← Amicus With Dahlia Lithwick | Law, justice, and the courts
Amicus With Dahlia Lithwick | Law, justice, and the courts
How To Fix Our Broken Constitution
00:55:37
Historian Jill Lepore explains how the power to change the law through constitutional amendments was always intended to keep Americans from killing each other.
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Host (Likely Dahlia Lithwick)
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Ryan Reynolds
Hey, it's Ryan Reynolds here from Mint Mobile.
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Jill Lepore
Now.
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Ryan Reynolds
I was looking for fun ways to.
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Tell you that Mint's offer of unlimited.
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Ryan Reynolds
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Host (Likely Dahlia Lithwick)
Of 45 dol month plan equivalent to $15 per month required new customer offer for first three months only. Speed slow after 35 gigabytes of networks.
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Jill Lepore
Busy taxes and fees extra.
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Host (Likely Dahlia Lithwick)
See mint mobile.com I'm Dahlia Lithwick and this is Amicus Slate's podcast about the courts and the Supreme Court and the law. Hello. How are you doing? It has been one hell of a week. Another one in which the outra grow more outrageous and our path to equal justice under the law grows narrower and more perilous. I'm thinking just off the top of my head about the government's attempt to deport hundreds of children that it rounded up, send them to Guatemala in the middle of the night, of troops in the streets and extrajudicially blowing up foreign vessels and of canceled vaccines. Mark Joseph Stern and I are going to be tackling some of these outrages in our bonus episode for PLUS Members. You can listen to it right after this one. But first, we've kind of left the.
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Jill Lepore
Idea of amendment behind, and it is meant to be the thing that you can do so that you don't kill one another. And that's what's so beautiful about it, right? Like this will be the protection against insurrection, against the United States devolving into insurrectionary politics. 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.
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Host (Likely Dahlia 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. Now, we have devoted a good amount of energy in recent years to thinking and talking about an American Constitution that is, as Justice Antonin Scalia famously described it, quote, dead, dead, dead. The forces that brought us Originalism, including Scalia, worked very hard to establish a world in which the Constitution means no more and no less than it meant at the time of its drafting. You get what you get, and you don't get upset. Scalia was also really fond of saying that if you don't like it, amend it. The truth of the matter is, of course, that is not actually possible. Although nearly 12,000 constitutional amendments have been introduced in Congress since 1789, with thousands more proposed from outside the doors, only 27 have ever been ratified. The most recent amendment was added to the US Constitution in 1992, and that amendment had actually been written two centuries earlier. It's been nearly a half a century since the last time Congress adopted an amendment and sent it to the states for ratification, which failed. Jill Lepore's brand new book, we the A History of the US Constitution, which comes out on September 16, serves as a picture of the roads not taken for American constitutional history. And it's also an elegy of sorts for a Constitution that has been frozen in amber in so many ways that it has begun to drown American democracy. The book questions how might the United States have become a more perfect union had the Constitution been allowed to change and grow and breathe? And maybe more urgently asks, what happens to a Constitution that is dead, dead, dead, and to a nation that feels unable to change it? Jill Lepore is The David Woods Kemper, 41 professor of American History at Harvard University and a professor of law at Harvard Law School. She's been a staff writer at the New Yorker since 2005. Her books include the international bestseller these A History of the United States, and she's host of the podcasts the Last Archive and the Elon Musk Origin Story. Jill Lepore I rarely get like starstruck and weird and stuttery, but I actually feel it being in conversation with you. And I also think I know you didn't deliberately launch this book to hit me right between the eyes at a moment where we just feel the stuckness down to our bones. But wow, it really is kind of rattling around in my consciousness. So welcome to the show. It's gonna be, I think, a really thinky con, and I hope actually a sort of hopeful one.
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Jill Lepore
Well, thanks so much for having me. I'm such an admirer and it's just a blast to get a chance to be a guest.
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Host (Likely Dahlia Lithwick)
So can we start not with the Founding, we'll get there. But I want to talk about the discipline of history and how you approach your study of it. And I know I'VE heard you say, I'm not a historian exactly. I'm just a journalist who writes about history. So. Okay, we're going to begin a little bit with this meta question. This is a show about the Supreme Court and the Roberts Court, which has told us time and again that history and tradition are the newest, the only lodestars of justice. So I'm very, very interested in how you think about, you know, kind of doing history and how the justices are doing history, because I'm not entirely sure that you and, say, Amy Coney Barrett are talking about the same project at all.
