American History Hit – "How to Amend the Constitution"

Host: Don Wildman
Guest: Jill Lepore, Harvard historian, author of We the People
Date: September 8, 2025

Episode Overview

In this episode, Don Wildman explores the principles and challenges involved in amending the U.S. Constitution, joined by renowned historian Jill Lepore. Together, they delve into the origins and philosophy of constitutional amendment, why amendment has become nearly impossible today, the history of successful and failed amendments, and the wider implications for American democracy. Timed to the release of Lepore’s book and the impending 250th anniversaries of the Declaration of Independence and Constitution, this conversation illuminates how America’s foundational document was engineered both for permanence and change—and why that balance is under threat.

Key Discussion Points & Insights

The Philosophy and Origins of Constitutional Amendment

• Setting the Scene (01:34)
  Wildman describes the summer of 1789, where James Madison stands to propose what would become the Bill of Rights, reflecting the demand for explicit individual protections.

  “He stands to amend it. The Constitution is barely a year old, but critics... have pressed for more explicit individual protections. They want a Bill of Rights.”—Don Wildman (01:34)

• The Written Constitution as an 18th-Century Invention (05:11)
  Lepore discusses that constitutions weren’t always written; recording law was an Enlightenment idea for stability and transparency.

  “Fundamental law was generally unwritten and it’s really an 18th century invention. ...But then what do you do when you need to change it? So fundamental to written constitutionalism as it was designed in the United States is what I call the philosophy of amendment.”—Jill Lepore (05:11)

• ‘We the People’ and Popular Sovereignty (09:12)
  The conversation highlights how the Constitution was meant to be rooted in the will of the people, echoing the ideals first laid out in the Declaration of Independence.

Article 5: Mechanics (and Difficulties) of Amendment

• Amendment Procedure—Intent and Reality (13:43)
  The framers intended amendment to be possible but challenging, settling on a double supermajority: 2/3 of Congress and 3/4 of states.

  “They don’t want it to be too easy. They don’t want it to be too hard. ...But it turned out almost immediately to be a much higher bar than they anticipated.”—Jill Lepore (13:43)

• The Role of Political Parties and Polarization (13:43–15:29)
  The emergence of parties and sectionalism made constitutional change far harder than founders expected.

  “Once you have a party system, a 2/3 super majority is extremely difficult. ...Given the nature of political culture in the United States today, it is effectively impossible to amend the Constitution.”—Jill Lepore (13:43)

• Alternative Pathways: The Convention Threat (17:04–17:51)
  While a convention of states could propose amendments, this option has only ever been used as a threat, notably to push through the direct election of Senators.

  “So eventually, people like, you know what we’re going to do? ...We will hold our new Constitutional convention. ...And under the threat of a Constitutional convention... the Senate caves and says, 'Okay, okay, okay, we don’t want you to have a convention.’”—Jill Lepore (17:06)

Judicial Review and Why Constitutional Change Happens

• Judicial Interpretation as a Substitute (21:00)
  When amendment stalls, courts fill the gap—sometimes controversially.

  “One way I think most legal scholars would understand judicial review is the reason the Court gains and executes such power over what the Constitution means is because Article 5 doesn’t really work.”—Jill Lepore (21:00)

• Amendment Tends to Follow Crisis (22:33)
  Almost all major amendments follow periods of war or social upheaval.

  “It really only ever gets pushed open during the Tumult of war, and then a bunch of changes are squeezed through, and then the door kind of slams shut again.”—Jill Lepore (23:52)

The ‘Drought’ of Amendments and Its Effects

• Long Gaps in Constitutional Change (25:07-25:31)
  The U.S. has sometimes gone decades without amendments, and recent paralysis may be the longest ever.

  “We are in a very long drought, constitutionally speaking... I think it contributes to the political instability of the United States. I think it contributes to the sense of inertness in our politics.”—Jill Lepore (25:31)

• Causes—More Political Than Structural (26:39)
  Polarized parties and the lack of bipartisan coalitions make amendment infeasible.

