← On with Kara Swisher
On with Kara Swisher
How A ‘Brittle’ Constitution Broke U.S. Politics with Historian Jill Lepore
00:50:49
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A
This was some book. This took me a long time, I gotta say. Could kill a puppy with this book.
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B
Yeah, you could. I'm sorry about that.
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A
Hi, everyone. From New York Magazine and the Vox Media Podcast Network, this is on with Kara Swisher. And I'm Kara Swisher. My guest today is Jill Lepore. She's a professor of American history and law at Harvard University and the author of more than a dozen books. Her latest is we the People, a History of the US Constitution. Lepore's book comes at a particularly tough time for the Constitution. President Donald Trump has taken direct aim at it by trying to overturn birthright citizenship and defying Congress's authority over how the government spends money, which is pretty much at the center of the Constitution. Congress hasn't put up much of a fight to stop him. What a surprise. Mike Johnson is a toady. Neath neither has the Supreme Court. I would say the same about them. But despite what a lot of the justices might argue, the Constitution is not set in stone. It includes a way to make updates and revisions. And that's Article five. Lepore's book looks specifically at that process and its history. She argues amending is essential to the American constitutional tradition and that it's become almost impossible now. The Constitution hasn't been meaningfully updated in more than 50 years. At this point, I'm really excited to talk to Jill. Obviously, she's a great history professor and everything else, but she also has insight into the current moment because she's also really a smart person on technology. I've interviewed her about that before, and she certainly brings to bear a lot of the past and the future. Our expert question comes from Neil Katyull, the former acting Solicitor General of the United States during the Obama administration. He's argued more than 50 cases before the Supreme Court, and he's currently teaching law at Georgetown University. But before we get to our interview, I have a quick request for you listeners. We're taping a How to AI for business episode soon, and we want your questions like, how does Vibe coding work? What are the best uses of it in my daily workflow? Should I trust AI to protect my private business information? What is the best LLM service for me? What about hallucinations? And of course, the perennial Will AI take my job?
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Probably.
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Email your question to On Vox Media and you might hear one of our experts answer your burning AI query. All right, let's go to my conversation with historian Jill Lepore. Style, stick around.
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B
This episode is brought to you by On Investing, an original podcast from Charles Schwab. I'm Kathy Jones, Schwab's chief fixed Income Strategist. And I'm Liz Ann Saunders, Schwab's chief Investment strategist. Between us, we have decades of experience studying the indicators that drive the economy and how they can have a direct impact on your investments.
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We know that investors have a lot.
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Of questions about the markets and the economy, and we're here to help. So download the latest episode and subscribe@schwab.com oninvesting or wherever you get your podcasts.
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Support for on with Kara Fisher comes from the FIFA World Cup. The FIFA World Cup 26 is coming to North America next summer. It's the ultimate celebration of sports and culture. You can get closer to the beautiful game with a hospitality package that's closer to the action in the best seats and suites, closer to match day with world class food and entertainment, and closer to the experience of a lifetime. Book a hospitality package@fifaworldcup.com Hospitality support for this show comes from Smartsheet. Your team is innovative. Your team is ready to achieve the impossible. Innovative teams use Smartsheet to defy expectations, spur growth, and make the impossible possible. Smartsheet is the work management platform that allows teams to automate workflows and seamlessly adapt as their work evolves. Whether you're managing projects or scaling operations, Smartsheet gives you the tools to cut through chaos and reach your team's full potential. With Smartsheet, the extraordinary is just another day at work. Smartsheet Work with flow. See how Smartsheet can transform the way you work@smartsheet.com that's smartsheet.com.
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B
It is on.
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A
Jill Lepore, thanks for coming on on. I'm so pleased to have you here.
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B
Thanks so much. What a treat to be here.
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A
So let's talk about this book, which is not. It is. Well, it's tech related in some ways in odd ways. But your book, we the People is a history of the American Constitution and it's coming out while President Donald Trump regularly issues unconstitutional decrees as seen by the court. But why did you take on this topic and maybe talk about the process of writing this?
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B
Yeah, sure. So I wrote a history of the United States a few years ago called these Truths. And I got a lot of email from readers who were like, wow, there's so much about the Constitution here and I never had learned that. And I think that's because even I think about my kids, their public high school, their high school history textbook was a lot of social History and cultural history. And one of the things that really got dropped out was constitutional history, which also moved out of history departments, honestly, and is really only taught in law schools in most places. So I thought, well, I should probably bring more constitutional history into my teaching. And then I started doing that. And then I wanted to have a mock Constitutional convention with my students and I wanted them to draft amendments to the Constitution. And I had a research task for them which was like, let's say you wanted to abolish birthright citizenship or abolish the Electoral College, like find every time anyone has ever tried to do that before. What happened to those efforts? And it turned out they couldn't really do it. There was no obvious way to search for, through like an existing set of data about failed amendments. So I got some funding from the NEH and a few other places and started this amendments project, which was an attempt to just collect the full text of every failed US Constitutional amendment. But then I read a lot about these amendments and I spent a lot of time coding them and I thought, well, it is actually kind of like a. It's like a census of the dead. It was like an unbelievable record of the political yearnings of Americans over the last centuries. It kind of worked as its own miniature historical record. So I decided I'm going to write a history of the Constitution, but I'm going to keep in mind and pay attention to what I think is foundational to American constitutionalism, which is the idea that people have the ability to revise the Constitution.