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Jill Lepore
Yeah, it's a really interesting question. It's almost funny that the same word stretches across so many different means of thinking about the relationship between the past and the present. I often think that history gets sort of a weird rap because there are a lot of alchemists out there and historians are the chemists, but everybody thinks we're also the alchemists, and the alchemists think that they're the chemists. And I mean, not to sort of set up some false hierarchy, there's a. There's a lot of stuff that we call history that I would call folklore or myth. You know, a lot of stuff that kids learn in elementary school about the nation's past is wonderful and beautiful, but has a kind of folkloric quality to it or is really just politics by other means. I mean, there is, you know, we're in the middle, as you know, of a kind of national crisis around telling the nation's story. Who gets to tell it? Where do they tell it? Can it be subject to disagreement? Is dissenting from a historical interpretation of historical evidence somehow a kind of political dissidence at this point? Like there are some really kind of deep questions about what's going on with history right now. I don't think that's as atypical as maybe we might think. But I do think there are several crucial differences, and I would point to one between how historians, academic historians, think about the past and how originalists think about the past. I think otherwise federal judges, judges of any kind think about the past differently. They're not all originalists, but the historical method and originalism as a method of reading the Constitution just don't have a lot in common. Originalists construct a kind of fenced in historical record, and there are only a few documents that are allowed within that fence, and that constitutes, for originalists the historical record. And there's a reason to do that in the law. Right? Like that can be defended as A proposition. Right. Then the things that are allowed in are the Constitution itself, Madison's notes on the Constitutional Convention, the notes of the ratifying conventions, and the Federalist Papers, really. And then whatever dictionary Samuel Johnson happened to have in print in 1787. And then there's some, you know, 14th amendment associated documents as well. Right. The records of the. The 39th Congress. And that's kind of. That's kind of it. And historians would never make the decision to artificially restrict what is already an impoverished historical record. I mean, the problem with researching the 18th century is the scarcity of sources and above all, the asymmetry of the historical record. Right. We know a great deal about some people and little to nothing about others. So I once wrote a biography of Benjamin Franklin's sister Jane, for instance, because Franklin, whom I adore, you know, the. The bound papers of Benjamin Franklin run to, you know, 50 bound volumes in the library. And the record left behind by his sister, who was his closest family member are extraordinarily limited. And yet we are, you know, we are, as a people, descended from the experiences of all of those people. So one of the reasons I wanted to write this book about the Constitution was to use a much bigger historical record to account for the change and lack of change in the Constitution over the centuries.
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Host (Likely Dahlia Lithwick)
It's funny, when I was reading this book, I was thinking about the principal critique about Justice Alito's history in Dobbs, just for instance, was that it was cherry picked, that he was plucking bits from dictionaries and from contemporaneous accounts of things, ignoring everything else. And I was thinking, in some sense, this book is like a. It's like a fulsome cherry harvest. You know, like it's all the cherries, and you're really, I think, trying to amass every bit of data that you can get your hands on. It's a completely. It feels like it's a totally opposing project.
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Jill Lepore
Yeah, I like to think it's. Here's a beautiful cherry orchard. Let us walk through it together, and I will point out some trees and some different species of cherry. Some of these trees are flowering right now, and others are having a down year. All historical writing, whether it's by a historian or a lawyer or anyone else, you know, it involves acts of selection. But it's one thing to go fishing in a sea for just one kind of fish, and it's another thing to kind of dive in and swim around and watch what happens to be down there.
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Host (Likely Dahlia Lithwick)
So I wonder if we can talk for a minute about, you're very clear. You announce at the outset of the book that this is not intended as a refutation of originalism. And we're going to get to in a moment what it is, but it actually reads as a pretty thorough reputation of originalism. Jill. And I know you were on the historian's brief in Anderson, the Colorado disqualification case. I know you have very, very fully realized, complicated ideas about the sort of flaws of originalism. So I'm very much wondering where the shadow of originalism figures into the decision to write this book and how you wrote this.
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Jill Lepore
I think the book tries to historicize originalism and in that sense is a refutation of one of originalism's claims, which is that originalism is original. It's not original. Just empirically, that is not so, and it's worth thinking about that. That doesn't mean you can't still defend originalism on other grounds. And I think many people who subscribe to whatever variety of originalism they subscribe to do so in great good faith and in the interest of justice and fairness and oftentimes in the interest of democracy. I think there's a lot of bad faith on all sides of jurisprudential questions, but there's a great deal of good faith. So part of that disavowal of seeing the book as a polemic that aims to refute originalism is just a commitment to say if we accept the importance of a Constitution that we do have sovereignty over, that the people created, the people can amend, the people can ratify, the people can replace, then we have to be willing to accept that there are going to be different interpretations by different groups of people of it, and that what's necessary is to engage in argument about those interpretations. Where you come up against a wall with originalists is the. The claim that originalists make, which is very different from what I just set out, which is that originalism is the one true and only way to interpret the Constitution that forecloses constitutional debate. Right. By its very nature, that's in defiance of the principles on which the country was founded.
