Loading summary
Transcript41 lines
- [00:01]
A
Hey there, it's Shemita. I am still out on parental leave, but in light of the Fourth of July and the United States celebrating its 250th anniversary, we wanted to bring you this episode from our archives about one of our founding documents, the US Constitution. Enjoy. This is in conversation from Apple News. I'm Shemitah Basu. Today is the US Constitution too hard to change? Historian Jill Lepore has spent a lot of time studying and writing about the U.S. constitution. And she says there's one big problem with it, a problem that feeds many other issues with our politics. Right now, we're not amending it enough.
- [00:52]
B
We have really abandoned the practice of convening to deliberate over fundamental law. As citizens. There's a vicious circle in which partisanship and polarization make amending the Constitution more difficult. And failing to amend the Constitution makes polarization and partisanship worse.
- [01:09]
A
Jill has spent the past few years working on the Amendments Project, a catalog that attempts to compile and classify every single attempt to revise the US Constitution from 1789 to present day. And that process has yielded a fascinating archive of woulda, coulda, shouldas throughout our nation's history.
- [01:29]
B
If you look at all the failed attempts to amend the Constitution, together, they constitute kind of an incredible record of the political yearnings of the American people. Just because amendment is almost impossible to achieve doesn't mean that what people propose is irrelevant, right? Like it actually then becomes a kind of index of the popular will.
- [01:48]
A
Jill is now out with a book called we the A History of the US Constitution, in which he makes the case that the modern unwillingness to amend the Constitution underlies many of the challenges we're now facing. Polarization, power struggles between the branches of government, and a deep sense of democratic fatigue. And a quick note here that Jill and I spoke before the fatal shooting of Charlie Kirk and the subsequent renewed conversations about free speech and First Amendment rights. So you won't hear us discuss that. We started our conversation by talking about how the Constitution is still changing all the time, just not through the formal amendment process.
- [02:29]
B
The idea of amendment is you should be able to make fundamental changes as a people using this mechanism, this little special device that we have here. And if you can't, you're gonna have to seize power in other ways. So the end runs that we have made around our broken amendment provision are one most frequently over the course of American history, during eras when it's too difficult for whatever reasons to do with partisanship generally to amend the Constitution, people go to the courts instead sure. Go to the Supreme Court, inst. And the Constitution is changing all the time. The court changes its interpretation of the Constitution all the time. And generally the pattern works. Eventually, people get really fed up with the court having all that power. The court loses legitimacy. There's a kind of political revolution. An amendment again becomes possible for a while.
- [03:18]
A
So you're saying it's a bit cyclical for.
- [03:20]
B
It's a bit. It's sort of hydraulic. Yeah, yeah. I mean, the Constitution's gonna change. Right? It's just gonna change. Like, circumstances change. And if it isn't changing by amendment, it's gonna change in another way. At the moment, sure. The Court is changing the Constitution all the time, but at the moment, we're in this very weird situation where the President is changing the Constitution all the time simply by declaring it to be so. And there's nothing in the Constitution that provides for that. It is not among the duties of the executive to reinterpret the Constitution to suit a political agenda. But we are, in some ways in very new territory in terms of the executive authority over the Constitution.
- [03:59]
A
Yeah. I mean, I feel like the first few months of Trump's second term in office, the phrase constitutional crisis was being used a lot. Are we in a constitutional crisis? Does this justify. Does this categorize itself as a constitutional crisis? I feel like I'm not hearing that phrase as much anymore. I am hearing more authoritarian turn kind of language. I don't know how you feel about that as a phrase, constitutional crisis, but what does a moment like this reveal about the limits or the weaknesses of the Constitution as it currently stands?