Why Amendments Fail: Lessons from the Equal Rights and Child Labor Amendments

• Importance of Grassroots Organization (27:18–29:49)
  Lepore argues that these failed because supporters lacked sustained, state-level strategies.

  “Amendment happens so infrequently that people kind of forget how to fight for it. So like if the ERA people... had studied what happened to the child labor amendment, they might have thought, oh, here’s some tricks we should know...”—Jill Lepore (29:28)

• Overreliance on Courts When Amendment Fails (28:05–29:50)
  After high-profile amendment failures, activists often retreat to the courts, making further amendment less likely.

‘Constitutional Moments’ and Education

• Notes on Fierce Battles and Second Founding (30:16–31:47)
  The 13th–15th Amendments are cited as a “second founding,” with figures like John Bingham and Frederick Douglass as heroes of constitutional transformation.

• How Constitutional History Is Taught—Or Ignored (32:08–34:34)
  Lepore observes that law schools and history departments largely teach constitutional history in isolation, losing holistic understanding.

  “Constitutional history in law schools really is just cases, case, case, case... Meanwhile, all the people are in history departments. And they're not really talking about the Constitution. So I think that's a problem.”—Jill Lepore (34:12–34:18)

• Hope for Civic Renewal (35:37)
  Lepore hopes the upcoming 250th anniversaries will inspire a new era of civic education and engagement.

  “One of my favorite moments from 1987... Supreme Court Justice Thurgood Marshall... said, ‘I will not accept the invitation to speak to celebrate the 200th anniversary of the drafting of the Constitution, but I will accept the invitation to celebrate the 200 years of struggle to realize its promise.’”—Jill Lepore (36:45)

Notable Quotes & Memorable Moments

• On the nature of amendment:

  “So fundamental to written constitutionalism as it was designed in the United States is what I call the philosophy of amendment. That commitment to change through revision.” — Jill Lepore (05:11)

• On the modern amendment ‘drought’:

  “We are in a very long drought, constitutionally speaking. And I think it contributes to the political instability of the United States.” — Jill Lepore (25:31)

• On why amendment is so rare now:

  “Given the nature of political culture in the United States today, it is effectively impossible to amend the Constitution.” — Jill Lepore (15:29)

• On why constitutional history matters:

  “I'm not trying to argue for specific amendments. I'm trying to argue for we should be able to imagine a better Constitution than we have and expect that we ought to have the power to amend it.” — Jill Lepore (29:50)

• On teaching constitutional history:

  “Constitutional history in law schools really is just cases, case, case, case... Meanwhile, all the people are in history departments. And they're not really talking about the Constitution. So I think that's a problem.” — Jill Lepore (34:12–34:18)

• On the struggle for constitutional realization:

  “I will not accept the invitation to speak to celebrate the 200th anniversary of the drafting of the Constitution, but I will accept the invitation to celebrate the 200 years of struggle to realize its promise.” — Supreme Court Justice Thurgood Marshall, quoted by Jill Lepore (36:45)

Timestamps for Key Segments

• Introduction & Setting the Scene: 01:34–04:37
• Origins and Philosophy of Amendment: 04:34–10:55
• Article 5 and the Mechanics of Amendment: 10:55–17:51
• Judicial Review, War, and Crisis: 20:31–24:58
• Amendment Drought & Historical Patterns: 25:07–26:55
• Lessons from Failed Amendments (ERA, Child Labor): 27:18–29:50
• Constitutional Moments & Heroes: 30:16–31:47
• How Constitutional History is Taught: 32:08–34:34
• Importance of Civic Education & Anniversary Hopes: 34:42–36:45

Tone & Takeaways

The episode balances scholarly insight and urgent civic concern, blending Lepore’s erudition with Wildman’s accessible style. The tone is earnest, often wry, emphasizing both reverence for the Constitution’s achievements and concern for its modern paralysis. Listeners are left with a sense of both the practical difficulties and historical possibilities of constitutional change.

Recommended for anyone curious about American civic life, the fragility and adaptability of constitutional systems, and why ‘We the People’ must remain committed to the ongoing project of self-government.