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Host (Likely Dahlia Lithwick)
So I wonder if we can talk about sort of the big animated idea of a book about what it means to amend or to not amend the Constitution. And I think the book is sort of deliberately rooted in this paradox, right, of permanence and impermanence. You talk about brittle as bone, hard as stone. You know, how do you have a kind of immutable roadmap for democratic self governance that also contains the seeds of its own demise and one of the themes that you pull out is that the amendment process, like mending, like hemming, was seen as a part of a natural, you know, long progression of repair, refinement, alteration. It wasn't seen as, you know, sandblasting words carved into stone. It was seen as, we have to have a kind of malleable way of thinking about governing ourselves. And that, of course, has all but disappeared. So I wonder if you can talk about that tension both as. Like, this metaphor throughout the book of, you know, machinery on the one hand and weaving and sewing on the other hand, but just this tension that I don't know that it was an enormous tension for the people who wrote the fifth Amendment.
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Jill Lepore
Yeah, I really wanted to reclaim and reacquaint readers with the idea of amendment, or what I call in the book the philosophy of amendment as a founding American democratic and constitutional principle, and one that if we care about history and tradition, we ought to care about the ways in which we have wandered from that tradition. We could say, you know what? We don't believe in amendment anymore as a people, and amend the Constitution to kill Article 5, the amendment provision of the Constitution. We could do that. But just sort of watching it die is, I think, a problem if the very legitimacy of a written constitution historically. And we go back and read the state constitutional debates in the 1770s and 1780s, even before the convention in Philadelphia in 1787, you discover that this philosophy of amendment was really central to people's willingness to even have written constitutions. It was a new technology. England still doesn't have a written constitution. Sure, written constitutionalism has really spread around the world, and we expect it, and it seems normal, but it has spread with the idea of amendment. And yet in the United States, we have this very odd situation where while we continue to amend our state constitutions, we haven't amended the U.S. constitution in several generations. There seems no immediate prospect of doing so. And I think there are real questions about constitutional legitimacy when a Constitution becomes unamendable. But I also think 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, a kind of inherent notion of justice. The word itself, you know, mend and amend, which have the same roots, testify to something that I really believe in, about people, about political orders, about fundamental law, that things can be made better and we don't really have to get bound up with what have become more frequent key terms for understanding change over time. So amendment really was this crucial 18th century idea. The 19th century gets bound up in the idea of progress. Increasingly, that comes to mean technological progress. Then it is bound up in the idea of evolution. And, of course, then we start thinking about the Constitution in terms of evolution. The 20th century is obsessed with growth, economic growth, and our centuries obsessed with disruption as a form of change. And those ways of understanding how change happens all. You know, they have really interesting histories. I'm fascinated by each of them. But we've kind of left the idea of amendment behind. And it is meant to be the thing that you can do so that you don't kill one another. And that's what's so beautiful about it. Right. Like, this will be the protection against insurrection against the United States devolving into insurrectionary politics. 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. You know, there's a reason the most important amendments of the Constitution come out during and immediately following the Civil War. But I also think, and I have. I am kind of moved by your invoking the sewing machine and the textile stuff, because that really matters to me. And, you know, I think one way that I came to this project was just thinking about when my kids were younger, every year we would have a constitutional convention. Just this time of year, you know, we're teaching, speaking right after Labor Day, we'd have a constitutional convention at the dinner table. And we had this constitution that we pulled out and we'd revise it every year. It'd be an amending convention because mainly, like, people whose job was last year to do the dishes don't want that job again this year. But what they do want is a later bedtime. They want to move their bedtime by half an hour. They want more screen time or whatever. And, you know, we're terrible. The kids kind of have to make the case, you know, and then we sort of vote on it, and we put it on the refrigerator for the year. And it is. We can amend it between Labor Day and the next Labor Day. Anyone who wants to can call for a Constitutional convention, but it's a lot of horse trading. There are kind of competing interests. So I found that really powerful as a parent, honestly, to just think about a family as a political unit that has to find a political settlement amidst differences and to think about household governance as a form of civic education. Okay, I sound like I'm, you know, in a Rockwell painting from 1956, but I actually really loved Doing that. I love vernacular constitutions.
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Host (Likely Dahlia Lithwick)
A couple things that I'm really struck by. One is that, like, because of soundproofing, I'm in my husband's workshop, and he works entirely, Jill, in, like, textiles and weaving. And so I'm surrounded by, like, bits of thread. And, you know, when I sent him some of your lines about, you know, how simple it is to create a seam and rip out a seam, you know that this is the work of an artisan. And that's such a different way of thinking about constitutional amendment than what we are now given, you know, which is, as I said, sacred tablets from a mountain. And so I think that it's such a moving metaphor to me.
