Loading summary
Transcript94 lines
- [00:01]
Commercial Narrator
You can make a difference in someone's life, including your own, with a job in home care. These jobs offer flexible schedules, health care, retirement options and free training. They also provide paid time off and opportunities for overtime. Visit oregonhomecarejobs.com to learn more and apply that's oregonhomecarejobs.com.
- [00:30]
Jill Lepore
Hey Fidelity, what's it cost.
- [00:33]
Commercial Narrator
To invest with the Fidelity app? Start with as little as $1 with no account fees or trade commissions on US stocks and ETFs.
- [00:42]
Jill Lepore
That's music to my ears.
- [00:44]
Commercial Narrator
I can only talk.
- [00:47]
Don Wildman
Investing involves risk, including risk of loss. Zero account fees apply to retail brokerage accounts only sell order assessment fee not included. A limited number of ETFs are subject to a transaction based service fee of $100. See full list of Fidelity.com commissions Fidelity Brokerage Services LLC Member NYSE S.
- [01:02]
Jill Lepore
Sometimes.
- [01:02]
LifeLock Advertiser
An identity threat is a ring of professional hackers, and sometimes it's an overworked accountant who forgot to encrypt their connection while sending bank details.
- [01:10]
Jill Lepore
I need a coffee.
- [01:11]
LifeLock Advertiser
And you need Lifelock. Because your info is in endless places. It only takes one mistake to expose you to identity theft. LifeLock monitors hundreds of millions of data points a second. If your identity is stolen, we'll fix it. Guaranteed or your money back. Save up to 40% your first year@lifelock.com specialoffer terms apply.
- [01:34]
Don Wildman
June 8, 1789 Federal Hall, Wall Street, New York City. Men in powdered wigs and dark colored formal coats sit at wooden desks. Sunlight filters through tall windows, casting long shafts of light across the floor. Outside are the streets of a growing capital, alive with commerce. But inside this room, the air is heavy and still in the summer heat. James Madison, the slight, soft spoken congressman from Virginia, rises, adjusting his notes. All eyes turn towards him. Madison commands respect. He has already played a central role in drafting the Constitution, but today he stands for a different reason. He stands to amend it. The Constitution is barely a year old, but critics, especially from the states, have pressed for more explicit individual protections. They want a Bill of Rights. Madison has heard their concerns. He understands the need for the change because he knows that the strength of this document, indeed the strength of the Union, depends on it. Greetings. Welcome back to American History Hit Don Wildman here. Glad you're listening. This is a special episode. Today, a Constitution, by definition, is a set of written rules designed to guide and limit the powers of a government, providing a stable framework for the exercise of public power. Straightforward idea, hardly simple. Most of us in our daily American lives, take this for granted, our stable framework having upheld itself with one major interruption for going on for 250 years. And we can largely chalk that up to the document at the center of our civic life, the United States Constitution. Consider the alternative. A government without a constitution vested by the people ceases to be a government of laws. It becomes a rule of individuals and factions. History shows us all too often where that leads. Since ratification of the United States Constitution, the US has been a government of laws, some of them abhorrent, but their rootedness in constitutional soil has made them changeable, amendable, setting our constitutional governance apart from so many despotisms and dictatorships. It is this notion of a dynamic, responsive constitution that concerns the brand new, soon to be released book we the People, authored by Jill Lepore, a David Kemper Woods, 41, professor of history at Harvard University who has been publishing important books since the 1990s like the name of War, the Secret Life of Wonder Woman, and these Truths. She's a staff writer for the New Yorker magazine and host and producer of original podcast series like the Last Archive. Her knee buckling list of scholarly achievements goes on, but let's just talk to her. Joe Lepore, it is a true privilege to welcome you to American History.
- [04:35]
Jill Lepore
Hit. Oh, thanks so much for having me.
- [04:37]
Don Wildman
The U.S. constitution. Let's discuss a document that should evolve with its times as Madison himself intended. You mentioned this right in the introduction. This was one of the core reasons to revisit this fabled history. Yes.
