Jill Lepore on ‘We the People’

A reminder from Jill Lepore to her country: The Constitution was built to be amended.

In “We the People: A History of the U.S. Constitution,” Lepore, David Woods Kemper ’41 Professor of American History, returns to primary sources — from personal letters to official records — to show that the Framers expected Americans to tinker with and renew the document. As the book shows, generations of Americans were inspired to strive for corrections, improvements, and expansions of constitutional ideas and rights.

The 1787 Philadelphia Convention was originally called to retool the country’s previous frame of government, Lepore noted in a recent conversation about “We the People.”

“But the Articles of Confederation were effectively un-amendable and everyone there gave up on the idea,” she said. “The delegates decided, no, we’re just going to write a whole new constitution.”

The Founders recognized the need for an amendment provision, Lepore said. “It just needed to be better than the one in the Articles of Confederation, which required unanimous approval of all 13 states. So, they looked for a formula to make amendments easier — but not too easy.”

The solution, contained in Article V, was the Framers’ attempt at mathematical balance. Amendments can be proposed by Congress or state legislatures that call conventions. Passage requires supermajorities in both chambers of Congress, while ratification means approval by three-quarters of the states. A total of 27 amendments have been adopted, the most recent in 1992.

“Nobody anticipated that it wouldn’t work very well,” said Lepore, who is also a professor at Harvard Law School and a staff writer for The New Yorker. “And it doesn’t work at all anymore.”

This interview has been edited for clarity and length.

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Can you talk about the book’s backstory? I understand it’s connected to your teaching at the College.

In 2018, I published “These Truths: A History of the United States” and heard from a lot of readers who were grateful for all its constitutional history — which they just hadn’t encountered in reading about American history. That really struck me, and so I became determined to cover more constitutional history in my teaching.

I had planned to hold a mock constitutional convention in a class I teach at the College, with students forming delegations in order to propose amendments. Let’s say they wanted to abolish birthright citizenship or change the size of the House of Representatives. I wanted them to look at the history of those efforts and write a white paper to prepare for the convention.

It turned out that finding out the history of past amendment efforts wasn’t easy, which I found troubling. How can we ever have a sense of constitutional possibility as a democratic mechanism if we don’t even know what people have tried in the past?

Is this what compelled you to launch the digital Amendments Project archive?

Yes. With funding from the National Endowment for the Humanities and Harvard Data Science Initiative, I was able to hire a bunch of amazing College student researchers. Together, we made a database with the full text of all 12,000 amendments introduced on the floor of Congress.

We also incorporated a dataset of amendment-related petitions submitted to Congress, from a project run by Daniel Carpenter in the Government Department and colleagues: the Congressional Petitions Database. And then we trawled through newspapers and magazines and social media posts to get the fullest record possible of every meaningful proposal to amend the Constitution from 1787 to 2022.

It was just a blast working with these students. Eventually, I decided I would write a book about the history of the Constitution that bears in mind these many failed efforts in addition to amendments that succeeded and changes that came about through judicial opinions.

What can we learn from studying failed attempts at constitutional change?

The book looks, too, at efforts that never found their way into Congress because they came from people with no political representation. I found it illuminating to consider their criticisms of the Constitution — suggestions for its improvement or repair — alongside ones that succeeded.

For me, it was a lot of spelunking; a really interesting adventure. Some of the Progressive Era proposals are especially fascinating. Socialists threatened to abolish the Senate, for instance. The socialists really hated the Senate, because it was blocking everything they tried to do. And they were just like, you know what we’ll do? We’ll amend you out of the Constitution.

Plenty of what I found surprised me. I was surprised — and puzzled — to find how frequently Southern segregationists during the Jim Crow era proposed repealing the 14th Amendment. They weren’t honoring the amendment anyway. What was the point of introducing all those repeal proposals? A lot of it was political theater — performances for their constituents. That’s still true of amendment proposals.

Is there one failed amendment that really sticks with you?

The 1969 proposal to abolish the Electoral College is one of the real near-misses. Upwards of 80 percent of Americans supported it. Because of that support, it very likely would have succeeded in ratification if only it had gotten through Congress. It passed the House but came down to a handful of votes in the Senate.

The guys who voted against it, they didn’t do it because they didn’t believe in the amendment. They voted against it as political payback. They wanted to punish Birch Bayh, the Democratic senator from Indiana who was trying to push it through, for defeating two of President [Richard] Nixon’s Supreme Court nominees. These were Southern segregationists, and they managed to form an alliance with the NAACP because the organization thought abolishing the Electoral College would weaken the political power of Black voters in the North.

The Electoral College abolition was defeated out of pettiness, and the consequences for American political stability are dire. It was said then — and I still think it’s true — that the Electoral College is a ticking time bomb.

As you write, the Constitution has been effectively unamendable since the 1970s. What are the remaining avenues for constitutional change?

There are different varieties of what is sometimes called “popular constitutionalism.” My Law School colleagues Nikolas Bowie and Daphna Renan have a brilliant book coming out next year called “Supremacy.” It’s about democratic constitutionalism, or the informal process by which ordinary people can significantly affect the meaning of the Constitution. 

But right now we’re in an era in which the Supreme Court has a monopoly on constitutional change by way of interpretation. That’s not unusual in American history; the same thing has happened before. What is unusual about the current era is that the president believes he has the right to determine what the Constitution means. It’s in complete defiance of the constitutional arrangement of the separation of powers.

Americans and their elected leaders rarely organize to push for new amendments anymore. What’s the danger in the abandonment of that tradition?

The book is not a manifesto arguing we should hold a constitutional convention. It’s a history book, not a policy brief. But it does demonstrate the many ways in which we’ve lost the spirit of debate about fundamental matters. Higher education certainly contributed by abdicating its pedagogical role in teaching young people how to argue about ideas. It’s something many on the faculty have been distressed about for years, and something the Harvard College administration is now interested in addressing. 

The ability to sit in a room — to identify different views, different interpretations, while also establishing common ground and rules for the scope and nature of the conversation — is very important. These skills are important in a classroom. They’re important in a jury room. They’re important in a knitting circle or book club. They’re the building blocks of civil society.  

As the nation prepares to celebrate its 250th birthday next year, why should we the people be concerned with the amendment process?

I’m not arguing we should exercise the power of amendment anytime soon. Again, I’m not a policymaker or even a policy-recommender. But I do think we undermine constitutionalism itself by writing off the possibility.

What I call in the book “the philosophy of amendment” is foundational to our constitutional order. It’s written into the very word “amendment,” which has the same root as “mend.” We can make amends. We can mend our ways.

And it comes from the people themselves. It specifically comes from the people of Massachusetts insisting on an amendment provision in the Massachusetts Constitution. They rejected the first Constitution sent to the towns for ratification in the 1770s. They effectively said, “Try again. The Constitution needs to be fixable, and we are the ones who need to be able to fix it.” It was an incredibly important political struggle.