99% Invisible: Constitution Breakdown #8

Episode Title: Constitution Breakdown #8: Jill Lepore
Date: March 27, 2026
Host: Roman Mars
Co-host: Elizabeth Jo
Guest: Jill Lepore (historian, Harvard professor, staff writer at The New Yorker, author of We the People: A History of the U.S. Constitution)

Overview

This episode explores Article 5 of the U.S. Constitution—how (and why) the Constitution was designed to be amended, why formal amendments have become almost impossible, and what this says about U.S. democracy and the Supreme Court. Historian Jill Lepore joins Roman Mars and Elizabeth Jo to unpack the philosophy, history, and modern challenges of constitutional amendment, relying on both her research and her new book.

Key Discussion Points & Insights

1. What is a Constitutional Amendment? (00:57–05:23)

• Definition Expansion: The term "amendment" extends beyond formal changes via Article 5. It encompasses informal "creeping changes" (through practice and judicial interpretation) and even major Supreme Court decisions.

  • Jill Lepore:

    "No matter what your political preference is, people don't like to admit that the Supreme Court is actually often amending the Constitution... you may have a different view of this... But technically the Supreme Court's not supposed to be amending the Constitution." (04:22)

  • Examples: Supreme Court's recognition of presidential immunity, Griswold v. Connecticut (right to privacy) are highlighted as judicial amendments.

• Types of Amendment:

  • Formal (Article 5): Passed and ratified per constitutional process.
  • Informal: Changes by habit, practice, or judicial decisions (de facto amendments).
  • Consequence: Legitimacy of changes often questioned based on whether they're formal or informal.

2. Origins of Article 5: Why Make the Constitution Amendable? (05:23–14:26)

• Historical Context:

  • Early state constitutions demonstrated the need for written, amendable constitutions, ratified by people, crafted by special conventions—not by legislatures.
  • Failed Experiments: Massachusetts rejected a constitution not written by a convention or amendable by the people, forcing a second attempt.
  • The unamendable Articles of Confederation ("Rhode Island was always like, nah, we don't think so... Everyone hated Rhode Island.") proved disastrous, leading to Philadelphia Convention.
  • Roman Mars:

    "It's kind of a pig's breakfast... It's got all these compromises in it and they just sort of guessed about what might be the right bar." (09:49)

• The Logic of Article 5:

  • The double supermajority: 2/3 of both houses of Congress + 3/4 of states.
  • Jill Lepore:

    "It's the Goldilocks problem... They want it to be amendable, but not too easy, because they want the thing to be sort of stable..." (09:57)

  • Practical Outcome: Quickly seen to be far harder to use than intended.

3. How Amendments Are Added: Process and Early Challenges (11:05–14:26)

• Amending via Congress vs. Convention:
  • Two main routes in Article 5, but only the Congressional route has ever been used.
  • Initial ratification of the Constitution only possible with an immediate promise to amend (i.e., The Bill of Rights).
  • "Ratify first, amend later" was the political motto that enabled final adoption.

4. What Counts as Amendment? Supplementalism & the Structure of Change (14:26–19:19)

• Supplementalists vs. Incorporationists:

  • Supplementalists add amendments at the end (current practice), keeping the original text even when modified.
  • Incorporationists wanted "track changes," integrating edits directly.
  • Jill Lepore (re: Tea Party reading of the Constitution):

    "They skipped over like the three fifths clause... It is abolished by the 13th amendment. But because the supplementalists and not the incorporationists won, it's still in there." (17:09)

• Consequences:

  • The original, even flawed, language remains in the text, creating a veneration for the "sacred parchment" and at times, confusion about what is current law.

5. The Untold History: Failed Amendments as National Barometer (19:34–23:29)

• Thousands of Proposals:
  • Over 12,000 proposed amendments; only 27 succeeded.
  • The record of failed amendments archives "the political aspirations of the American people"—what people wanted the Constitution to be, but couldn't achieve.
  • Jill Lepore:

    "A founding idea of our system of constitutionalism is what I call the philosophy of amendment. The idea that the people should be making things better... The Constitution is actually our Constitution. It doesn't belong to the Court." (22:44)

6. Why Make It Amendable? Preventing Violence via Reform (25:53–29:33)

• Amendment as Peaceful Revolution:

  • Framers, haunted by the violence and deprivation of the Revolution, saw peaceful change as genius; amendment was "the great, the genius idea of the American Constitution."
  • Jill Lepore:

    "They were very self conscious and indeed quite self congratulatory about ... peaceful revolution. Amendment was the great, the genius idea of the American Constitution..." (28:21)

• Entrenchment vs. Flexibility:

  • Cycles of history: periods of trying to entrench (Corwin Amendment, keep slavery) versus attempts to make change easier; neither have succeeded.

7. The Deadlock of Article 5: Polarization and the Rise of Judicial Power (31:08–43:10)

• Why Article 5 Became “Frozen”:

  • Early amendments addressed immediate problems; quickly became clear that big issues (slavery, electoral college) couldn't be resolved through amendment due to divided supermajorities.
  • Major amendments pass only in moments of extraordinary political rupture—Bill of Rights, post-Civil War Reconstruction, early 20th-century Progressive era.