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Jill Lepore
I think it's also important historically, I would make the claim that, like, I happen to be, you know, I raise sheep. I have a lot of wool around the house. I'm also a quilter. Like, these are things that are in my kitchen all the time. But I also think it's important to remember that is the 18th century, you know, everybody was, you know, spinning wool all day long, carding wool, dealing with wool, dealing with textiles, sewing, mending their clothes, knitting socks that, you know, and these are things just, you know, the number of households that had spinning wheels, the number of households that had looms, that if we want to think about the original meaning in the 18th century of the text, we actually really are required to think about textiles and the sort of twinned history of mending and amending and texts and textiles. So just a delight in this about your husband. Like, that comes from someplace very personal for me, but it also comes from the fact that I live half my days in the 18th century as a historian and also is this person who just loves these sort of artisanal crafts.
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Host (Likely Dahlia Lithwick)
Right. And I guess, you know, it flows immediately from what you just said, how freighted by gender, by race, by class, questions of, you know, who's doing the weaving and who's doing the spinning and who is not at the Constitutional Convention and who gets carved out. Which sort of brings us back to what you said at the beginning of whose history is being told. And I guess I'm wondering, you know, to the extent that history is always told by the victors and constitutional history is always told by its architects and their admirers, this book, at every turn, is talking about the people who just got hacked out of the business of making the Constitution, making the rules for how the Constitution works, making the rules about how to amend the Constitution. And then you put forth this gorgeous, I think, notion that Everyone who was going to a festival or submitting a petition or attending a protest or attending demonstration or the thousands of other ways that they were not at the table, but they were participating in amending, and they are not credited. Right. As you say in the book, you know, we quote the Federalist Papers. That's about the extent of it. You know, we quote dictionaries with the understanding that people didn't consult them. So this feels like it's very, very much animated by a like, no, I would like, as you said, to walk through the orchard and show you everything that is going on. And it's interesting because if you approach it, the. You approach it, Jill, it does feel. And you've got this gorgeous section on Victoria Woodhull, who eventually ends up wanting to run for president, but she took the position in 1871. You didn't have to amend anything. Women had the right to vote, in her view. This feels like Ruth Bader Ginsburg saying, it's right in there. It's right in there. I'm just kind of pulling at it, if we want to use our string metaphor again, but that this is really a way of saying, like, we are all of us in the Constitution for the jump and that all of these people were participating as much as Ben Franklin.
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Jill Lepore
Yeah, they're absolutely participating. And for sure, the ways in which they participate are less well documented, they're harder to find, and they had less of an immediate effect in the political history of the moment, in the constitutional history of the moment. But insofar as we construct meaning for this Constitution by excavating its past, we owe it to people who are involved in those conversations who were not heard in their lifetimes. We owe them our ear. And that's sort of what I am trying to do here, is to just say, let's listen. What was Victoria Whittle's argument? Shouldn't win. But if you actually take and consider all the petitions, say, written by enslaved black men in the 1770s and 1780s to their state legislatures, to Congress, that is a body of constitutional views that really, there can be no legitimate excuse for ignoring now. Right. Those papers were filed away. A lot of them have been lost. But those that survive carry meaning. They tell us about the public and the public's understanding. They tell us about the nature of a contest over meaning that ought to matter to us. And, you know, unless we widen the aperture of the camera that we use to look to the past, we will only ever see ourselves.
- [24:54]
Host (Likely Dahlia Lithwick)
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- [26:07]
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- [27:10]
Ryan Reynolds
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- [27:45]
Host (Likely Dahlia Lithwick)
Let's return now to my conversation with Jill Lepore. Some of this work is rooted in a database you were assembling at the Amendments Project. I saw this lovely quote from the NEH that calls the assembly of this database, an archive of failures. And then it says, you know, you're attempting to quote, recover a lost tradition of constitutional tinkering and to rekindle American constitutional imagination. I sort of love this idea that you are culling all these amendments, the sort of land of constitutional misfit toys, if you will, in order to, as you say, not just see better like who we were, but to see a much bigger, more capacious view of who we are and we could be. And I'd love for you to talk about sort of what is the one to one correlation between some of these amendments and what you think we've left behind.