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A
Revise it though, very difficult in doing so. I hate to have you do this, but explain why people would put amendments for people who are not schooled in the Constitution. Some people, most have a vague outline on it, but this is proposing changes to the existing original document.
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B
Yeah, I think most people have a sense that their state constitutions have changed in their lifetimes because there's a ton of amending of state constitutions. It's always now by ballot initiatives. So think back to Dobbs in 2022, a number of states introduced on their ballots measures to counter Dobbs, which is to say to constitutionalize a right abortion within a state constitution. But people do understand that state constitutions can be amended and that they are amended by the people, that it is not a legislative feat. Right. It has to go to the people. That is also how the US Constitution is set up. It's just that this is Article 5 of the Constitution. It just hasn't worked in quite a long time. And it has been difficult from the Start. So sure, there's a lot you could do to amend the Constitution. There are a lot of things you might want to change about fundamental law in the United States that can only be changed by amending the Constitution. So for instance, if you did want to say get rid of the Electoral College, you really have to have a constitutional amendment.
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A
So could you amend the Constitution to make it easier to amend?
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B
Yeah, and there have been a lot of efforts to do that. The most significant effort was during the Progressive era, you know, a little more than a century ago. So there are these weird things with amendments. They kind of happen in a flurry and then they don't happen for decades and decades and decades. So the 15th Amendment was ratified in 1870, the last of the Civil War, Reconstruction amendments. And then for decades people tried to amend the Constitution. They just couldn't get anywhere. Congress would pass laws doing things like establishing a minimum wage or a maximum hour laws, and the Supreme Court would. That was a very conservative Supreme Court. This is like, you know, 1890s, 19 oughts really supreme, really conservative Supreme Court struck all those things down. And so progressives tried to amend the Constitution and then achieve the ratification of four constitutional amendments between 1913 and 1920, ending with granting women the right to vote. And then there are droughts again. You know, stuff, a lot of stuff was proposed in the 1920s that didn't succeed. So there's this kind of weird pattern where like people just keep banging their heads against the Supreme Court. And when they keep failing with the Supreme Court, they eventually try to figure out whether they can get through an amendment.
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A
The last one that passed was, so.
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B
1992, the 27th Amendment, which is about congressional pay. But it was introduced in 1789. So in a way, in terms of like a new idea, I don't think it really counts. So 1971 was the 26th amendment that lowered the voting age from 21 to 18. You can really think of it as a product of the anti war movement. Right? Like if you're going to be drafted to fight in Vietnam and you don't have the right to vote. Right. So really 1971 is the last time the US Constitution was meaningfully amended and.
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A
One that you think was most interesting of the failed ones.
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B
You know, the era. The failure of the era had huge consequences.
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A
Equal Rights Amendment.
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The Equal Rights Amendment. It's introduced in Congress in 1923, three years after women get the right to vote. It passes Congress half a century later in 1970, at a point where people think, everyone thinks the era is going to be ratified really quickly. Like the last amendment was just ratified the year before. It seems like, I think something like 80% of Americans support the era. People begin planning to celebrate its ratification at the bicentennial, you know, July 4, 1976. So surely within four years, this thing will get through every state it needs to get through. It seems to go really well for a while. And then an opposition campaign is mounted by Phyllis Schlafly, the conservative sort of battle general. She found stop ERA movement. And I mean, I think you could like, it's at that point that Article 5, which is the amendment mechanism in the Constitution, really just doesn't work anymore. And I just think there's a lot of political instability around that period. You know, beginning in 72 is also where we see rising polarization. Right. So it's increasingly difficult for Congress to do anything. And like, among the things Congress isn't going to be able to do again is pass a constitutional amendment.
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A
So let's dive into Article 5. As you explain in the book, the framers wanted the Constitution to be amended because the previous governing structure, the Articles of Confederation, weren't flexible enough. As you said, the Constitution includes instructions for Amendment in Article 5. You call it, quote, by far the most radical innovation in the US Constitution. So give us a little history lesson on the Articles in Federation and why the inclusion was so radical. And where'd they get this idea?
