Podcast Summary

Podcast: On with Kara Swisher

Episode: How A ‘Brittle’ Constitution Broke U.S. Politics with Historian Jill Lepore
Host: Kara Swisher
Guest: Jill Lepore, Professor of American History and Law at Harvard University, author of We the People: A History of the US Constitution
Release date: September 8, 2025

Episode Overview

This episode features historian Jill Lepore discussing her new book, We the People: A History of the US Constitution, and exploring how the U.S. Constitution—a document now over 235 years old—has become “brittle,” nearly impossible to amend, and perhaps no longer suitable for the challenges of 21st-century American politics and society. With humor and historical depth, Lepore and Swisher trace why amending the Constitution has stalled, the consequences for democracy, and why foundational change now seems so difficult. They also look ahead, questioning if the Constitution is still relevant and what large forces like AI may mean for the next era of governance.

Key Discussion Points & Insights

1. Origins and Rationale Behind the Book

• After discovering constitutional history is often absent from modern education, Lepore began researching failed amendment attempts and realized that the history of “what we tried to change but couldn’t” reveals the evolution of U.S. politics.
  • Quote: "It was like a census of the dead... an unbelievable record of the political yearnings of Americans over the last centuries." — Jill Lepore (04:46)

2. What is Article 5 and Why Amending is So Difficult

• Article 5 is the section of the Constitution that allows for amendments. While state constitutions are often amended, the U.S. Constitution has not undergone meaningful change since 1971 (lowering the voting age to 18), making it unusually rigid among global constitutions.
  • Quote: "The Constitution hasn't been meaningfully updated in more than 50 years." — Kara Swisher (02:15)
• Lepore details how amendment activity happens in flurries, followed by droughts—often triggered when the Supreme Court blocks legislative action.
  • Example: After the Civil War, critical amendments passed; then decades of failed attempts followed.

3. The Article 5 Paradox: Innovation and Deeply Flawed Compromise

• Article 5 was a radical innovation, introducing an amendment mechanism purposely designed to escape the failures of the prior Articles of Confederation, which required unanimity.
• Article 5 also “wrote into the DNA” compromises on slavery and small-state power—deliberately putting off or entrenching certain injustices.
  • Quote: "Article 5 actually is a kind of pig's breakfast... it writes into it all the worst compromises of the Constitutional Convention." — Jill Lepore (15:14)

4. How Race and Politics Unravel “Constitutional Reform”

• Each surge in amendments (Civil War, Progressive Era) is followed by increased polarization and “constitutional droughts.”
• Key failed amendments (like the Equal Rights Amendment or a Child Labor Amendment) reveal how partisanship, money, and misinformation block reforms that enjoy popular support.
  • Quote: "Turns out it's really, really, really hard to overcome money in politics, partisanship, polarization... and misinformation." — Jill Lepore (17:20)

5. Supreme Court as Informal Amender: Power and Pitfalls

• Since the mid-20th century, advocates for rights (especially minorities) have relied on the Supreme Court for change, as formal amendment is impossible.
• The Warren Court interpreted the broad 14th Amendment robustly, expanding rights, but because these changes were “just” judicial, they can be reversed by future courts—see the end of Roe v. Wade.
  • Quote: "Not achieving those things via constitutional amendment means that they can always be reversed by the court." — Jill Lepore (25:34)

6. Originalism, Myth and the Digital Age

• Lepore disputes the idea that "originalism"—interpreting the Constitution as originally intended—is itself original. Founding-era figures changed their minds often.
• Originalist jurisprudence relies on an unusually literalist reading that, as legal scholar Jamal Greene argues, may derive from American religious fundamentalism.
• Ironically, originalism’s focus on niche historical texts is a digital-age phenomenon: "Originalism is really only possible in the digital age... you need a keyboard to tap out into a search bar what it is you're looking for." — Jill Lepore (28:56)
• Originalists also exclude perspectives from those oppressed (enslaved, women), narrowing history for political ends.