- [04:35]
B
Yeah, I think, honestly, some of the fading away of the generally, I would say, pointless public debating of whether we are or not are or are not in a constitutional crisis is that the language of crisis is what has justified the usurpation on the part of the executive of so many powers of the legislative branch of our government? Right. So I write for the New Yorker, and I wrote a piece about the first hundred days of Trump's administration and of the second term, and I wrote a lot about the use of emergency powers, emergency declarations, which, you know, it's not that other presidents haven't declared emergencies and used emergency powers. And it is a way to bypass Congress and secure more essentially lawmaking power for the White House. And, in fact, Democrats did that first. Right. Like that. In terms of the modern overuse of emergency powers, that is on Democrats. But Trump's use of declarations of emergency and emergency powers just outpaces everyone else's by an extraordinary measure. And I think, therefore, talking about crisis is exactly how Trump has seized the kinds of powers that he has seized, in other words. So I actually think a lot of people kind of backed off talking about crisis, because talking about crisis, everything becomes an emergency. I mean, I argued in this, you know, we live in this era of emergency politics, and if everything's an emergency, then nothing is an emergency, and it's impossible to do anything.
- [06:08]
A
So, Jill, in this book, you write that one of the Constitution's founding purposes was to prevent change. Another was to allow for change without violence. It almost sounds like those two things are contradictory. So what do you. What do you mean by that, and what is the central argument that you're laying out here in this book?
- [06:28]
B
Well, one of the things we tend to forget is that written constitutions were new in the 18th century. They were a sort of innovation, a technological change. And when you write down fundamental law, there's a great advantage to doing so, and that provides stability even across generations. Right. We write this document for ourselves and our posterity, and it can endure and provide stability and predictability. And it also holds rulers accountable to the fundamental law because it's stated, you can, you know, wave a constitution and say what you're doing is unconstitutional. You can point, you know, Tom Spain said, like, you could put it in your pocket. England has an unwritten constitution, and this was a big grievance of the colonists during their struggle against parliamentary authority. So here's this great idea. Look, we're going to write it down. We want to see the fine print. What is the government we are setting up? What are the rules? What are the powers of the different branches of the government? We can inspect that, and then we ourselves, the people, will ratify it. So that's the sort of preventing change part. But at the same time, the people who were framing this document and discussing whether or not to ratify it knew that there's also kind of a problem when you write something down, because it can't change. And before the Constitution was written in 1787, the Union of states that was the United States was governed by the Articles of Confederation. And the amendment provision of the Articles of Confederation was, if all the states agree, we can amend these documents. And nobody ever agreed. Members of the Continental Congress would propose amendments to the Articles of Confederation, and someone would put the kibosh on. Usually it was Rhode Island. People called it Rogue island because Rhode island wouldn't agree to anything. So the reason that we have a constitution is because the Articles of Confederation were effectively unamendable. That was a problem that the Framers of the Constitution knew going into it. So they borrowed a device that was used in early state constitutions, especially in Massachusetts Constitution of 1780, which was to provide a mechanism within the document for its own amendment. Not by the legislature, not by an executive, not by the judiciary, but by the people themselves by ratifying an amendment. And without that provision, the Constitution would never have been ratified because people really, there was a huge opposition to the Constitution and it really was the promise of amendment that made its ratification possible.
- [08:52]
A
Wow. I just want to note that you're referring to them as the Framers. I think a lot of people probably went to school and heard them being called the Founders or Founding Fathers even. Why do you use this terminology?
- [09:04]
B
Founding Fathers is an expression coined in 1916 by Warren G. Harding, who was a Republican and what we would call a constitutional conservative. And he was concerned about the then Progressive era Progressives, who were both Republicans and Democrats, altering the Constitution through constitutional amendment. Things like, at the time, people were quite concerned about the two newest constitutional amendments. One was that the people themselves could elect the Senate. Previous to that amendment, the U.S. senate was elected by state legislators, and Progressives had also gotten through the Progressive income tax. So constitutional conservatives who wanted to stop the amending wave of the Progressive Era tried to sort of offer up a new interpretation of the Founding that presented it as a kind of sacred, like Moses and the Ten Commandments, kind of engraved in stone moment. So part of that political move was to begin to describe the drafters of the Constitution who had always been referred to as the Framers, as the Founding Fathers. It's part of an era of constitutional veneration that we also associate with the First World War. It's a few years after that, 1924, that the Constitution is first put on display at the Library of Congress under glass and as a kind of shrine. And you could agree with all those things. You could say, you know what? I do think of them as Founding Fathers, and I do think it's a sacred document, and I do think it should be a national shrine. But that is a political position. Not, you know, and one could defend it. I don't happen to share that position, but I think it's worth questioning the origins of that language and the role that it plays in making our Constitution more brittle and less malleable than it was meant to be.