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B
Yeah, though I hear your listeners like walking away.
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A
No, they are not.
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B
Give us a history lesson on the Articles of Confederation. No, I have to tell you, I.
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A
Had a very good teacher teach me that. So let's see if you can do it.
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B
Okay, so when the colonies decided that they were going to object to parliamentary taxation in 1774, they needed to form some kind of a league where they could speak with one voice. And they ended up, like, getting 13 of them together. There are other British colonies, for instance, you know, parts of Canada, parts of the Caribbean, that could have joined that league. But it's just the thirteen colonies, right? And they form a Congress. And the. One of the first things they have to do is come up with basically a treaty to say we are in a league together, and here's what our league is doing. It's just like a. It's like a marriage contract. Okay, here's. Here are the terms. Here's our prenup or whatever. And they don't really have a great amount of time to do this. This is essentially a wartime measure. Like, they know the war is going to start and they. So they come up with this pretty loose confederation. It's maybe a little bit like, say, the European Union, right? It's like a League of States. And, well, they have to have some kind of provision for amending this essentially treaty. And the provision they make, their amendment mechanism is there has to be a unanimous vote of all 13 states. So it takes forever for this thing even to get accepted. Years and years. Like the war is going on and the Articles of Confederation are still not accepted. Then as soon as they get accepted, then people want to start changing them. And there's, I think, more than a dozen amendments proposed, and they all fail because it just takes one state saying no, and usually it's Rhode island, and then everybody hates Rhode island, but you just really. It doesn't work. So when they get to Philadelphia in 1787, no one says we don't need an amendment provision. And no one says it should be impossible to amend this thing, or no one even says it should be extremely difficult. What they can all say is, we absolutely need one. It has to be way easier than the thing we just got rid of. We don't want it to make it too easy. And so they come up with this. It's basically just a math, right? You think about the Constitution is itself involves a lot of math because it's representative democracy. So it's in proportion of the population. They require a census. They come up with this crazy three fifths thing. Like, there's a lot of math in the Constitution. And the math behind Article 5, which is that any proposed amendment has to pass both houses of Congress by 2/3, supermajority, and then has to be ratified by 3/4 of the state. Seemed like kind of Goldilocks math in 1787. There are 13 states. Three quarters doesn't seem that bad. Two thirds, both houses of Congress. There are no political parties. It's just gonna be people like, what's the right thing to do? Not what's the right thing for my party. It's like, what's the right thing for my country? And so the math was okay until then. It turns out to be completely bad math.
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A
Now, Article 5 wasn't just a practical necessity for the framers, it was a political necessity because of the ratification process, mostly because of arguments over slavery. Explain how Article 5 became a way to appease both the Southern and Northern states while also officially postponing a decision about slavery until at least 1808.
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B
Well, Article 5 actually is a kind of pig's breakfast within the Constitution in that it writes into it all the worst compromises of the Constitutional Convention. So the Southern states are all, if you say anything about slavery here, we're walking. And then you have no country.
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A
It's kind of like the Epstein files.
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B
And the Northern states abide by that. And then the Northern states are like, well, okay, what about, could we at least end the slave trade? Like, could we just not bring more people in chains into this country, our land of liberty. And the Southern states are like, well, I mean, no, we can't end that either. No, we'll walk. But they come up with a compromise, which is in the amendment. As part of Article 5, you can't amend the Constitution to end the slave trade until 1808. Until, until 20, 20 years have passed.
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Right. So it puts it off, kicks the can.
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So it's like you can end it, but you just can't end it right away. We need to, we the living members here, delegates from the Southern states, want to make sure we can plan for that. So the smaller states like Rhode island and Delaware, Maryland, those assholes in Rhode island, go ahead. The Rogue Island. So the smaller states are like, well, if you're going to make that big compromise with the slave states, we want something. And so they get into Article 5, the pledge that the Constitution can never be amended to eliminate the equal suffrage of the Senate, that every state has two members of the Senate, which of course is a huge advantage to the least populous states and is why we can't actually amend that out of the Constitution unless we amend Article 5 first. So these compromises play a role in other parts of this. Why the Electoral College works the way it works. Right. It's a consequence of that same compromise with the small states. So that's all kind of rolled in to Article 5 from the beginning.
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A
So how are we so grappling with these compromises 250 years later?