- [04:50]
Jill Lepore
Yeah. For me, I got really fascinated by the idea of amendment and concerned about why it's been abandoned in the United States. At the level of the federal government.
- [04:59]
Don Wildman
There are 195 nations in the world today. A lion's share of those countries have written codified constitutions. What makes the US Constitution so unique to this day? I suppose the age will start there, right?
- [05:11]
Jill Lepore
Yeah. I mean, as a national constitution, it is among the very oldest, I think the oldest written constitution in the world that is still in use and has been continuously in use is that in my home state, Massachusetts, from 1780. Yeah. Go Bay State. But you know, I think it's easy to assume that written constitutions have been around for much longer than they have. I mean, I think we might assume that they go back to the beginning of writing itself, but that is not the case. Fundamental law was generally unwritten and it's really an 18th century invention. It's a particular technology of the 18th century. And when people started writing down constitutions, when you think about it, you know, for half A minute, you immediately see the dilemma. Know you're writing down fundamental law and you want it to last. That's why you're writing it down. You want it to be legible and transparent, available to the people for their inspection. But you know that things are going to need to change. And you know, England has an unwritten constitution. It is always adapting, always evolving. And the colonists in Britain's North American colonies thought that was a big part of the reason for the Parliament's ability to exert tyrannical authority over the colonies. Because they could never say, here's the place in your constitution where this is. They kept saying, your taxation is unconstitutional. And then there was no place to point to. So this was one of the things Tom Paine said about American constitutionalism. You could keep it in your pocket, you could take it out and say to the government, this is constitutional, this is not. So it was a sort of innovation of great determination on the part of the American patriots to decide to write the thing down. 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. That commitment to change through revision.
- [07:01]
Don Wildman
Exactly. That. It was created during the 18th century, as you mentioned, puts it right in the world of the Enlightenment, influenced by all of that which made the Enlightenment, the references to Greek democracy, Roman republicanism, and all those British legal traditions like the Magna Carta and so forth, I mean, that also contributed to the uniqueness of this document. Is that fair to say?
- [07:23]
Jill Lepore
Yeah, I mean, it's really building on a world of charters. So not just, you know, Magna Carta, the great charter, which in itself, right. Was a really important check on the power of the king. We will write down and force you to sign, you know, said the barons, the noblemen, force you to sign that there are certain things you cannot do to us. The declarations of rights that came out of the English revolution of the 17th century were also part of that tradition. But there's a kind of everydayness to it in Britain's North American colonies because each of the colonies had a written charter. And those were also really influential. So you don't have to go back to antiquity. But people would say, well, oh, you know, we in Pennsylvania, here's our charter. It says our governor can do this, but not that. And so the idea that upon declaring independence now, nearly 250 years ago, that the new United States would not write down its fundamental law, that was not among the possibilities. There had been A real accommodation to a familiarity with the idea that the way you limit the power of a government is to write down and circumscribe its powers and then also to write down and define your rights.
- [08:40]
Don Wildman
It always belies the complexity of the thing. When you hold one of these little pamphlets that is the United States Constitution that was indeed intended to slip right into your pocket. It's incredibly small really, but there it is. It ends up being a very, very big conversation. Part of that is the we the people aspect of it. This was, I say, vested by the people. It was written and ratified by representatives of the people. We can argue about who they were and what they really represented, but that was the idea that popular sovereignty defined. This power came from the people.
- [09:13]
Jill Lepore
Yeah. And that is articulated first in the Declaration of Independence in 1776. We hold these truths to be self evident, that all men are created equal, that they are endowed by their Creator with certain inalienable rights. Among these are life, liberty, the pursuit of happiness. So the consent of the governed, the ability of the people to govern themselves is declared. That's one of the things. It's not just a Declaration of Independence, it is a Declaration of Rights. That document is both of those things. And remember, the colonies in the States had been declaring rights all along. John Adams was always miffed that Thomas Jefferson got so much credit for writing the Declaration of Independence. He's like, there was not an original idea in it. We'd already decided on these ideas. Yes, that's why they are self evident. But the realization of that at the level of the federal government awaits the Constitution.
