Amicus With Dahlia Lithwick | Law, Justice, and the Courts

Episode: How To Fix Our Broken Constitution

Date: September 6, 2025
Guest: Jill Lepore, Professor of American History and Law at Harvard
Host: Dahlia Lithwick

Episode Overview

This episode tackles the profound challenges facing the American Constitution: its “frozen” state, the near-impossibility of amending it, and the meaning and dangers of a Constitution cut off from democratic renewal. Dahlia Lithwick interviews historian Jill Lepore about her new book We the People: A History of the U.S. Constitution, which explores America’s lost tradition of constitutional tinkering, the philosophical roots of amendment, and why a living, changeable constitution is so crucial to democracy. Together, they discuss the legal, historical, and civic implications of a system that seems unable to adapt.

Key Topics and Insights

1. Constitution as "Dead, Dead, Dead"

• Dahlia Lithwick opens with the prevailing fear: America’s Constitution is "frozen in amber," unable to be changed or renewed, and this immobility is threatening democracy. Originalism, as championed by figures like Justice Scalia, insists the Constitution’s meaning is locked to the time of its drafting.
  • Lithwick: "There's a creeping sense that the United States is just broken and broken in ways that are unfixable. But today's show is about rekindling the possibility of repair." (02:31)

2. The Philosophy and Practice of Amendment

• Jill Lepore's Core Thesis: The concept of constitutional amendment wasn't meant to be rare or impossible; it was intended as a regular tool for democratic repair and peaceful change.
• Amendment as mending—a process analogous to sewing or weaving, rooted in everyday 18th-century life.
  • Lepore: "There's something really beautiful to me about the idea of amendment. The faith that you could have in renewal, improvement, correcting errors, moral progress, mending your ways, making amends..." (14:32)
• The original intent: Amendment was central to accept written constitutions as legitimate, standing against the violence and instability of revolutions.
  • Lepore: "If we could just fix things on our own when things aren't working well, then we will be sure that we won't start killing one another." (02:07, 14:32, 42:29)

3. How Originalism Distorts Constitutional History

• Lepore explains the limits of originalist methods, which restrict history to a narrow set of documents and interpretations—contrary to the rich, plural, and even chaotic actual historical record.
  • Lepore: "Originalists construct a kind of fenced in historical record, and there are only a few documents that are allowed within that fence... Historians would never make the decision to artificially restrict what is already an impoverished historical record." (06:21)
• Lepore’s approach: Study all the “cherries in the orchard,” meaning a broad, inclusive historical method that attends to forgotten people, perspectives, and failed amendments.

4. The Archive of Failed Amendments and Lost Traditions

• Insights from the Amendments Project: 12,000+ efforts to amend the Constitution, only 27 ratified—a record Lepore calls “an archive of failures” but also an archive of possibility and public imagination.
  • Lepore: "These [failed amendments] actually are like as good a record as we could possibly have. A kind of census of the political ideas of the American people..." (28:44)
• The American constitutional tradition once accepted repair and modification as healthy democratic functions. The current inability to amend, compared with ongoing amendment of state constitutions, signals “atrophy of constitutional imagination.”
  • Lepore: "...there's also the kind of atrophying of the imagination, a kind of atrophy of the constitutional imagination." (31:55)

5. The Relationship of Amendment and Violence

• Amending is not just legal tinkering but an act of violence prevention—a safety valve against insurrection.
  • Lepore: “We do not want to die again. We do not want our sons... women killed in war, our children, ourselves, our homes burned. We do not want to suffer the fate of an unamendable frame of government." (42:29)
• Historical precedent: The most significant amendments often follow or attempt to heal conflict (e.g., post–Civil War amendments).

6. Why Is the Constitution Unamendable Now?

• Multiple factors: Mathematical barriers (need for 2/3 of Congress and 3/4 of states), the rise of two-party deadlock, extreme polarization, and loss of trust among citizens.
  • Lepore: "It would take only 2% of the population of the country to defeat any particular amendment..." (31:55)
• Party system and Senate representation distort popular power; at the state level, conventions are avoided due to mistrust and polarization.