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B
Yeah, you know, it's so interesting because there are moments of real possibility and there are incredible constitutional breakthroughs. So the Bill of Rights is an incredible constitutional breakthrough. Right. Like that those amendments get through is huge. The amendments that come out of the Civil War and Reconstruction are essentially a new Constitution. If you take the 13th, 14th and 15th amendment together, it's a whole new Constitution because it really is a second founding, as historians like to say, or what Lincoln called a new birth of freedom. Right. People like to picture that. And I have this illustration in the book of the Constitution having a baby. That the Constitution is once again fertile and giving birth to amendments and improvements that are making amends we're amending our ways. And then there are these periods where just kind of nothing can get through. Nothing, Nothing, nothing. Nothing can get through the forces of polarization or partisanship. Oftentimes, if you think about something like the child Labor Amendment from 1924, you'd be like, how is it an amendment to make it a violation of the constitution to employ children under 12? Like, how? Like, how is that going to fail? But you know the league of Manufacturers and textile owners from the south in particular that just throw money at that and defeat the child labor. It's like, it's usually, wow. It turns out it's really, really, really hard to overcome money in politics. Partisanship, polarization. Yeah, it's just like. And misinformation. Like the campaigns. Like the campaign that was waged by the manufacturing companies, the textile companies to defeat the child labor amendment was to say, if this passes, you won't be able to tell your daughter to help you wash the dishes or your son to go stack the hay. Like, you can't even get your children to do chores anymore. And it kind of came down to, like, they should have used employment instead of labor in the amendment. Like, it's just this dumb thing. I'm like, wow, what a disaster that was. Like, it doesn't. It just takes like. It's just like a strong wind can defeat a constitutional amendment.
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A
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B
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A
So let's turn to the Supreme Court in its role in interpreting the Constitution as it changes, which is part of what scholars call the informal amendment process, which they're always interpreting it in different ways. The 14th Amendment, my favorite amendment, was ratified to protect formerly enslaved people from discrimination in the wake of the Civil War. Its language is fairly broad and was used to underpin two of the biggest Supreme Court decisions of the modern era, Brown v. Board of Education which desegregated public schools, and Roe v. Wade, which established the former constitutional right to an abortion. The broad scope means it can be used to expand rights for Americans, gay people, things like that. It's been used in a lot of ways. It's like it's a real turducken of an amendment, but it's also left it vulnerable to attacks from conservatives. Is there a better version of that, of the 14th Amendment and what it would look like to make it more defensible?
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B
I guess, yeah. That's an interesting question. I mean, how I think about the 14th Amendment is, you know, if the Constitution is the trunk of a tree, the 14th Amendment is the strongest limb. Like, it's a really strong branch. But the claims that are made on the 14th amendment, we are out at the very kind of twiggy end of that branch, and the twig just keeps breaking. And the reason for that is that. But over the course of the 20th century, certainly beginning with Brown v. Board in 1954, people who are disenfranchised, they have no chance at amending the Constitution, right? Like in the Jim Crow era, black people just can't vote in most of the country. And there's just. I mean, although there's been the Great Migration, there just aren't enough black voters. And, like, you're not going to win civil rights legislatively. You're not going to win a civil rights constitutional Amendment in the 30s, 40s, 50s, and the segregated. Like, it's not possible. That is what the Supreme Court is for, is to protect the fundamental rights of minorities whose rights can be violated in the tyranny of the majority. So, you know, Thurgood Marshall, when he helps establish the NAACP's Legal and Education Defense Fund in the late 1930s, his strategy is, here's the only way we can change the Constitution. We're going to go to the court and we're going to make this argument that the 14th Amendment, you know, says this, and Earl Warren, who's the Chief justice, is like, okay. And he asks, you know, they. They. The argument is heard twice, and he sends back both parties to, like, provide better evidence. Like, what does the 14th amendment, what. What was it for? Does it indeed prohibit segregated schools? And in the end, Warren says, you know what? We can't actually turn back the clock. And we're not going to turn back the clock to the moment when this thing was written. We live in a different world, and this is the right thing do and does it. And building on that are all of the decisions that follow from it that are under the Warren Court that grant rights that are crucial and vital rights for other political minorities, including reproductive rights and rights, gay and lesbian rights. It's under the 14th amendment that anti sodomy laws are declared unconstitutional. So a lot is built out on that very, very strong limb of the tree. But not achieving those things via constitutional amendment means that they can always be reversed by the court.
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A
Right. Race and racism is common thread that weaves through the history of the Constitution. It shaped Article 5 in the 14th Amendment, and you can draw a line between, as you said, the Supreme Court's Jeanne Brown versus Board of Education, but then the rise of originalism. And that's the judicial philosophy that says courts should only consider what a given constitutional prov meant at the time it was written and adopted. Original intent was used by segregationists in the south, obviously. So why do we keep coming back to the idea of original intent and especially when it relates to racism in constitutional history?