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Jill Lepore
Yeah, so the amendments project came about because I wrote this book that came out in 2018 called these Truths. It was a history of the United States. There's a fair amount of constitutional history in it because I don't know if you remember when this happened, but constitutional history used to be taught in history departments and now it's really not, and moved into law schools to the degree that it's taught. And so a lot of like big history books, to the extent that there even are big history books, really just have very little about the Constitution in them. Even, you know, my kids high school history textbook was really kind of a social history textbook. And the, you know, the apush, the American history advanced placement exam is like really basically social history, a little bit of political history, maybe presidential history. So I had put a lot about the Constitution and readers really responded like, oh, I never knew what Plessy v. Ferguson was, or you know, just, just basic, you know, kind of the all star hits of cases. And so I decided to do more in my teaching with constitutional history because I felt like this hit a nerve. This is important. And then I wanted to hold like mock constitutional convention with my students. And so I wanted them to write amendments, propose amendments for the convention, our convention. And I was writing up an assignment sheet like, okay, go investigate in the archives previous efforts to do whatever it is that you want to do. Has anyone tried to do this before? Let's say abolish birthright citizenship or abolish the electoral college. Right. And it turned out there was no real way to find that out. Like there was no. Just like congress.gov, there was no data set that the Library of Congress put out. There's a kind of project the National Archives had done at one point, but it was basically unusable. So this just kind of infuriated me. And I remember reading the dissertation of the guy who first tried to put Together all the failed amendments in the 1890s. And he says, you know, these actually are like as good a record as we could possibly have. A kind of census of the political ideas of the American people, the constitutional ideas of the American people. If you just like look at all of these, it's an incredible set of data. And so I got funding from the NEH from which I'm extraordinarily grateful, and did this project with a team of amazing research students. And then I found it so interesting, like, actually look at the stuff. I was like, what if you told a story of the Constitution through these efforts, you know, all but 27 of which fail? What if you just tried to use that as your historical record instead of the five things that originalists look at? What if you just blew that up and said, let's look at this. This is a good starting place for an understanding of what people have wanted. And the book was really a product of that excavation.
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Host (Likely Dahlia Lithwick)
The book sort of begins with the premise, and I think we all understand it to be true, that the Constitution is fundamentally now unamendable. And this is variously blamed on, you know, the rise of the two party system or political polarization or a broken Congress, but can just give us the sort of quick and dirty of why the math no longer maths for amending the Constitution.
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Jill Lepore
I remember reading this great interview that Justice Antoninsk Lee gave where he said, you know, when I started out as a lawyer, I really did believe in Article 5 and that Article 5 could work, that it would be possible to beat even. What are these two high bars, right? A super majority in both houses of Congress, two thirds. And then you need a super majority, 3/4 of the states to ratify. And there are other ways to do it, but they haven't really been used. And he was like, yeah, I really believed in that. And of course, when Scalia was a young man, the Constitution was amendable. There were four amendments ratified between 1961 and 1971, really at pretty frenetic pace, a real burst. And then later in his career he's like, I went and did the numbers recently and it would take only 2% of the population of the country to defeat any particular amendment that would be at the ratification stage. It's easier to imagine an amendment getting through Congress, but the state ratification is where the game really becomes pretty bloody. So I am not a quantitative political scientist and can't give you the kind of Zibla Levitsky kind of analysis of that sort of. There is a kind of tyranny of the minority quantitative analysis to make. It's a sort of the same like, shell game that people use when they explain quantitatively why the electoral college is so bad for California and so great for Wyoming. It's about the equal suffrage in the Senate is a problem for getting anything through the Senate that has popular support. The party system was not invented at the time. The math was done in the first place. Right. And polarization that we experience now was inconceivable to the people who did the original math. You know, it's all of those things. But there's also the kind of atrophying of the imagination, a kind of atrophy of the constitutional imagination. That's why I started doing these constitutional conventions with my students. Because like, imagine you could actually change fundamental law in this country. What would you want and what do you think your fellow citizens want? Just to sort of like use a capacity for imagination that I think we mostly don't have. And, and even more than that, a willingness to sit down with other people and confront their capacity for imagination in the form of debate. So the other thing that really has died out, it's true the states still amend their Constitution largely, well, at this point, exclusively through ballot initiatives. After Dobbs, there were a number of constitutional amendments passed in the states, for instance, lively and important popular response to a Supreme Court opinion. But what the states too no longer do is hold constitutional conventions. The last full dressed state constitutional convention was in 1986, and that was Rhode Island. And there are a large number of states that have automatically scheduled ballot questions. Do you think we should hold a constitutional convention next year? And people just keep voting that down? They don't. And I don't think that's because they don't imagine their state constitutions could benefit from revision or at least reconsideration. But it's that they don't trust their fellow citizens to make decisions on their behalf. And that is another kind of atrophying, and I think an even more dangerous one.
- [35:12]
Host (Likely Dahlia Lithwick)
There's this hinge moment in 1971 that you talk about where two things happen. One is the birth of, or a sort of birth of originalism as construed by Robert Bork. And then it's also the last significant constitutional amendment amendment. And I think you're making the point that these two different strands combine to really signal both the death of Article 5 and then this soaring birth of judge made originalism as the only way the Constitution can change. You sort of argue that this is a hydraulic process, right? Like there's an amendment, there's the court. This has been a back and forth, and it has, as you say, inevitably interplayed with war and insurrection and other things. But suddenly, you know, the valve is shut off on constitutional amendment, and then the court just becomes singularly important. And I would love to hear a little bit about what it means to pour all of what you're calling imagination or creativity into kind of taking over the Supreme Court and the judiciary with this kind of frozen in amber theory that the bandwidth on which we can talk about the Constitution is, you know, the size of my little finger and no more. Because I think we're now living in the absolute, you know, peak moment of that. And you're seeing it in case after case after case, you know, including stripping judges from the ability to enact nationwide injunctions. This kind of originalism machine is almost perfected. And that moment in 1971 is the trigger or the tripwire in some way.