- [10:03]
Don Wildman
Yeah. I'm going to remind people as we speak that the reason we're talking about this is the book that you are coming out with, which is a full history of the US Constitution called We the People. And that's really exciting timing because of course, we're facing the 2 50th of the country, the Declaration of Independence. But beyond that, 11 years from now will be the 250th anniversary of the US Constitution as well. So we're entering into this founding era of America, this anniversary of it. And that's what's so important. Article 5 is the article that talks about amendments. It itself was a condition of ratifying this Constitution for many of these representatives who were arguing over it in 1787. Right.
- [10:42]
Jill Lepore
Yeah. So I think one thing that's important to remember about this anniversary season that we're entering, we think about it as, okay, this 200th year anniversary of the Declaration of Independence next year in 2026. But it's also the anniversary of the first state constitutions.
- [10:56]
Don Wildman
Yeah.
- [10:56]
Jill Lepore
You know, which begin, you know, the. The war starts in 1775, early 1776. Thomas Paine publishes Common Sense, and he says, you know, we need to become independent. And the states start drafting their own constitutions because they're with. Essentially without a government. And when they draft those constitutions, they set up some fundamental ideas about what a written constitution will be. Each of those state constitutions is another experiment in, like, how should we set up a government? And one of the things that happens with those early constitutions is people get the idea that there are certain requirements. So in Massachusetts writes a constitution in 1776, the legislature writes it, and then they send it to the people for ratification, and the people say they reject it. The first constitution of Massachusetts rejected for two reasons. One, the people of Massachusetts say, we don't want the legislature writing a constitution. That makes no sense. They can give themselves whatever power they want. We need to have a special elected body. They call it a convention, a constitutional convention. We elect people that are not members of the legislature because they want to think critically about it. The people want to have that power. And yes, you let us ratify it or not ratify it, but you didn't give us power to amend it. And so Massachusetts has to go back to the drawing board and write a new constitution that comes out of a constitutional convention and includes this amendment provision which gives to the people the power to revise the document. And so by. So that's 1780, when that finally gets ratified. So by the time the constitutional convention for the nation itself opens in 1787, there's this expectation we'll never get this thing ratified unless we grant to the people the power to amend it, because otherwise it's just a usurpation of power. It's a seizure of power. So they know they have to put that in. It's quite uncontroversial that they're going to put in and that becomes Article 5 of the Constitution.
- [12:52]
Don Wildman
I love the metaphor you use in the introduction about the farmers amending their soil, that this was part of the idea that you every season, have to refresh how you're growing your foods and get a bigger harvest. And that was. I just want to state out that, you know, we're going to get into some complexities of Article 5 and so forth, but that was really the idea that it is a changeable and dynamic document, which, you know, doesn't seem that way these days. Which we'll discuss. There is a built in irony to the, to the Constitution. You have this rule book, the guide for established governments, but you have upfront the need for it to change. Let's talk about the method of doing this. There's a lot of arguments about certain elements of this these days, Electoral College, big controversy and so forth. But part of the problem is that it's so difficult to change this Constitution. Right. Was it meant to be?
- [13:43]
Jill Lepore
No. So it really is kind of a Goldilocks problem. They, you know, they want the Constitution to last. They have no idea whether it's going to last, but they would like it to last. They're trying to provide stability for a fragile new union. So they want it to be amendable, but they don't want it to be too hard. They don't want it to be too easy. They don't want it to be too hard. And what they settle on is double super majority. So any proposed amendment has to pass by a Super majority of 2/3 in both the House and the Senate, and then it has to be ratified by three quarters of the states. And that seems to them quite high. It's, you know, to impeach a president is a two thirds vote in the Senate. That's, you know, a treaty ratification like that's a very high bar. It's not a simple majority. And then to go through the states, that's a lot as well. But it turned out almost immediately to be a much higher bar than they anticipated because in 1787, when they came up with that calculation, that formula, there were no political parties in the United States. Political parties don't emerge until the end of the 1790s and really don't get firmly established until the election of 1800. So once you have a party system, a 2/3 super majority is extremely difficult. And they also didn't really anticipate that sectionalism, which was strong in 1787 to be sure, would become much stronger. So they also could not have anticipated the kind of party polarization that has seized and really paralyzed the United states since the 1970s. So. And that's the last time we really amended the Constitution. Given the nature of political culture in the United States today, it is effectively impossible to amend the Constitution.