- [10:51]
A
Well, let's get more into that because that's, I mean, that's so much of the crux of the book also, I mean the idea of amendments being so crucial to the Constitution even existing in the first place, being agreed upon to exist. And yet, you know, as we know, there are 27amendments. Right. The process has successfully yielded an amendment 27 times. How would you say this process is functioning of adding amendments to our Constitution?
- [11:18]
B
Well, you could think about it comparatively. So there are 27amendments. The constitution's been amended really only 17 times because the first 10, the bill of Rights were kind of all at once at the same time.
- [11:28]
A
Right.
- [11:29]
B
And the rest really have come in bursts. We have kind of periods of amendment drought and then we have amendment frenzies and we are in one of the longer eras of drought. The Constitution was amended meaningfully last in 1971. The 26th amendment lowered the voting age from 21 to 18. Really something that comes out of the student anti war movement. Right. He could be drafted to go fight in Vietnam, but couldn't vote. The 27th Amendment was ratified in 1992, but it had first been proposed in 1789. It's not really a new idea. So 1971, that's a long time to go without amending the Constitution. There's also another way quantitatively to consider amendments. So compared to other national constitutions, the US has one of the lowest amendment rates. At some points in American history, it has had the lowest rate altogether. It is one of the most difficult constitutions to amend just in terms of the hurdles that an amendment must pass. And that is also true with comparing the US Constitution to state constitutions. You know, most listeners can remember the last time their state constitution was amended. Although to be fair, a lot of Americans don't even realize they have state constitutions.
- [12:41]
A
I was going to say maybe if they turn over their ballot and they're paying attention to those kinds of questions.
- [12:46]
B
Yes, state constitutions are amended all the time now just by ballot initiatives. If you think about after the Dobbs decision in 2022 that overturned Roe vs. Wade, a number of states considered in some ratified constitutional guarantees of reproductive rights. Say that's within people's memory. What states don't do anymore is hold constitutional conventions. That used to be extremely common. The last time any U.S. state held a constitutional convention was 1986. That is say a full dress constitutional convention. That was Rhode Island, Rogue Island, Rogue Island. And there are a number of states that have in their state constitutions the requirement that every. I think it's usually every 10 years the voters are asked on a ballot question, should we hold a constitutional convention? So A lot of states have been asked that question since 1986, and voters always say no because people no longer. It's not so much that I don't think people think there could be important changes to consider to their state constitutions, but we have really abandoned the practice of convening to deliberate over fundamental law as citizens. And that used to be a pretty kind of healthy way for do you know, people sometimes resent jury duty, but on the other hand, people really believe in jury service. Right. Like it is an opportunity to join with your fellow citizens to share in a civic duty that requires paying attention to evidence, deliberating what's true and what's not true, and coming up with a verdict. And I think that when people complete their jury service, they're very proud of it. And there's a kind of renewal in your faith that ordinary people should be making big decisions and participating in that civic activity holds us together. It's like a family reunion. Right. Like you. Oh, we are all together. Like, we do have things in common and we have a lot that we disagree about and we're different and we're alike and, you know, you could gripe about it, but the fact that it happens is a meaningful renewal of our basic commitment to govern ourselves.