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B
Yeah, I mean, I think you could say, well, it's clear why people with certain political preferences would favor an originalist interpretation of the Constitution. What's harder, I think, to understand is why it has gained such a purchase, not just among jurists, but as a matter of popular culture. Like, if you do polling and ask people like, how should you interpret the Constitution? People say, well, you should obviously figure out what the original words meant and what their intention was and how they were understood at the time. And that's not. Not lacking in sensibility, but it's actually a really unique American thing. This great loss legal scholar at Columbia, Jamal Green, once wrote a paper in which he compared ideas about constitutional fidelity in all of England's former colonies. Like, let's take, you know, Australia, Canada, the United States. Well, like, look at all of them. None of them have originalism except for the United States. But why? Why is it so strong? Why is that in the United States? And he came up with this. You know, he was like, looked at all these different factors that distinguished the US from places like Canada and Australia, and it was. He came up with fundamentalism because, you know, the predominance of a certain branch of Protestantism in the United States that that cherishes a literal reading of the Bible as fundamental truth. So I think there's like, a nice comportment. I'm not saying that, like, there are a lot of Catholics who are originalists too. Right. And I think that's in some ways a different strain.
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A
So that's how you explain the rise going from Brown v. Board No, I.
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B
Mean, I think that's how I. That's a way that I understand why it seems so logical to so many Americans. Right.
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A
So you also write that one of the stranger paradox, the difference between how the framers came to view their constitutionalism versus how of the architects of originalism understood it. And you mentioned failed Supreme Court nominee Robert Bork, late Justice Scalia and Clarence Thomas talk about that paradox.
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B
Yeah. So it is important to originalists that originalism is original. And there they are simply wrong. Like, the historical record does not support that contention. All of these people, Madison and other framers, change their mind about the Constitution all the time, and they changed their mind about how it ought to be interpreted. So at some points when it was politically to their interests, they might have said, oh, we should go back and. But the originalism, as advanced by Bork and Scalia and now practiced by Alito and Thomas, say, confines the historical record to a very small set of sources. Like, if you want to figure out, like, what does a phrase in the Constitution mean? You need to look at the Constitution, of course. You need to look at the notes that James Madison kept at the Constitutional Convention. You need to look at the records of the state ratifying conventions. And you should look at the Federalist papers, which are 85 essays written by supporters of the Constitution. And you're like, all right, that's very interesting, because those things were generally not available to people reading the constitution in the 19th century. So Madison's notes weren't published until after his death. The Federalist Papers were printed in newspapers, only really in New York in 1787 and 1788. They were compiled in later volumes, but they weren't like, highly circulating, like large print runs. The records of the ratifying convention, some of them, I think, weren't even published until the 20th century. So original, actually in this weird way is really only possible in the digital age. So, like, it really can't be original. You need like a keyboard to tap out into a search bar what it is that you're looking for. You need to search through these corpuses. I mean, one of the things that Madison warned about was 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.
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A
Right. They even say that Jefferson, there's so many quotes from all of them saying a version of that.
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B
So it's not their view that the Constitution needs to be read the way Antonin Scalia or Robert Bork said. They should read it. They came up with that argument for very particular historical political purposes. And, you know, that doesn't distinguish them from other jurists, left or right. Like, that's not. They're not unique in that way. But, you know, constitutional conservatives in the middle decades of the 20th century watched the Warren Court hand down decision after decision and were furious at their lack of judicial power and political power. And they also couldn't get any amendments through. So after Brown v. Board of Education, all the sudden, segregationists, in addition to saying, we won't honor it, we're going to have this campaign of massive resistance, they all started trying to pass constitutional amendments constitutionalizing segregation, and they couldn't get anywhere. Same thing after Roe v. Wade in 1973. Immediately, opponents of Roe introduced right to life amendments. They couldn't get anywhere. What they needed to do was take over the court, and they knew that. But they also really quickly came to understand they needed to abandon Article 5 and come up with a different argument about what the Constitution is and how.
- [32:14]
A
It should be read and what it says. So there are obvious flaws with originalism, including the unavoidable fact that, as you pointed out, women, black people, none, white immigrants and Native Americans were excluded from the writing and voting on the Constitution. But nonetheless, the Supreme Court is using originalist arguments in landmark rulings that redefine the Constitution. Recently example, in an opinion overturning Roe, Justice Samuel Alito wrote, abortion is not deeply rooted in the nation's history and tradition. So they're reinterpreting it again, Right. To suit their needs.