• Modern “Death” of Amendment (1971):

  • No new substantial amendments after 1971 except the belated 27th (salary limits).
  • Political polarization makes double supermajority unworkable.
  • Emergence of "originalism"—the philosophy that interpretation must adhere to the original intent of the framers—becomes dominant, especially after being promoted by Robert Bork and the Reagan administration.
  • Jill Lepore:

    "Congress can accomplish absolutely zero. So they're really not going to get 2/3 of both houses to agree to anything... what happens in 1971 is that what comes to be called originalism is born in its modern form..." (37:32)

• Supreme Court’s Role:

  • With Article 5 dead, all eyes turn to the Court.
  • The Court becomes a monarchical power, responsible for all significant constitutional evolution.

8. Originalism: Interpretive Philosophy and Its Consequences (42:31–53:10)

• Critiquing Originalism:

  • Touted as deferential but can lead to radical consequences (e.g., overturning Roe v. Wade).
  • Elizabeth Jo:

    "[Scalia's GPS case] is an absurd premise. Right? The idea that you'd ask that very question." (43:10)

  • Jill Lepore:

    "It is not original. And I would also state with some authority that neither is it history. It really has very little to do with history..." (44:10)

• Genealogy of Originalism:

  • Pre-civil rights, originalism served as an argument to reinforce existing inequalities (Dred Scott, Brown v. Board—segregationists insisted on original intent).
  • Modern originalists claim not to support such outcomes, but the logic recurs.

• Supreme Court as "Last Word":

  • Both liberals and conservatives at times empower or attack the Court’s supremacy depending on who controls it, leading to a whiplash cycle (53:10).

9. Case Study: Senator Birch Bayh—The Last Amendment Hero (56:24–65:27)

• Who was Bayh?

  • Indiana Democrat, led the charge for amendments (25th—presidential succession; 26th—lowering voting age; advanced Equal Rights Amendment).
  • Obsession: abolishing the Electoral College—the most commonly proposed (but never passed) reform.

• Why Did It Fail?

  • Despite overwhelming public support (>80%), NAACP opposition (fearing disenfranchisement of Black voters), and Southern anger at Bayh's opposition to Nixon's segregationist Supreme Court nominees combined to doom it.
  • Political retribution and timing beat big ideas.
  • Jill Lepore:

    "That's why we still have an electoral college. That's the only reason." (63:52)

  • Tragic epilogue: an opponent dies of a heart attack during hearings; the process fizzles, symbolizing the demise of Article 5 activism.

10. Optimism, Legitimacy, and the Future of Amendment (65:53–69:30)

• Performing Hope:
  • Lepore feels a "public duty to perform hope."
  • Even with functional paralysis at the federal level, constitutional change continues at state levels, and in the imagination of younger generations.
  • Sleeping Giants:
    • Youth initiatives like Democracy 2076 and potential state constitutional conventions keep possibilities alive.
    • Calls for periodic reevaluation ("should we hold a constitutional convention?") could re-invigorate debate.
  • Jill Lepore:

    "I think things are stuck until they're not and the Berlin Wall comes down." (69:15)

Notable Moments & Quotes

| Timestamp | Speaker | Quote/Context | |-----------|-----------|----------------------------------------------------| | 04:22 | Lepore | "No matter what your political preference is, people don't like to admit that the Supreme Court is actually often amending the Constitution..." | | 09:57 | Lepore | "[The amendment process] is the Goldilocks problem... They want it to be amendable, but not too easy..." | | 17:09 | Lepore | "...The supplementalists and not the incorporationists won, it is still in there. It's like a record of the thing. It's like version control..." | | 22:44 | Lepore | "The Constitution is actually our Constitution. It doesn't belong to the Court." | | 28:21 | Lepore | "Amendment was the great, the genius idea of the American Constitution..." | | 37:32 | Lepore | "...what happens in 1971 is that what comes to be called originalism is born in its modern form..." | | 44:10 | Lepore | "It is not original. And I would also state with some authority that neither is it history. It really has very little to do with history..." | | 63:52 | Lepore | "That's why we still have an electoral college. That's the only reason." | | 69:15 | Lepore | "I think things are stuck until they're not and the Berlin Wall comes down." |

Structure & Timeline of Content

• 00:50 – 05:23: Introduction, definitions, expansion on types of amendment.
• 05:23 – 14:26: Origins of amendability, state constitutions, Article 5 logic.
• 14:26 – 19:19: How amendments are structured, “supplementalists” vs. “incorporationists”.
• 19:34 – 23:29: The importance of failed amendments.
• 25:53 – 29:33: Peaceful amendment as prevention of violent revolution; entrenchment cycles.
• 31:08 – 43:10: The functional death of Article 5; rising polarization and originalism.
• 42:31 – 53:10: Critique and genealogy of originalism, Supreme Court’s primacy explored.
• 56:24 – 65:27: Birch Bayh’s story, last great efforts for amendment; why the Electoral College endures.
• 65:53 – 69:30: Prospects for hope; future possibilities for amendment.

Final Takeaways

• Amending the U.S. Constitution was designed to be possible, even routine, as a safeguard of democracy—but today, Article 5 is functionally inert.
• Alternatives—Supreme Court rulings, informal amendment—have replaced public, democratic change with judicial supremacy.
• Both the history and the current debates surrounding Article 5 reflect tensions between stability and adaptability in U.S. governance.
• Hope lies in cultural, generational, and state-level ferment—and perhaps renewed civic engagement as America approaches its 250th birthday, despite daunting obstacles.