - including Jewish institutions like the Anti-Defamation League - at masked federal agents walking into restaurants and arresting employees because they have brown skin and Mexican accents and perhaps forgot their ID that day.

I wanted every Jewish leader in LA to join the protests this weekend, to decry the federalizing of the national guard, to say that when one group is oppressed, we are all oppressed.

I am sick about the man who tried to torch Jewish people in Colorado who were marching for the release of hostages being held in Gaza. I am sick about the murder of Sarah Milgrim and Yaronn Lischinsky outside an event dedicated to raising money for peace in the Middle East.

I am sick about the murder of 6-year-old Wadee Alfayoumi.

I am sick that three students of Palestinian descent were shot in Vermont because they were wearing Keffiyehs.

And even more sick when I see on a Jewish women’s Facebook page a meme saying that Keffiyehs are antisemitic.

And dangerous.

But I’m really sick of the people who think that some people are better than others winning the argument.

We all need to stand up. White, Black, Brown, Jewish, Palestinian, Muslim, Sikh, powerful, working class. We all need to look at each other and address this central question: Do you believe some of us are better than others. And why?

I feel like until we get this resolved we are not going to resolve the atrocities that come out of it.

Are some of us better than others? Or do we believe in the capacity of all humans?

This is the central tension upon which our democracies will live or die.

What’s your answer?

OK, now that that’s out of my system, I need to let everyone know that I will not be posting next week. Both of my daughters are graduating from college. And I’m taking the week off to focus on them.

Please support this work. Subscribe and/or give a gift subscription
to those you think would also like it.

Or buy me a coffee at the place I do most of my writing, Grouchy John’s in Las Vegas.

Lastly, Timothy Snyder shared some of his brother-in-law’s (composer Dan Shore’s) work. This is perfect.