- [14:46]
A
I really feel like there are two types of people, ones who really do not want to be called for jury duty, and those like me who are like, why have I not been called yet? I'm dying to be called. I would love to do this. Yeah, it's like this. Almost like some people might even have two sides of the same coin in themselves.
- [15:00]
B
Yeah, right. It depends on the time in your life when you call.
- [15:04]
A
Yeah, perhaps it does. I mean, I think that a modern day, close to modern day example that people have in their minds when they think about amendments and the amendment process is the era, the Equal Rights Amendment. This was an amendment that would have guaranteed equal legal rights regardless of sex. It was first proposed in 1923. It was passed by Congress in 1972, but it was never fully ratified. What does the story of the ERA say about how amendments and how the amendment process has functioned in American politics?
- [15:37]
B
Yeah, it says so much. It would be really fun just to write a book about, you know, the lessons of the era. But there's a few things that are interesting about it. So the ERA, in brief, as you say, introduced in Congress in 1923, three years after the 19th Amendment granted women the right to vote. In 1924, Congress passes a constitutional amendment, the Child Labor Amendment, which is Going to prohibit child labor. And the child labor amendment looks like it's going to be ratified instantly. This tremendous amount of support for it. Again, the Constitution has just been amended four times between 1913 and 1920.
- [16:09]
A
Yeah, we're in an amendment frenzy.
- [16:11]
B
It just feels like we're in a frenzy like. And I think the child labor amendment passes Congress the day it's introduced. Like, it's just like, oh, it's going to go to the states. It's like so obvious like. But the people who support the child labor amendment do not have a good ground game in the states. They don't set one up. They're overconfident. They're like, ratification is gonna be easy. Our problem was gonna be Congress. They know that public support for ending child labor is huge. What they haven't really thought about is how much money the national manufacturers who are interested in defeating the amendment. Cause they wanna be able to continue to employ children. Especially textile mills in the South. These people have enormous money and they're really good at political organizing. Successfully defeat the child labor amendment. And it's really kind of the end of the progressive era. So when you get to 1972, when that era finally passes Congress, it's almost the same story. It's a little heartbreaking if you're an ERA fan because it's the same thing. Like the problem was always going to be Congress. Once it gets to Congress, it's something like 80% of Americans support the ERA in 1972. Just ratified an amendment the year before 1971, lowering the voting age. This is just like a no brainer immediately. Just going to be a question of like how much time it gets to get through these state houses. But the proponents of the ERA had no ground game in the states and they did not anticipate the kind of opposition there would be in this case led by Phyllis Schlafly and the STOP ERA movement. And they are eventually defeated. And sometimes, you know, one of the arguments you can make as a historian is they really ought to have looked at the child labor amendment because there were lessons to be learned. But the thing is, amendment happens so infrequently that we actually don't learn the lessons. Like I don't think any political organization in the country really has any particularly good idea if you really wanted to run an amendment campaign. No one knows how to do that. Like in. No, in living memory it hasn't even happened. And I mean they're not going to do it because it's not possible. It's A waste of money and waste of energy. But, like, even if it seemed like there was a window of opportunity to do it, how would. How would you do it? No one knows anymore. So it's a weird way. It's like Madison always said. James Madison, we think of as the framer of the Constitution, the chief architect of the Constitution that we have that a danger of Constitutions is that the older they get, the more we tend to venerate them just because they're old. And then the less we're willing to change them when they need changing. There's another pattern too, which is like the less frequently we change them, the less able we are to do the work of changing them.
- [18:42]
A
Mm. Let's talk about the courts more, because you've mentioned them so many times now as part of this sort of informal process of changing the Constitution really is how we see it most often interpreted is through the courts and through the Supreme Court. I mean, I think it's fair to say that the current Supreme Court has a majority of originalists or originalist leaning justices right now. Your book central argument really stands in contrast to originalism. Can you start by just defining what is originalism and how did it emerge?