- [15:29]
Don Wildman
That's really troubling. That is keep you up at night kind of troubling. I just want to underscore what you just said. There are two ways to change this Constitution. Two thirds majority in both House and Senate, which was the original way, and then they added to it right that the state legislatures had to have that option as well. That was kind of the people versus the federal government idea.
- [15:50]
Jill Lepore
Yeah, it's a little bit different than that. So to become part of the Constitution, an amendment has to pass either a 2/3 majority in Congress or 3/4 of the states.
- [16:03]
Don Wildman
Right.
- [16:03]
Jill Lepore
But it also has to be ratified. So the, the ratification process is always the same. It has to pass 3/4 of the states.
- [16:10]
Don Wildman
Right.
- [16:11]
Jill Lepore
But the process of being sent to the states, it can be sent to the states via Congress or via a convention of the states, which has not ever happened.
- [16:20]
Don Wildman
Right.
- [16:21]
Jill Lepore
But it is, you know, it's constitutionally feasible. And the reason for that, and I think that's what you're referring to, was sort of the same thing the Massachusetts people said. We, we can't just rely on the legislature to decide how to. Because what if we want to limit congressional powers? So, for instance, a very, it was a very long campaign. Under the terms of the original Constitution, the people did not elect the Senate. The state legislators elected the Senate. And that's a little bit like the electoral college. Right. Like the framers of the Constitution didn't trust the people to elect the Senate. They say, oh, we'll have, we'll filter out the public. Will popular. Will have the Senate be elected by state legislators. How to get. Getting rid of that, amending that out of the Constitution was really difficult because it had to get through the Senate.
- [17:05]
Don Wildman
Yeah.
- [17:06]
Jill Lepore
So eventually, people like, you know what we're going to do? We're going to, we're going to hold a convention of the states, and we will hold our new Constitutional convention. And then not only will we eliminate this, you know, indirect election of the Senate, but we'll introduce all kinds of other things that you guys don't like, but that the people like. And under the threat of a Constitutional convention. This is in 1911. The Senate caves and says, okay, okay, okay, we don't want you to have a convention. So we will pass this and send it to the states and then it was immediately ratified. So the, the idea that the states themselves could have. Could propose amendments is original to the Constitution. It's just, it's just only ever been a threat. Yeah.
- [17:52]
Don Wildman
I'll be back with more American history after this short break.
- [17:59]
Commercial Narrator
It's that time of year again, back to school season, and Instacart knows that the only thing harder than getting back into the swing of things is getting all the back to school supplies, snacks and essentials you need. So here's your reminder to make your life a little easier this season. Shop favorites from Staples, Best Buy and Costco, all delivered through Instacart so that you can get some time back and do whatever it is that you need to get your life back on track. Instacart we're here. You can make a difference in someone's life, including your own, with a job in home care. These jobs offer flexible schedules, health care, retirement options and free training. They also provide paid time off and opportunities for overtime. Visit oregonhomecarejobs.com to learn more and apply. That's oregonhomecarejobs.com when you think about businesses that are selling through the roof, sure you think about a great product, a cool brand and brilliant marketing. But an often overlooked secret is actually the businesses behind the business making selling simple for millions of businesses. That business is Shopify. Nobody does selling better than Shopify. They're the home of the number one checkout on the planet and the not so secret shop pay that boosts conversions up to 50%, meaning way less carts going abandoned and way more sales happening. Businesses that sell more sell on Shopify. Upgrade your business and get the same checkout allbirds and skims use. Sign up for your $1 per month trial period at shopify.com/start selling all lowercase go to shopify.comstartselling to upgrade your selling today. Shopify.com startselling sometimes an identity threat is.