7. The Death of Article V and the Rise of Judicial Amendment

• Since the early 1970s, as Article V became a dead letter, the Supreme Court and originalist interpretation took over as de facto methods of constitutional change.
  • Lithwick: "Suddenly... the valve is shut off on constitutional amendment, and then the court just becomes singularly important." (35:11)
• Lepore traces how both liberal (FDR, Warren Court) and conservative (originalists, starting with Bork) movements contributed to sidelining amendment in favor of the courts.

8. The Dangers of Presidential Power Filling the Vacuum

• As Congress abdicates its constitutional duties, the executive acts more like an “amender”—claiming constitutional authority by fiat.
  • Lepore: "The power to amend the Constitution comes from the people to Congress and then back to the people. The President is no part of it... Yet we absolutely, as you say, we live in a world in which if the President says it's constitutional, it's constitutional, and if the President says it's not, then it's not. Nothing could be further from the constitutional order that was designed by the framers." (49:05)

9. Imagination, Hope, and a Call for Civic Renewal

• Despite the bleak outlook, Lepore argues for a renewal of the “philosophy of amendment” in public life. The upcoming 250th anniversary of the Declaration is an opportunity for civic gatherings, public constitutional literacy, and a revival of amendment as a democratic ritual.
  • Lepore: "There is a great deal of interest and concern about the Constitution across political parties... I think [community institutions] could really propel a revival of the kind of citizen gatherings that are necessary for a Constitution to bear meaning." (51:53)

Notable Quotes and Memorable Moments

• On how history is used in law:

  • "Originalists construct a kind of fenced in historical record... Historians would never make the decision to artificially restrict what is already an impoverished historical record."
    — Jill Lepore (06:21)

• On the philosophy of amendment:

  • "There's something really beautiful... the faith that you could have in renewal, improvement, correcting errors, moral progress, mending your ways, making amends..."
    — Jill Lepore (14:32)

• On the link between amendment and peace:

  • "It is meant to be the thing that you can do so that you don't kill one another... Like this will be the protection against insurrection..."
    — Jill Lepore (02:07, 14:32)

• On why the U.S. can’t amend the Constitution anymore:

  • "It would take only 2% of the population of the country to defeat any particular amendment at the ratification stage... But there's also this kind of atrophying of the imagination..."
    — Jill Lepore (31:55)

• On the dangers of presidential constitutionalism:

  • "If the President says it's constitutional, it's constitutional, and if the President says it's not, then it's not. Nothing could be further from the constitutional order..."
    — Jill Lepore (49:05)

• A vision for the future:

  • "I think if you could get the former Tea Partiers and the no Kings people to sit down together and have paragraph by paragraph conversations about constitutional phrases... in honor of the 250th... But there is a great deal of interest and concern about the Constitution across political parties..."
    — Jill Lepore (51:53)

• Host's closing image:

  • "And the sheets on the underpass are stitched together, she said."
    — Dahlia Lithwick (54:10)

Timestamps for Key Segments

• Intro, setting the stakes: 01:03–02:31
• The philosophy of amendment and peaceful change: 02:07–14:32
• On originalism vs. historical method: 06:21–10:25
• Why originalism isn’t “original”: 11:38–13:14
• Amendment as repair, activism, mending: 14:32–23:16
• Representation and who gets written out of constitutional history: 21:10–24:53
• The Amendments Project and lessons from a failed history: 27:45–31:28
• Why amending is now impossible: 31:28–35:11
• Hydraulic relationship between amendments and the courts, rise of originalism: 35:11–41:07
• Amendment as release valve for violence: 41:07–46:28
• Danger of unchecked executive power: 47:39–50:18
• A call for hope and civic renewal: 51:53–54:10

Summary

In this rich and urgent conversation, Jill Lepore and Dahlia Lithwick dissect America’s “unamendable” Constitution and the dangers of treating it as a dead document. Lepore rehabilitates the philosophy of amendment—as an act of mending, repair, and peace—and draws a direct line between constitutional stagnation, judicial dominance, executive overreach, and rising risks of political violence. She advocates for a return to civic constitutionalism: a living practice of adapting, debating, and occasionally rewriting our fundamental law. Despite the obstacles, Lepore finds hope in ordinary people’s attachment to the Constitution, urging a renewed collective imagination as America approaches its 250th birthday.