- [19:17]
B
Yeah, in general, it is the idea that the only fair, true, just and even democratic way to interpret the Constitution is to defer to the original intent, meaning, and especially understanding of the original Constitution. And the way then to do that is to determine that original intent, meaning and understanding. And what you need to do is look at a specific set of historical documents, the Constitution itself. Obviously, we should look at the Constitution, Madison's notes on the Constitutional Convention, the Federalist papers, which are 85 essays written by proponents of the Constitution explaining why it is the way it is. The records of the state ratifying conventions, those specific documents can be consulted to understand the meaning of the Constitution. So the idea is just like, okay, what we don't wanna do is just decide what do we need now? Because that would be judges acting as lawmakers. That would be judge made law. That is, I think, I hope, a fair description of what originalism is. One of the things that originalists claim is that originalism is original. That is to say, this is how the Constitution was always meant to be read. This is the method that the framers themselves intended. And that just doesn't bear up under historical scrutiny. And there are a lot of reasons for that. But I think that most people, certainly including the justices on the Supreme Court who are originalists or subscribe to originalism, do so perfectly in Good faith, sure. It may also happen to align with their political goals and their policy objectives. Originalism maps on very well to conservatism in its current form. But I take that all in good faith. I'm just trying as a historian to show originalism is an invented mode. It is invented in the 1970s and 1980s. It has a specific political and social
- [21:16]
A
history in the 70s and 80s. That's pretty recently.
- [21:19]
B
It's a fairly recent idea. There are eras in American history where it is popular to say we need to defer to the framers, but was not a thing, for instance, that Madison said it's not a thing. That would have been possible throughout the 19th century. The sources that originalists say are the only sources to use to understand the Constitution were just generally not available to most lawyers or judges in the 19th century. So it's an odd viewpoint, but it also has a lot to do with conservatives attempt to gain back some control over the meaning of the Constitution in an era when it was lost to them. So if you think about going back, the civil rights movement says, you know where we will gain civil rights. We're not going to be able to do this by amending the Constitution. We can't vote, right. How can we? You need an enormous amount of popular support to change the Constitution by way of constitutional amendment. We don't even have votes in Congress. What we can do is go to the courts. This is what an oppressed minority can do. That's one of the huge reasons to have a court and have the court have so much authority. Because when fundamental rights are being stepped on by state law or federal law, you can go to the court for a remedy. Liberals and civil rights activists are going to the court to change the Constitution. They completely abandon Article 5amendment. So if you want to say, like who abandoned Article 5 first in our modern era, really it is a civil rights movement and 20th century liberals. So when originalists frustrated by each of these opinions, the constitutional change of the 1960s, especially the establishment of the right to privacy that is made possible the decriminalization of birth control starting in 1965 and of abortion in 1973 with Roe v. Wade, conservative legal theorists say this is just the judges making law. This is not how the Constitution. This is the same thing that I'm saying that progressives have said in different areas, like, we don't like who's on the court. We don't like what they're doing. If you want to change the Constitution, like have something like right to an abortion, you should get an amendment passed. And so they, for a long time, are kind of endorsing Article 5, but they come up with a different plan because they're also discovering that they can't get an amendment passed. So conservatives are able to defeat the era, but another big push in the 1970s is for a right to life amendment.
- [23:43]
A
Right.
- [23:44]
B
And it doesn't succeed. So they don't have the votes to get through a right to life amendment. So there is a kind of long game that the conservative legal academy engages in, which is, you know, we're going to win a new argument about how to interpret the Constitution while we're also trying to take over the court and appoint conservative justices, which, you know, really starts happening under Reagan in the 1980s. So what they're doing is offering a new interpretation of the Constitution, but packaging it as if it's a restoration of the original and exclusively authentic and democratic way of interpreting the Constitution.