- [32:47]
B
Yeah. So they are. And again, that's what people do. That's what judges do. They're pretending that they're not. But, like, that's what's a little weirder about it. But the way that works, though, what is that? History and tradition. Like one of the examples that I. I'll give you two examples that would suggest why that is an indefensible proposition as a matter of historical investigation. So Robert Bork was once asked, if George Washington had written a letter to his wife Martha, explaining what he meant by direct taxes in the Constitution, would that be admissible for your understanding of the constitutional phrase direct taxes? And Bork says, absolutely not. That has nothing to do with how I could possibly understand the Constitution. What Martha might have written to George is well beyond the pale. And yet the claim of originalists is that the reason this is the right method of interpreting the Constitution is because it's the most democratic, because the delegates were elected. But if you were to. But if you were to widen the aperture of your lens for looking at the past, you would see, for instance, vast numbers, well, not vast numbers, but sizable numbers of petitions by enslaved men and women, mostly men, in the 1770s and 1780s, insisting on their human right to be free. Those, I think, ought to be considered proposed amendments, right? Like they are political expressions by people who have no ability to influence the Constitution, the state constitutions. But they are attempting to. And they were set outside the record of constitutional agitation at the time. But why should we set them out? On what grounds do we not look at those? So there are, like, 200 conventions held by black Americans in the 19th century. They're called colored conventions at the time. They're essentially constitutional conventions where they're held all over the free North. These people get together multiple times a year and debate the Constitution and how they can achieve the end of slavery and how they can guarantee the equal protection of the laws. These are the guys that write the 14th amendment. But if you're trying to interpret the 14th amendment right now, no Supreme Court decision has ever quoted any of those convention proceedings. Those are somehow outside the world of the allowable, admissible historical record.
- [35:06]
A
What rights are the most. In this originalist bent, what are the most vulnerable rights that were hung, I guess, on the 14th Amendment, largely?
- [35:16]
B
Well, right now, everything is vulnerable because we live in a system where what is constitutional is determined by the President of the United States. So in some ways, the book, which I just finished last year, feels dated. It ends in 2016, but it describes a world in which Congress and the Supreme Court sort of vie for authority to interpret the Constitution. And. And that authority has been seized by the executive office. So when the president can say birthright citizenship is not in the Constitution, and the vast machinery of an entire political party supports that. It's true, if he said it. And he has at his command the National Guard. He's commander in chief of the armed forces. This is exactly the situation that the Constitution and its amendment provision was designed to avert.
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- [38:03]
A
So let's pivot and talk about Trump and the Constitution. You wrote in the New Yorker that Trump, quote, has set about dismantling much of both of the federal government and the Constitution system of checks and balances. Can you talk about this? Because it seemed easy at this point, although he's being stopped by certain courts.
- [38:19]
B
Yeah, Ian, I still do think he will be stopped in much of this. It's the bluster of if I say it, it's true. If I say it more loudly, it is even truer. That is his one big move, and that has been hugely successful for him. So I don't mean to understate the power of that move, but I think Trump and Trumpism are also a product of a world where the Constitution became unamendable. I mean, after the ERA, the amendment that Americans most seriously considered in the 70s and 80s was the balanced budget amendment, which had like ERA, about 80% popular approval, like, say around 1979 or so. There's just a lot of people who were really worried about federal government spending. So that essentially constitutional frustration of a large segment of the American public. I think Trump tapped into that right.
- [39:24]
A
But so liberals had hoped, obviously, the courts would be a way to stop Trump's authoritarian impulses. The tactic has worked. Case after cases, then reach the Supreme Court, where the administration has pretty consistently won, at least for now. We keep hearing, are we in a constitutional crisis mainly centered on whether Trump is defying the courts? But what about when the Supreme Court lets him undermine the Constitution? There's no remedy for that right. If the Supreme Court always gives him what he wants in the end, there.
- [39:53]
B
Is no remedy for that except the election of 20, which is a real remedy and not to be sneezed at. I think that those who live by the court die by the court. So people who are opposed to the agenda that Trump is imposing have a lot of political organizing and electoral work to be doing.
- [40:15]
A
I'd love your thoughts on what will happen here.
- [40:18]
B
Historians just make piss poor profits.
- [40:21]
A
Okay.
- [40:21]
B
Just really do you know, it is many people will say, and I think this is true, that the federal judiciary is the only part of the federal government that's currently working. Right. Congress has abdicated most of its power to the president. So but, you know, much hinges in these decisions on their appeal to the Supreme Court. And we don't know what's going to happen then. And the constitutional crisis piece of it is when the court, court inevitably, in at least some of these cases, rules against Trump and upholds, say the lower courts that have found his actions to be unconstitutional. What will Trump do? He has many tools in his toolbox for undermining the court if he chooses to do so.
- [41:15]
A
And one of the things today I was noticing there was a bunch of federal judges who were decrying the Supreme Court. And then at the same time there was a story saying John Roberts is trying to play the long game with Trump is to giving him a little so that preventing him from hurting judges themselves.