- [19:56]
LifeLock Advertiser
A ring of professional hackers, and sometimes it's an overworked accountant who forgot to encrypt their connection while sending bank details.
- [20:03]
Jill Lepore
I need a coffee and you need.
- [20:05]
LifeLock Advertiser
Lifelock because your info is in endless places. It only takes one mistake to expose you to identity theft. LifeLock monitors hundreds of millions of data points a second. If your identity is stolen, we'll fix it, guaranteed or your money back. Save up to 40% your first year. @lifelock.com Specialoffer terms apply.
- [20:32]
Don Wildman
We're discussing Article 5, which is about the amendability of the U.S. constitution. Those two aspects of how to change this Constitution are in company with the judicial interpretation. You can take this to the courts. This is not, you know, to fix the Constitution per se, but to effect change on a legal level. It has been found that maybe working through the courts is a better way of doing this. Straight to the Supreme Court. This is called judicial interpretation, correct?
- [21:01]
Jill Lepore
Yeah. Or judicial review. And its critics call it judicial supremacy.
- [21:05]
Don Wildman
Okay. Was this foreseen by our founders?
- [21:08]
Jill Lepore
Foreseen? Probably. Written into the Constitution. Absolutely not. The powers of the Supreme Court are a court are delineated in The Constitution, of course, but never does it says it falls to the Supreme Court to decide the constitutionality of the laws in the way that the Court then exercised that power. That said, it is very old the practice of judicial review. And it is first asserted by the court in 1803 in a case in which the Court overturns a federal law. Before the Civil War, the Court only declares law passed by Congress unconstitutional twice. Like it's not a common thing for the Court to do. So it has become far more common. And you know, 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. So the Constitution does need to change. Like circumstances change, things change. Like there it's a very well documented. It needs to be updated in all kinds of ways. And in the. The kind of vacuum that is created by the problem of Article 5 not really working because of the party system, the court steps in and changes the Constitution by way of new interpretations.
- [22:27]
Don Wildman
Exactly. What brings about amendments, it's usually war and crisis. Right.
- [22:33]
Jill Lepore
Yeah. So what is interesting, like the US Constitution has one of the lowest amendment rates in the world. Most Constitutions, first of all, don't last that long. You know, 20 years is I think the average. And most Constitutions are very frequently amended. This is the case in the United States. In all the states, there have been, you know, more than 200 constitutional conventions in the, in the, in the United States, in the states amending or replacing state constitutions. So Americans really believe we should be amending constitutions all the time, as do peoples all over the world. Like, they're really important legal instruments, but they need updating. With the federal Constitution, There have been 27amendments ratified, but really only in bursts. Right. So the first 10, which are now known as the Bill of Rights, were ratified all at once in 1791. Essentially the Civil War amendments, which are the product of that war. The 13th, 14th and 15th Amendments are ratified all in a go. The Progressive era amendments are ratified, four of them, right around the time of the First World War. There are four amendments ratified between 1961 and 1971. When the US is engaged in war in Vietnam. I think it's really the upheaval of war that that often includes kind of political revolutions at home.
- [23:52]
Don Wildman
Yeah.
- [23:53]
Jill Lepore
That makes possible, you know, the kind of the constitutional door. This is what Washington always called the amendment provision. We need to leave the door ajar. But 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.
- [24:12]
Don Wildman
Right. It's interesting, I mean, how much the nuclear age has had to do with this. You know, nuclear deterrence has created no world wars anymore. And so the. The sense that war, you know, unifies us against our common enemy is no longer part of American life. And so you wonder how much that's affected the amendment process in the end.
- [24:33]
Jill Lepore
Or you might say the end of the draft, the military draft. So the last time we really meaningfully amended the U.S. constitution was 71.
- [24:41]
Don Wildman
Yeah.
- [24:41]
Jill Lepore
Which was lowering the voting age from 21 to 18, which really came out of the anti war movement. Right. All these young men being sent off to fight in Vietnam and couldn't even vote at home. And then in 1973, also out of the anti war movement, the US ends conscription.