- [24:19]
A
Yeah. And to ask you to reflect a little bit on today's court and today's politics, what are the present day consequences of relying so much on judicial interpretation rather than Democratic amendment processes, I think
- [24:35]
B
it lies behind a lot of our political instability. It's not a sustainable system to kind of go through these periods of tremendous concern about the legitimacy of the court from either side. I think it is important to have a legitimate court whose legitimacy is understood and appreciated and admired. And I don't think we always have that because of the nature of this. But I also think it's the case that if you think about, like, when Trump took office and started with doge and firing tens of thousands of federal government workers and dismantling effectively the Department of Education and different parts of the federal government and different agencies. You could look back to another effort of the 1970s and 80s to amend the Constitution, which was the balanced budget amendment, which, like the ERA, had about 80% popular support, and Reagan endorsed it when he took office in 1982, it passed the Senate. Like the ERA, it looked like that would become the next amendment. And there was a lot of concern about federal government spending in the 1970s and 80s. And I'm not sure I think the balanced budget amendment would have been a good thing. But if you think about what Trump did when he first took office, that kind of gutting of the federal government, it is part of what Americans had been agitating for constitutionally for a long time and not getting. And so there is an insurrectionary feel to Trumpism. But insurrection was exactly what amendment was aimed to avoid. So if we live in an age that feels like it is dominated by insurrectionary politics. I think one reason for that is that we have abandoned the philosophy of amendment, which is meant to be a more peaceable change and one that involves the popular will being heard.
- [26:38]
A
You know, I've been thinking about this, about Trump's first term in office and how at that time there was also a lot of sort of pocket constitutions and sort of this as a. And I should say as a response to Trump politics, as a response to the waving of the flag, as a patriotic act. There was sort of this other side of Trump resistance, waiving their constitutions. What does the Constitution even mean in today's politics, like as a symbol? What. What do you think it means for people, and what do you think it should mean today?
- [27:11]
B
Yeah, you know, I. I've been thinking a lot about 2009 because I covered the Tea Party movement at the time.
- [27:18]
A
Yeah.
- [27:18]
B
So I spent a lot of time with people in the Tea Party here in Boston, which was just fun. Cause they were the Boston people and they were very into that, and it was very fun. But I was thinking about those people, some of whom I got to know real well at the time when I, you know, went to watch one of these new Kings parades, marches. And, you know, you see people engaging in the same cosplay. They've got their tri cornered hats, their Don't Tread on Me flags, Save Our Constitution signs. And a very sad thing is the Tea Party and the no Kings people don't talk to one another. And they are using the very same symbols and deeply care about the very same things in a fundamental way. And we have completely failed as a civil society to both celebrate those things that we share and set out at a dinner table, all the things we don't share, and find a way to have the meal together, all the same. One of the things I find very powerful about the idea of amendment is the word itself. It has the same root, obviously, as the word mend. And amendment is a term and an idea that embodies not just the idea of peaceful change, but change that is ethical and right and moral. In the way that we talk about mending your ways, that is like becoming a better person or making amends, making up for something, some way in which you've wronged someone. And I just find that very beautiful. Like, I think making amends and mending your ways are commitments, you know, good people make to themselves and to their communities. And how would we think about that politically? Not just constitutionally, but politically, these are probably my naive sentiments about the possibility of peaceful civil society. We don't have that. We have mass shootings with great frequency. We have a president who has said he doesn't believe his obligation is to uphold the Constitution. We have school board meetings where people seem like they're about to smack one another in the face over vaccine requirements. I don't think we are in any position to be mending the Constitution, but we're very, very ripe for mending our ways and making amends.
- [29:52]
A
Well, Jill, thank you so much for your time. I really enjoyed speaking with you.
- [29:56]
B
Thanks a lot. It was a lot of fun. Thanks so much.
- [30:01]
A
You can find we the A History of the U.S. constitution by Jill Lepore on Apple Books. We'll include a link to it on our Show Notes page. And every weekend you can find new episodes of Apple News in conversation in the Apple News app. Just tap on the audio tab, that's the little headphones at the bottom to find.