- [41:29]
B
Yeah, I mean, I happen to be like, I believe that each justice on the Supreme Court is acting in good faith with their beliefs. And I think it is important to not undermine the court. And no matter how vehemently I disagree with it, it and how infuriated I am by decisions in particular that compromise the rights of really vulnerable fellow citizens of mine and immigrant aliens in this country. So I guess I stand by my hope that the court will stand up. And as much as I disagree with a lot of decisions of the court, I am also very open to being persuaded that the decisions, some of the decisions I disagree with might have been the right ones. And I don't know, you know, like I remember, I still hear from people who say the presidential immunity decision, without that, Joe Biden would be in prison and Barack Obama would be in prison. Like I. And I actually think history may show that that is what that decision was for the most part about, rather than giving a free hand to President Trump.
- [42:50]
A
So every episode we get a question from an outside expert. Here's yours.
- [42:54]
B
Hi, I'm Neal Katyal.
- [42:56]
A
I'm a law professor at Georgetown and a Supreme Court lawyer.
- [43:00]
B
I have a question about the professor's.
- [43:03]
A
Very powerful argument about the Constitution and Constitutionalism.
- [43:07]
B
And my question is, is the Constitution.
- [43:10]
A
Really relevant today, particularly in a world where amending the Constitution is so hard?
- [43:16]
B
Chief Justice Marshall in McCulloch vs. Maryland.
- [43:19]
A
Said, the great thing about a Constitution.
- [43:21]
B
Is that it's flexible and intended to.
- [43:23]
A
Endure for ages to come.
- [43:25]
B
But when we look at our Constitution today, is that really true?
- [43:30]
A
It was written by dead white men. It doesn't even really truly guarantee a right to vote.
- [43:36]
B
It lacks all sorts of protections for.
- [43:39]
A
Individual rights that other countries have. It tolerates barbaric punishments, and it presupposes.
- [43:46]
B
Most of all the Congress that's actually.
- [43:48]
A
Doing their job instead of just rolling over as this Congress is.
- [43:53]
B
So why should we care, professor, about the Constitution and Constitutionalism? Or should we just start over?
- [44:00]
A
There you go.
- [44:01]
B
Okay, great. Thank you very much for that fantastic question. You know, anti constitutionalism is a very strong strain of the American political tradition. There have been Americans from the start who have said, let's scrap this thing and start over. That was the case in 1787. It was the case throughout the 19th century. Most people remember learning in high school about how William Lloyd Garrison burned the Constitution, called it a covenant with death because of its sanctioning of slavery. There are a lot of people in the Progressive Era who said, let's just start again. We can't even fix Article 5. Let's just scrap the whole thing. If Article 5 is not working, nothing's working. And that actually is the argument, right? If Article 5 is not working, the Constitution's legitimacy is really to be questioned because it is foundational to constitutionalism that you should be fix it and improve it. Make amends, mend your ways. And. And there I actually agree with a questioner, right? Like, if I do think there's a real question about the legitimacy of the Constitution when it can no longer be amended by the people. And it's not. But I would say that is not just the Constitution as a document. That is a civic problem, because all of our state constitutions can also be amended, Right? They can also be amended by convention. And we have not had a state constitutional convention, a full one, in this country, since. Since 1986, when Rhode island held the last one.
- [45:28]
A
Rhode island, again with Rhode Island.
- [45:30]
B
Rhode Island, I'm telling you, it's all about Rhode Island. But, you know, 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. Like, we, we have lost. It's as if someone said, let's have ChatGPT fulfill jury duty for the next 20 years. We just will figure, like, it's a pain to go serve on a jury, that, you know, the algorithms could do it better, right? And then 20 years from now, we're like, let's do jury service again. No one even knows. No one would think they have the capacity to do it. Like, you could sit in a room with 12 people, be presented with evidence and agree on what was true and what was not true. But that is actually what a convention is, right? Like, we just don't do that anymore. So it's not just the failure of Article 5 in a way that would be the easier thing to fix. It's that we cannot sit together and argue about fundamental questions and agree to abide by a decision of a group.
- [46:27]
A
I mean, the framers even suggest the idea of scrapping the Constitution. The Declaration of Independence are quite explicit. Whenever any form of government.
- [46:33]
B
That's the right to alter and abolish.
- [46:35]
A
Let me read it for people who don't know. Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government. Do you see that happening?
- [46:48]
B
You know, I actually, I think the thing that seems like a very, very big straw on the back of that camel is artificial intelligence.
- [47:00]
A
Explain why.
- [47:02]
B
I just think that we live in a world where I was listening to an interview that Sam Altman gave in 2016 in which he said, you know, the thing is, I've been reading Madison's notes on the Constitutional Convention because this is going to be.
- [47:15]
A
That might actually be true.