- [24:57]
Don Wildman
Exactly.
- [24:58]
Jill Lepore
So the US has been involved in many wars since 1973, but it is the poor who fight those wars. And it has a different political purchase.
- [25:07]
Don Wildman
We talk. I mean, it's a long time, 30 years, but there's been longer times. There were 61 years from 1804 to the Civil War that no amendments were made that included the entire early republic period and antebellum 43 years between the 15th, which was in 1870, to the 16th, which was 1913. I guess we've already addressed what these have in common. Are we heading now into a longer period that's gonna break that record?
- [25:31]
Jill Lepore
Well, I don't really count the 27th amendment was ratified in 1992, but I don't honestly count it. So I think we are in a very long period. 27th amendment was first proposed in 1789, so it wasn't really a new idea, but it was ratified in 1982. So we are in a very long drought, constitutionally speaking. And I think it contributes to the political instability of the United States. I think it contributes to the sense of inertness in our politics. Right. I think across all political persuasions, Americans believe that the federal government isn't working especially well. And you might like what it's doing, but you might not like how it's doing. Like, let's say you're a Trump supporter and you really believe in what the Trump administration is doing. I think you might also think, well, that's a little bit too much executive power for my taste. What if I didn't like who was in the White House? And I don't think anyone really thinks Congress is working well. And if you like the kinds of decisions that the Supreme Court is making, you still probably think, well, it's probably not great that they have that much power right now. The balance between the three branches, I think most Americans would agree, who are paying attention at all, is completely out of whack. And there's no real way to fix it.
- [26:40]
Don Wildman
Right. I mean, and the gridlock and the sense of inertness that you're talking about is probably more traceable from the party system than it is from the Constitution. Right?
- [26:49]
Jill Lepore
Yeah, yeah, yeah. And it's all. But it's all kind of a big ball of how do you affect change any longer?
- [26:56]
Don Wildman
Right. But I suppose that your book is an attempt, and in a bigger sense, the anniversary, as we look down the ages, is an attempt to refresh this argument. And that speaks to optimism that there is a way to do that. The problem is the Constitution doesn't give us that option, does it? Any other way of looking at this than super majorities?
- [27:19]
Jill Lepore
Yeah. But I do think there's something to be said. I mean, obviously this is a core belief of mine as a historian. Right. That I do think there are reasons to pay attention to how amendment efforts in the past have succeeded and failed. So one of the most notable failures in recent history of an attempt to amend the Constitution was the Equal Rights Amendment, which was first proposed in con, introduced in Congress in 1923, is passed in 1972 and is widely expected to be ratified. Goes to the states again, like 1971. We just ratified another amendment. And this huge, you know, 80% and above public support for the Equal Rights Amendment, which guarantees equal rights regardless of sex.
- [28:05]
Don Wildman
My mom was out there.
- [28:07]
Jill Lepore
Yeah, my mom was probably not. But I think one of the things people really thought, oh, this won't take very long. We'll surely be able to celebrate on July 4, 1976, at the bicentennial, where we have fireworks, we'll celebrate this beautiful new amendment and it fails. And the failure is, I think one of the reasons amendment becomes impossible. People like, we put so much into getting the ERA ratified and it failed. We're never going to do that again. We're just going to go to the courts. But I think one of the reasons the ERA fails is that the people who were supported it didn't really have a good ground game in the states. They didn't expect opposition. They didn't think about it. But if they had looked, for instance, at the child Labor Amendment, this was an amendment that passes Congress in 1924. So the year after the era was first introduced goes to the states, same thing. Everybody expects it's going to be immediately ratified. Like people don't, you know, there's huge public support for the idea that there should be laws regulating the labor of children under 16.
- [29:05]
Don Wildman
Right.
- [29:05]
Jill Lepore
It just seems like a no brainer. Of course this thing's going to be immediately. Right. We've just ratified the 19th amendment granting women the right to vote. Like, we're ready to keep going. We're going to protect children from exploitation. And it is a very similar campaign to defeat it where there's a great ground game in the states by people who are opposed to the child labor amendment and it is never ratified.