- [37:03]
Jill Lepore
That's absolutely the case. Although I think it's important because originalists would point out you did this first kind of thing to kind of go back further in history to say, a century ago. So think 1924 progressives, which unified both parties, both Republicans and Democrats were progressives at the time, were extraordinarily successful at amending the Constitution. In the Progressive Era, they get through four massively important constitutional amendments between 1913 and 1920, so ending with the 19th amendment. And in 1924, they think they're going to keep the record rolling. Congress passes the child labor amendment, essentially abolishing child labor in order to overcome two Supreme Court rulings that have found efforts to regulate or abolish child labor unconstitutional. And then that constitutional amendment fails in the states. And so people keep pushing and into the 1930s, when FDR finds that the conservative Supreme Court is striking down his New Deal, he considers and his advisors strongly suggest to him that he could constitutionalize the New Deal by constitutional amendment the way the progressives constitutionalized their agenda in the 1910s. And FDR, who had seen his wife go through this unsuccessful effort to get the child labor amendment ratified, and the tremendous organizing by wealthy corporate interests to defeat the child labor amendment, he just says, like, that will take too long. The country's still in a depression. You know, it just. It takes a small number of millionaires, these were mere millionaires at the time, to defeat any constitutional amendment. I'm gonna win the court instead. And so a lot of historians, I think, fairly and rightly blame FDR for the death of Article 5. Because he abandons it and says, look, we can use the courts in this way. And then that tradition continues and is rewarded in Brown v. Board of Education. So civil rights activists who really have no choice but to go to the court, unlike fdr, FDR had a different choice. But civil rights activists just don't have the votes because of disenfranchisement. So it works for liberals and for civil rights activists throughout the 50s and 60s under the Warren Court. And originalism, as Bork is beginning to describe it in 1971, he doesn't use the term at that point, is actually a reaction to the judicial activism of the Warren Court. And originalists at first say, you know what we really need? We really need Article 5 to work. But if we're not going to be able to get that to work, we need to defeat a liberal court by this other method, which is insisting that everything that they do is judicial activism and everything that we do is constitutional restoration. We're restoring the original Constitution. And it's really just like a. Gets a really interesting rhetorical move. The era that you opened up with 71 to the present. You see that originalists, at the same time as they're beginning to elaborate a theory that by 1980 is called originalism, are actually actively trying to pursue Article 5amendment. Especially the balanced budget amendment is a really important priority for fiscal conservatives in the 1970s. By 1979, they're quite close. Rose to enough states to hold a constitutional convention for the purpose of a balanced budget amendment. Reagan endorses a balanced budget amendment in 1982. It passes the Senate, but not the House. The House controls the budget. So it's a much harder, harder sell in the House. But all of that gets tangled up with Roe because the amendment that social conservatives really can't get anywhere with is a constitutional amendment to overturn Roe, which they propose, you know, immediately upon the issuing of that decision. And so by the time you get to the 1980s, there is this kind of curious and unexpected wedding of fiscal and social conservatives around originalism because of the failure of both the balanced budget amendment and of right to life amendments.
- [41:07]
Host (Likely Dahlia Lithwick)
You mentioned this, I think, right at the top of the show. But. But I'd love for you to amplify a little bit. That one thing that American amendment project is meant to do is be a kind of a release valve for violence. Right. The idea that the entire American experiment is born of violence. The trauma of the amendment process is in response to violence. Again, this peaks after the Civil War. And I think I Wonder if, you know, we're in this such an incredibly fraught moment, Jill, where you can't escape the feeling that we are going to tilt into violence at any moment as a sort of corrective for the idea that everybody is stuck. And I guess it's. You're going to say it's the opposite of imagination, Right. That violence really is what happens when you can't imagine anything different. But it does seem as though this progression from the process of amending, correcting, ripping the seam, starting again as a cure for, you know, violent overthrow of the government is not intuitive to me that amendment and violence go hand in hand, and I'd just love for you to unpack it.