- [47:16]
B
Might be true. This is going to be. Be so big. It's going to be so big, we're going to have to have a worldwide Constitutional Convention to figure out what fundamental law even is. Again, he didn't say it in this way. He said, we'll have a world governance board, whatever. Like, oh, they'll have to be like, because. And he says, because. I mean, I'm in it, but if I wasn't, I wouldn't want these fuckers making all these decisions for me.
- [47:38]
A
Well, I say that to them all.
- [47:39]
B
The time, Jill, which is what constitutionalism is, right? Like, these fuckers don't get to decide. So that is still true. That was true 1787, and it is true now. I don't see how. Even if you think that, like, 1 teaspoon out of every liter of that snake oil is not snake oil. We are at the beginning of a new era in the human condition. And how is this 18th century technology, which has barely held us together as a country for nearly 250 years, how is it going to rise to this particular set of challenges? Certainly Congress is not going to rise to that. But you know.
- [48:23]
A
Interesting. Your next book is the Rise and Fall of the Artificial State and it's about AI. Give us a sneak peek then. You're grappling with it obviously as it relates to the Constitution.
- [48:33]
B
Yeah, I'm just really trying to think through kind of how did we get to this place where these fuckers, you may say it, these fuckers decide everything. But like so much of our public discourse is mediated by. Is basically owned by corporations.
- [48:47]
A
And for four people. Four, six people, 10 people.
- [48:50]
B
Yeah. A handful of people that control public discourse like that. That is the doomsday narrative of every work of science fiction from like 1899 on. You know, it is sort of now it is a canard to be like, why do these people read those books and read them as instruction manuals? They were cautionary tales. They do.
- [49:12]
A
That's why you need an amendment to the Constitution against tech pros, you see, There shall be no.
- [49:18]
B
I think. I do really think constitutionalism is one of the great inventions of modernity. I don't think it's necessarily at this moment, given our civic culture, up to the task of addressing. Yeah. The oligarchy of those six corporations.
- [49:37]
A
You know, they're at the White House right now on the Rose Garden Club. Just.
- [49:40]
B
Oh, great. They can help fund the ballroom.
- [49:43]
A
They are on that new patio that took all the grass out.
- [49:46]
B
Yeah. All the roses will be gone. It's a Joni Mitchell world.
- [49:52]
A
Yeah, it is. They paved over paradise and po.
- [49:54]
B
They paved over the Rose Garden. Yeah.
- [49:56]
A
Well, they're all there right now. Tim Cook, Sam Alton. They didn't invite Elizabeth Elon. They were just trying. He didn't invite Elon. Don't feel bad. I don't for a minute feel bad for him, but he must feel bad anyway. But you're right, this is something. I'm glad you're writing about this because this is what I yell about all the time. Why are these 6, 7, 10 people making all these decisions for the rest of us? And it's yours to make decisions over, which is difficult because then what levers of power do you grab when they have all of them, including the money, including.
- [50:25]
B
And control of our public sphere.
- [50:27]
A
Let's assume last question. We're not going to start over. But that instead Trumpism leads to a catastrophe so great that it creates or AI opening for new amendments, new changes, or as you put it, quote from the burning scorched earth, new ideas might arise once more. That's a very, you know, it's Phoenix. Like, you know, there's a, that's a very potent metaphor often in history. How do you amend the Constitution then to fix its existing flaws and ensure it can survive another couple hundred years?
- [50:57]
B
One of the failed amendments that I spent most time thinking about the kind of what if Gaylord Nelson, the Wisconsin senator who started earth day in 1970 kind of after the moon landing, like we have to care about Planet A, introduced that same year constitutional amendment, environmental protection amendment. And that too seemed like, hey, that could probably get through if we weren't very first we got to do ERA and, and watching the dismantling of the epa, which is one of the more nefarious and more consequential actions of this administration. Well, if that, if, if, if the Environmental protection amendment in 1970 had actually been made part of the Constitution and ratified, you couldn't dismantle the ERA in that way. So, you know, 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.
- [51:51]
A
Oh, so what's the tree you're planting right now?
- [51:53]
B
I'm really just trying to get people to be willing to imagine that they could have a better constitution.
- [51:59]
A
All right, on that note will end. Thank you so much, Jill.
- [52:02]
B
Thank you.
- [52:08]
A
Today's show was produced by Kristin Castor, Roselle Kateri Yocum, Michelle Eloi, Megan Burney and Kalyn Lynch. Special thanks to Bradley Sylvester. Our engineers are Fernando Arruda and Rick Juan and our theme music is by Trackademics. If you're already following the show, you get a free trip to Rhode Island. If not, go sit with those bros in the paved over rose garden Rose Garden Club. Sorry, President Trump. Go wherever you listen to podcasts, search for on with Kara Swisher and hit follow. Thanks for listening to on with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast network and us. We'll be back on Thursday with more.