- [29:28]
Don Wildman
Wow.
- [29:29]
Jill Lepore
And you know, you're sort of like, wow, Amendment happens so infrequently that people kind of forget how to fight for it. So like if the ERA people I would, they had studied what happened to the child labor amendment, they might have thought, oh, here's some tricks we should know. Here's some places we should expect opposition, here's some strategies that, that might work. Like you can't just say in like a lot of national speeches, we love this thing.
- [29:50]
Don Wildman
Yeah.
- [29:51]
Jill Lepore
You know, you really have to organize in the states and you have to talk to legislators and you have to have, you know, chapters of whatever organization out there, you know, doing pamphleteering. It just like the reason, one of the reasons I wrote the book because, you know, I don't. 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.
- [30:16]
Don Wildman
When were the superstars at work in this process? Is that the Gilded Age period when they really kind of get it as far as how to change this thing?
- [30:24]
Jill Lepore
I find inspiration in a lot of these different constitutional moments, or what some legal scholars call a constitutional moment. I think the abolitionists waged some really interesting and fierce battles about how to amend the constitution with the 13th, 14th and 15th amendments, which also involved suffragists who thought that was their moment. I mean, in terms of just the beautiful speeches made in Washington. John Bingham, who was chiefly responsible for writing the 14th Amendment, which puts in place the birthright, citizenship, due process, equal rights under the law. He makes just some incredible speeches about what it means. And historians talk about these three amendments, the 13th, 14th and 15th, as the second founding. They are essentially like a new constitution. And the 39th Congress, which begins to meet in 1865, is often thought of as effectively a second constitutional convention. Where these guys get together and they say, we have just waged a war. It's not even over at when they begin. You know, 750,000Americans die in that war to end slavery and hold together the Union. And we have to keep this constitutional door open long enough to fundamentally change the Constitution.
- [31:48]
Don Wildman
Yeah.
- [31:49]
Jill Lepore
And it's just an extraordinary run of years. So I think John Bingham is really powerful. The speeches that Frederick Douglass gives in the years leading up to that moment are just mind blowing. There's a lot of great heroes to me.
- [32:08]
Don Wildman
Is this taught? I mean, you teach at Harvard Law as well as a history professor. Do you think this idea of changing the Constitution is taught aggressively enough in law schools?
- [32:20]
Jill Lepore
You know, it's actually. That's a really great question, Don. It's fascinating. What kind of happened in my lifetime. Constitutional history moved out of history departments.
- [32:28]
Don Wildman
Yeah.
- [32:28]
Jill Lepore
So, like in the 70s, with the rise of social history, and then later by the kind of 90s, cultural history. History department is really dominated by social and cultural history. Kind of the cultural turn. Everyone's studying the making of meaning. Military history just kind of moves just into the military academies. Like, people start teaching military history, and that's part of the anti war movement. Like, we should stop teaching war. But constitutional history is just kind of derided as constitutional worship and something from the right and of no real interest to a rising generation of young Americans who want to think about, you know, what we would call identity politics.
- [33:05]
Don Wildman
Right.
- [33:05]
Jill Lepore
They want to study just, you know, different groups, you know, women's history. Like an incredible revolution, intellectual revolution takes place in these years where, like, black history emerges, Chicano studies, you know, what becomes gay studies. Like, there's just an incredible blossoming of research into the archives that really had been entirely ignored. And one of the things that gets kind of thrown out as those things grow is constitutional history, which moves into law schools. Because, of course, in law schools, people need to know the history of the Constitution for the sake of precedent. Right. They have a very different way of thinking about history. They're not. They're specifically not thinking about all those other people. Right. They really are just looking at what the Supreme Court says. Constitutional history in law schools really is just cases, case, case, case, case, case, case, case, case, case. How does this case relate to that case? You know, we're looking at Plessy v. Ferguson. Now we look at Brown v. Board of Education. Does anyone know who Plessy is? No. You know, does anyone know who Brown is? No, these are just case names. Like, there are. No. There are no people in constitutional history and law schools. And not to criticize it, but that's just what it is. Meanwhile, all the people are in history departments.
