Jill Lepore on What the Constitution Means to Us

The U.S. Constitution is one of the oldest and most influential documents in the world. It has stood the test of time, but its strength is also its fundamental flaw: Today it’s almost impossible to change.

The older the constitution, “the more people hold [it] with a kind of veneration, especially if [it’s] infrequently amended,” says Jill Lepore, Harvard professor, New Yorker contributor, and author of We the People: A History of the U.S. Constitution (Liveright, September 16). “They become entrenched. Which is great—you want the stability. But it can become a problem. “

Here’s the conundrum: The U.S. Constitution can only be changed by amendment, but the bar for amending it is so high that it has one of the lowest amendment rates in the world. Key parts of it desperately need reforming: Think, for example, of the Electoral College, our antiquated and unrepresentative method of electing a president. But the requirements of Article 5, the Constitution’s roadmap for amending itself, are difficult to achieve in our polarized political climate, so there’s been no successful amendment in decades.

It’s like a tool that no longer works, says Lepore: “I was using a spade as a pry bar the other day, and my wooden handle popped off, and now I have a spade and a stick of wood. It may look like a tool if I put them together alongside of each other, but it doesn’t work.” Moreover, the inability to fundamentally change the government stokes frustration with the entire system:“It is a rule of American history that when amendment becomes impossible, the risk of insurrection rises,” Lepore writes.

Though her subject is dead serious, Lepore’s account is enlivened by wry humor, vivid storytelling, and unforgettable characters who embody the struggles of sustaining democracy. People from all sides of the political spectrum get their stories told, from Liliuokalani, the Hawaiian queen whose kingdom was stolen by the U.S. sugar trust, to Antonin Scalia, the charismatic Supreme Court justice who advanced the doctrine favored by the current court, originalism, which posits that judges can only consider the intent of the framers when they interpret current law. Lepore talked with Kirkus by phone about her new book; our conversation has been edited for length and clarity.

Constitution begins with the phrase “We the people,” but it was written and adopted by property-owning white men: No women, no Black people, no Native Americans had a say in it. It failed to abolish slavery, extend rights to women, or fully recognize the sovereignty of Native nations. Reformers have been trying to rectify that ever since by amending the Constitution, but that hasn’t happened in decades. What’s taken the place of amendment?

There are two ways to change the Constitution. One way is to formally amend it using Article 5, and that’s supposed to be done by the people. The other method, which is not really written into the Constitution but is a widely accepted practice, is that the Supreme Court can interpret the constitution differently—so differently as to give it a different meaning.

And then there’s the current administration’s third way.

What we are witnessing now is a different and unanticipated way of changing the Constitution. With the Trump administration, [their method is] just to declare as a matter of executive fiat that the Constitution means something other than what the courts have understood it to mean on principles such as birthright citizenship or the impoundment issue. You could say there are currently three ways to change the Constitution—the last of which I do not think will last.

You write that the Constitution most frequently gets amended during times of war—the groundbreaking 13th, 14th, and 15th amendments, which abolished slavery and conferred citizenship and equal voting rights, passed during and after the Civil War. In our time, why has it become more difficult to amend?

Over the course of American history, amending the Constitution has endured long periods of drought. We are in one of the longer droughts right now, beginning in 1971, with the 26th amendment, which lowered the voting age to 18. There was a Constitutional amendment ratified in 1992, but that was [to rectify] a kind of bookkeeping error. Nineteen seventy-one was a really long time ago! I mean, Evil Knievel was jumping over cars on his motorcycle in 1971. More concerning to me is that we have stopped holding state constitutional conventions. The last full state constitutional convention was in 1986, and that was Rhode Island.

Why the drought?

I think it’s because people are unwilling to sit in a room together and revise them. There’s not enough trust in process through democratic deliberation. And I don’t trust it at the moment either, because it’s a muscle that Americans don’t have any more. I actually think it would be great to have a constitutional convention, but before that, we need to be able to democratically sit down and deliberate with one another about important matters and agree to abide by the decision of the group.

We now have a Supreme Court that largely embraces originalism. Many Americans support it, but many don’t, fearing that the court’s disregard of decades’ worth of legal precedent will throw the country back to the 1700s when it comes to equal rights and due process.

But there are other ways that jurists and scholars and the public have thought about how to read the Constitution, and those are also worth paying attention to. Why those do not prevail in the court or why they do not prevail in the public mind are questions I try to answer for readers in the book.

You write that amendment is necessary to prevent insurrection, and we actually did have an insurrection on January 6, 2021. How does the inability to pass amendments stoke insurrection?

The political theory behind amendment revision did not come from the framers; it came from the people, who insisted that it be included. This happened first in Massachusetts, where the people rejected a constitution that had no amendment provision. That’s how it ended up in the federal Constitution.

The idea was to write down our fundamental law, but they didn’t want it frozen in time, they wanted to be able to make adjustments and improvements. Without that provision, the only way to fundamentally change the government would be through an insurrection, a coup, to replace the government, to defy the government through violence.

Mary Ann Gwinn is a Pulitzer Prize–winning journalist in Seattle

Home

Jill Lepore on What the Constitution Means to Us