- [42:30]
Jill Lepore
Yeah, I mean, try to cast your mind back to 1776. Right. We're nearing the 250th anniversary of the Declaration of Independence, but before that were the first state constitutions. And they were written in the midst of the war, right? Like, they had to write them because there was a war. Their colonial charters, like the royal governors, like, fled the fled. They didn't have a government anymore. The provincial assemblies were often appointed by the royal governors. There was no government. The colonial charters were defunct. So people have to write these state constitutions, and they write them down because their charters are written down. But then they're sort of like, well, wait, we write this down. We're in the middle of a war, which is the war that we needed to do to change our fundamental law to get rid of our charter. You know, my son just died in battle, and I want this thing that we write to not be lethal in that way. I want us to have a way to fix this without people having to die for it. It's a very, I think, close to the bone feeling of political desperation in the midst of a revolutionary war to say, we're going to write down what our rights are. Most of these state constitutions are preceded by declarations of rights. We're going to outline a frame of government. And not all the early state constitutions, but then some, and most notably Massachusetts, when they send these to the people to ratify, the people say, we can't ratify that unless there's an amendment provision in here because we do not want to die again. We do not want our sons, our grandsons, women killed in war, our children, ourselves, our homes burned. We do not want to suffer the fate of an unamendable frame of government. And we, not you, you, the legislature, we the people, have to have the right to do that amending. And this will be how we can comply with, agree to consent to a written form of government. Which is a dangerous thing, right? It's a beautiful and important thing. You know, Thomas Paine said the beauty about of the US Constitution is I can put it in my pocket, I can pull it out and I can tell my ruler, you don't have the authority to do that over me. As if it were that simple. Sadly at the moment it's not that simple at all. But that compared to, you know, the colonists grief with Parliament was that parliamentary taxation was unconstitutional. They use that word all the time. And Parliament said what do you mean we did it, therefore it's constitutional. Like we don't have a written constitution. So like the importance of writing down fundamental law was an urgent political moral. We would use the word existential concern. And yet the importance of avoiding more war, further violence, that was the genius of amendment. And that if you think of, you know, people often compare the American Revolution and its constitutionalism to the French Revolution and its Constitution. The French Revolution just kept revolving, like they just kept revolving. And the Constitution was there to provide stability but, but change through peaceable means. And I think we really underestimate the horrors of a war in your own backyard where you are fighting, your children are fighting, women are being raped. To not want political violence down the generations is a deep, deep moral commitment to which we owe a great deal of obligation.
- [46:06]
Host (Likely Dahlia Lithwick)
And I guess the bookend to that of course is. And you're pretty fulsome in the book about you can amend the Constitution in an effort to both react to and stanch the bleeding of violence. That's the post reconstruction amendments and the courts and the congress can just ignore you. So it is not as though it follows.
- [46:29]
Jill Lepore
No, it's not perfect. And people often say like, like, did you just love all these 12,000amendments? No, like I wouldn't have voted for most of those. It's a principle, right? Like if you believe in the principle and if you think the principle's important, having it just be notional is terrifying.
- [46:49]
Host (Likely Dahlia Lithwick)
More in a moment with Jill Lepore.
- [46:52]
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- [47:39]
Host (Likely Dahlia Lithwick)
And we are back with Jill Lepore. I think we have to talk for one minute about the President, although it sort of is stepping on the buzz of having this, like, very lofty conversation about constitutional imagination. But I do think that the danger that arises when amending is not an option. And one of the dangers, of course, is that you just change the Constitution through presidential power. We are speaking in a week that, you know, the President is saying, don't care what the Constitution says or Posse Comitatus or the Insurrection act just going into Chicago. And I know those warning signs were already present when you were writing the book and thinking about this book and now as you push it into the world. But is there anything that you can sort of reflect on in this moment when it does feel as though democracy is kind of drowning in this miasma of originalism and unitary executive theory and it turns out that the courts and the law and the Constitution were all just ideas that had no force. That has surprised you, has anything about the last couple of months and the way the President has kind of claimed the mantle of there's one amender of the Constitution and it's this guy. And that's where we are.
- [49:06]
Jill Lepore
Yeah, it is this guy. And one thing that's important to note is this is another area of its authority that Congress has abdicated. Right. Like the power to declare war, like the power to make treaties. What Congress is doing by way of thinking constitutionally and. And engaging in a conversation about possible amendments to the Constitution is zero. There were years where a lot of it is just showboating and trial ballooning, but there were a lot of constitutional amendments proposed by members of Congress and they don't even bother to do that anymore. Unless it's kind of trolling. Like there's a certain kind of trolling constitutional amendment proposition. But 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. The President doesn't need to sign a constitutional amendment. They do that sometimes as a matter of political theater. But 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 framer.
- [50:19]
Host (Likely Dahlia Lithwick)
I think I promised listeners that we were going to end on, I don't know if hopeful note, let's call it imaginative and split the difference. But, you know, we started this conversation talking about how this book is and isn't an attempt to reclaim the Constitution and constitutional history and constitutional sort of participation back from the cold dead hands of originalism. And you know, we struggle on the show whether to call it popular constitutionalism or what to call it, you know, the notion that every single one of us who is talking and listening about the Constitution gets to have an opinion and has skin in the game and is part of this project. And I confess, a lot of the time I do find myself struggling, Jill, with the feeling that that ship has sailed, that nobody is interested in having that conversation anymore. But here you are telling me that the Constitution was intended and has been a work of amending, of mending, of repair, of perfecting, of rethinking and reimagining. Can you just, in the closing moments here, sort of talk me off my little nihilist ledge that suggests that there's nothing left for the Constitution to do to heal this moment, Tell me what it means for people to understand that the Constitution is theirs to mend and repair.