7. Trump, Executive Power, and the Constitution’s Limits

• Lepore believes Trump’s disregard for constitutional norms demonstrates how dangerous an unamendable, “fixed” Constitution has become—the president can claim new interpretations, and the machinery of party and state will follow.
• The courts have only checked him sporadically; he’s also been enabled by congressional abdication.
  • Quote: "We live in a system where what is constitutional is determined by the President of the United States." — Jill Lepore (35:15)

8. Is the Constitution Still Relevant? (Neil Katyal’s Expert Question, 42:54–46:47)

• Legal scholar Neal Katyal questions whether the Constitution, now nearly impossible to amend and outdated, is still legitimate or should be scrapped altogether.
• Lepore responds that anti-constitutionalism is as American as constitutionalism (Garrison burned the Constitution over slavery in the 1800s). She agrees its inability to be changed meaningfully raises real questions of legitimacy, but sees this as a civic and cultural failure as much as a legal one: Americans have lost the habit of coming together to deliberate and compromise.
  • Quote: "If Article 5 is not working, the Constitution's legitimacy is really to be questioned..." — Jill Lepore (44:01)
  • Memorable Exchange: Repeated jokes about "damn Rhode Island," the small state that often held up change, add levity.

9. AI and the Constitution’s Future

• Lepore sees the rise of AI—as controlled by a handful of corporate actors—as a transformative threat on par with any faced by the original framers.
  • Quote: "We are at the beginning of a new era in the human condition. And how is this 18th-century technology... going to rise to this particular set of challenges?" — Jill Lepore (47:37)
• She is working on a new book, “The Rise and Fall of the Artificial State,” about the intersection of constitutionalism and AI. Both agree that a handful of corporate giants—“those six, seven, ten people making all these decisions for the rest of us”—present a dire challenge for democracy.

10. Prospects for Reform: Is There Hope?

• Asked how to “fix” the system or what tree she would plant today, Lepore advocates for an Environmental Protection Amendment (first proposed in 1970).
  • Quote: “When is the best time to amend the Constitution? It’s the same time it is to plant a tree, which is 20 years ago.” — Jill Lepore (51:50)
• Ultimately, she hopes to inspire people to imagine a better constitution—and to recover the lost civic capacity to debate, deliberate, and amend as needed.

Notable Quotes & Memorable Moments

• On the Constitution’s “brittleness”:

  • "Madison warned... that constitutions become more brittle as they get old because people have a tendency to venerate them in the way that they venerate things that are just old." — Jill Lepore (30:55)

• On originalism:

  • "Originalism is really only possible in the digital age." — Jill Lepore (28:56)

• On tech and constitutional power:

  • "We are at the beginning of a new era... How is this 18th-century technology... going to rise to this particular set of challenges?" — Jill Lepore (47:37)

• On loss of civic culture:

  • "Americans just aren't going to sit down in a room with a bunch of people they disagree with and feel that they can work out fundamental law... we have lost [that]." — Jill Lepore (45:29)

• Light moments:

  • Multiple jibes about Rhode Island (the state that blocked many amendments): “Those assholes in Rhode Island, go ahead. The Rogue Island.” — Jill Lepore (16:09); and (45:29, 45:28)

• On the future:

  • "I’m really just trying to get people to be willing to imagine that they could have a better constitution." — Jill Lepore (51:53)

Timestamps for Key Segments

• Book genesis & amendment history: 04:27–08:05
• Explaining Article 5: 08:09–14:56
• Compromises over slavery, race: 14:56–19:36
• Supreme Court as informal amender: 22:47–26:47
• Rise & critique of originalism: 26:47–32:13
• Executive overreach, Trump & modern crisis: 38:02–41:14
• Neil Katyal’s expert question: 42:54–46:47
• Constitutionalism vs. AI: 46:47–50:26
• What now? Imagining amendment & future reform: 50:56–52:02

Summary Takeaways

Jill Lepore’s analysis reveals a Constitution made almost “brittle” by veneration, infrequent amendment, and ever-larger mismatches with U.S. political, technological, and social reality. While some changes (like the Civil War amendments) wrought a “second founding,” since the 1970s reforms have ground to a halt, and the Supreme Court has become the de facto agent of change—a system now deeply politicized and precarious. With big tech and AI looming, Lepore argues for a renewed civic effort—not just technical fixes—to reinvent American constitutionalism for a world the founders never imagined.