- [34:13]
Don Wildman
Right.
- [34:13]
Jill Lepore
And they're not really talking about the Constitution. So I think that's a problem for.
- [34:18]
Don Wildman
The compartmentalization of law.
- [34:20]
Jill Lepore
Yeah. For both sides. Right. It's a problem in law schools that they don't, you know, there's just no sense of this is these cases are involved people and contests about the power between the distribution of power, not just within the government, between the people. Between the people and the government.
- [34:34]
Don Wildman
Yeah.
- [34:34]
Jill Lepore
And in the history departments there's no sense that the Constitution matters. So I'm trying to kind of bridge that. That's my gotcha. That's what my position is sort of about.
- [34:43]
Don Wildman
The book is of course about a lot more than the Article 5, but I wanted to talk about that because it's so much the spirit of the early pages of the book for sure, when someone picks it up, that this thing is meant to be changed and meant to be dynamic. Also meant to be the center of people's thinking in terms of the United States. And that's the problem. Life has gotten very complicated and media has had a lot to do with that. And so we kind of find time in our days to think about what we think about. And the Constitution has been shoved aside, as you say 2026. We've mentioned it already. 250th anniversary of the Declaration of Independence also marks, as I say, the 11 year march towards the same of the Constitution in 2037. Think of this. A first grader entering next fall in 26 will graduate high school in 2037. That 11 year period is a generation of alpha generation of kids who are going to hear about 250 all their schooling. I'm hoping that the Constitution will be part of that as well.
- [35:38]
Jill Lepore
Yeah, I hope so. There's a real concerted movement in the United States to kind of renew civic education. Civics, I will confess when I took civics when I was in ninth grade was a dreadful disaster of a course. It was taught with such low energy and lack of affect and activity. But one of the things that happened during the bicentennial that was a great thing about the bicentennial in 1975, 1976, was that there was a tremendous local effort to think about the meaning of the founding of the nation. And not for the sake of veneration, but for the sake of public engagement and disputation and the celebration of dissent. One of my favorite moments from 1987, which was the 200th anniversary of the Constitution, was when Supreme Court Justice Thurgood Marcel, who was the first black American to serve as a Supreme Court justice, gave this tremendous speech in which he 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.
- [36:46]
Don Wildman
Well, get the book, folks. You will spend time with very accessible prose that takes you through the history of much more than the article 5. As I say, in the hands of this incredibly skilled writer. Thank you so much, Jill Rapport. It's been an honor to talk to you.
- [37:00]
Jill Lepore
Thank you.
- [37:03]
Don Wildman
Hey, thanks for listening to American History hit. You know, every week we release new episodes, two new episodes dropping Mondays and Thursdays. All kinds of content from mysterious missing colonies to powerful political movements to some of the biggest battles across the centuries. Don't miss an episode by hitting like and follow. You help us out, which is great, but you'll also be reminded when our shows are on. And while you're at it, share it with a friend. American History hit with me, Don Wildman. So grateful for your support.
- [37:38]
LifeLock Advertiser
Sometimes an identity threat is a ring of professional hackers, and sometimes it's an overworked accountant who forgot to encrypt their connection while sending bank details.
- [37:46]
Jill Lepore
I need a coffee.
- [37:48]
LifeLock Advertiser
And you need Lifelock. Because your info is in endless places. It only takes one mistake to expose you to identity theft. Lifelock monitors hundreds of millions of data points a second. If your identity is stolen, we'll fix it, guaranteed or your money back. Save up to 40% your first year@lifelock.com specialoffer terms apply.
- [38:08]
Jill Lepore
Did you know that parents rank financial literacy as the number one most difficult life skill to teach? Meet Greenlight, the debit card and money app for families. With Greenlight, you can set up chores, automate allowance and keep an eye on your kids spending with real time notifications. Kids learn to earn, save and spend wisely. And parents can rest easy knowing their kids are learning about money with guardrails in place. Sign up for Greenlight today at greenlight. Com Podcast.