- [51:53]
Jill Lepore
So I think there is an opportunity at just this moment. I think when we think about 2026 as the 250th anniversary of the Declaration of Independence, we would do well to think of it also as the 250th anniversary of American constitutionalism. The state constitutions, earliest state constitutions date to this era. And when I drive home, I go under a highway underpass where most days of the week there are people standing there holding from above on the overpass a homemade banner stitched together, bed sheets that read in paint, save our democracy, Uphold our Constitution. It moves me every time I go under that bridge, under that overpass. And I think a lot about the people I met. In 2009, I was reporting on the Tea Party movement for the New Yorker and wrote a short book about the Tea Party and how much the Constitution meant to them and how similar that is to the way people at the no Kings rallies, some of which I've observed and listened to. I've watched more of them online talk about the Constitution and. And 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, constitutional language, constitutional amendments in honor of the 250th. This is a very goofy, nostalgic, possibly wildly impractical and naive suggestion. But there is a great deal of interest and concern about the Constitution across political parties all over the country, in little towns, in big cities, in neighborhood parks, on park benches, in YMCA basketball courts. I think institutions that can host events like public libraries and elementary schools that are unused in the evening could really propel a revival of the kind of citizen gatherings that are necessary for a Constitution to bear meaning.
- [54:10]
Host (Likely Dahlia Lithwick)
And the sheets on the underpass are stitched together, she said. Jill Lepore's brand new book, we the A History of the U.S. constitution, comes out on September 16, published by W.W. norton. It is a really just exquisite read. Jill is the David Woods Kemper, 41, professor of American History at Harvard and professor of Law at the Law School. Jill, it has been just such a treat and I wish you just best of luck and only joy on your book tour. Thank you for being with us.
- [54:48]
Jill Lepore
Thank you so much. What a treat to talk to you.
- [54:56]
Host (Likely Dahlia Lithwick)
And that is all for this episode. Thank you so much for listening in and thank you so much for your letters and questions. Keep them coming. We are reachable by email@amicuslate.com you can always find us@facebook.com Amicus Podcast. You can also leave a comment if you're listening on Spotify or on YouTube. Or you can rate us and review us on Apple Podcasts and Apple Amicus plus members. The band is back together on today's Amicus bonus episode. Mark Joseph Stern and I are going to attempt to process the many news stories from the longest, shortest week in the law. And it's just bench slapping all around the LA National Guard decision and what it means for Chicago, Harvard University's win against Trump and why Judge Alison Burrow's decision matters and why Justice Brett Kavanaugh is trying to mollify lower court judges this week. You can subscribe to Slate plus directly from the Amicus show page on Apple Podcasts and Spotify. Or you can visit slate.com amicusplus to get access wherever you listen. That episode is available for you to listen to right now. We'll see you there. Sara Burningham is Amicus Senior Producer. Our producer is Pat Patrick Fort Hilary Fry is Slate's Editor in Chief, Susan Matthews Executive Editor Mia Lobel is executive producer of Slate Podcast and Ben Richmond is our Senior Director of Operations. We will be back with another episode of Amicus next week. What do you think makes the perfect snack?
- [56:45]
Mint Mobile Advertiser
Hmm, it's gotta be when I'm really craving and it's convenient.
- [56:49]
Host (Likely Dahlia Lithwick)
Could you be more specific when it's Cray venient.
- [56:51]
Mint Mobile Advertiser
Okay, like a freshly baked cookie made with real butter, available right down the street at am, pm. Or a savory breakfast sandwich I can grab in just a second at am, pm.
- [56:59]
Jill Lepore
I'm seeing a pattern here.
- [57:01]
Mint Mobile Advertiser
Well yeah, we're talking about what I.
- [57:02]
Jill Lepore
Crave, which is anything from am, pm.
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- [57:14]
Emily from Slate Money
Hi, it's Emily from Slate Money. Are you ready to learn something new? This fall, Slate Money is featured in Apple Podcasts Learn Something New collection this September and to celebrate, we are offering an extended two week free trial of Slate plus, exclusively on Apple Podcasts. As a Slate plus member, you'll get ad free listening on every Slate show. Get sharp, clear legal analysis on Amicus, smart, funny takes on the Zeitgeist from Culture Gabfest, fearless political commentary from Political Gabfest, and of course, debriefings on the latest economic headlines from Slate Money. That's the podcast I'm on, all uninterrupted. Plus you'll unlock bonus episodes across Slate Podcasts, deeper dives, candid conversations, and more of the content you love. Don't miss out. Try two weeks of Slate plus for free now on Apple Podcasts or visit slate.com moneyplus to get access everywhere you listen.