Constitution Breakdown #8: Jill Lepore

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This is the 99% ofvisible breakdown of the Constitution.

I'm Roman Mars.

And I'm Elizabeth Jo.

Today, we are discussing Article 5, which lays out the ways to amend the Constitution.

And from the beginning of this series, we knew there was only one person we

wanted to have for this episode.

Historian and writer Jill LePore.

Jill is an American history professor at Harvard,

a staff writer at The New Yorker, and author of one of my favorite books,

Bees Truths, a history of the United States.

This falsely published a new book, We The People,

a History of the U.S. Constitution,

and Jill tells the history of the Constitution through amendments,

ones that succeeded, and ones that failed.

Article 5 is just one long sentence.

One long boring sentence.

Here it is.

The Congress, whenever two-thirds of both houses shall deem it necessary,

shall propose amendments to this Constitution,

or on the application of the legislatures of two-thirds of the several states,

shall call a convention for proposing amendments,

which, in either case, shall be valid to all intents and purposes as part of this constitution

when ratified by the legislatures of three-fourths of the several states,

or by conventions in three-fourths thereof,

as one or the other mode of ratification may be proposed by the Congress.

Provided that no amendment shall be made prior to the year 1808,

shall in any manner affect the first and fourth clauses

in the ninth section of the first article,

and that no state, without its consent,

shall be deprived of its equal suffrage in the Senate.

In her book, Jillipore argues that the Constitution is designed.

It is truly meant to be amended,

and before we go any further,

it's important to define what a constitutional amendment really is,

because the definition is broader than what most people probably think.

The word amendment just keeps taking on all these adjectives,

so legal scholars like to talk about formal article five amendments,

and a formal article five amendment is a constitutional amendment that is

properly adopted and ratified into the U.S. Constitution

through the methods that are described in article five.

But because an amendment just really means a change or revision or a correction or repair,

and because the Constitution is changing and being corrected, repaired, and altered,

all the time, amendment happens in other ways,

and so then legal scholars come up with other adjectives to describe other kinds of

amending the Constitution. Informal amendment is a common way of describing

a kind of creeping change that comes about almost by habit or practice,

and then there are amendments that are often described as de facto amendments that are really

judicial decisions that have the consequence of changing how we understand a provision of the

Constitution. We could make more piles than that, but I would say those might be the

three main ones. And just importantly that when you say that, you mean

for those listeners who might not understand, when the Supreme Court, for instance,

I think you're saying, and makes a new interpretation of the Constitution, we can consider that

in amendment as well, even though the Supreme Court may not say that explicitly.

Yeah, so no matter what your political preferences, people don't like to admit that the

Supreme Court is actually often amending the Constitution. In my observation, you may have

a different view of this, because technically the Supreme Court is not supposed to be amending

the Constitution. So there's a kind of nudge, nudge, wink, wink, when the Supreme Court says,

there is such a thing as presidential immunity. In my mind, that's an amendment to the Constitution,

like that's not in the Constitution. They have invented and devised that. Or when the Supreme

Court said, you know, in Griswold versus Connecticut in 1965, there's a right to privacy that extends

to birth control for married couples, you know, conservatives said that's not in the Constitution,

that's an amendment to the Constitution. Usually when you say something, the Court is amending

the Constitution, you are denying the legitimacy of the change rather than accepting the legitimacy

of the change. Right, right. But the Court of your book is actually about the formal part, the formal

aspect of amending the Constitution. So could you talk through a little bit about Article 5,

the process, why it was included, and why does it say specifically what it does?

Yeah, so it was really a new idea, and it doesn't, it's not new to the Constitution of 1787,

it's new in the Constitution of 1776. So it's a great time to be talking about this because

we think of this 250th anniversary of the country as celebrating 250 years since the Declaration

of Independence. But of course, the first state constitutions were adopted in 1776, beginning in

January of 1776. And the Declaration of Independence follows from them and in fact borrows a fair amount

from them. So the states, the new states, former colonies had no government when the royal

governors fled after the war started in 1775. And they had to make some decisions and do some

things. So they started forming governments in 1776. And John Adams, who was in the continental

Congress, they should all write constitutions and they should basically be the same because we

believe in written constitutions. Adams said in England's Constitution is unwritten, but we think

the states should write down their constitutions. And people generally also believe those constitutions

should include declarations of rights. And increasingly over time, this wasn't by no means the case

entirely across the first state constitutions, but increasingly a set of expectations emerged

about what a written constitution is in a republic. One, that it has to be written by a specially

elected body, like a legislature can't write the constitution, because they'll just give

themselves too much power. So you have to have a special convention of people who are elected or

delegated solely for the purpose of writing constitutions. So there has to be a convention

so that the constitution is properly drafted. Then the constitution, after it's drafted, has to

be sent to the people for their ratification. They have to approve it, can't become a constitution

unless it's properly ratified. And then the third idea that emerged as the third leg of the stool

of what a written constitution is in the United States is it has to be amendable by the people.

For the same reason that the legislature can't write it, and that the people have to ratify it.

If you really believe that the people are sovereign, there is no king who is sovereign,

we rule ourselves. Then we should write fundamental law. And if fundamental law needs to change,

we should be able to change it. So this is like the core of constitutionalism in the emerging

United States. And so those ideas are, you know, there's been a lot of experimentation,

like some states adopted constitutions. Without a convention, some states adopted constitutions

with no amendment provision, some states adopted constitutions where the thing could be amended,

but the legislature could be amended. And they all kind of failed. So there's a big fight in

Massachusetts. In 1779, the state assemblage legislature writes a constitution and sends it to

the towns for ratification. And the people of Massachusetts are like, dude, it's like, no,

we're not going to ratify this. We, we, where's the convention? Who told you you could write a

constitution? That's completely crazy. No, they just rejected it. And you know, the war on,

it's a big problem when you don't have a constant, like the government has no authority.

So they had to hold a constitutional convention in Massachusetts in 1779, the first one was earlier.

And the people, among the reasons the towns rejected the constitution was because the people

couldn't amend it either. They didn't write it. They couldn't amend it. So the new Massachusetts

constitution had an amendment provision. So by the time you get to Philadelphia in 1787,

which remember, the reason they're even meeting is because the articles of Confederation,

which is the only thing that's holding the United States together, the only way to amend the

articles of Confederation was by the unanimous consent of all the states. And they could never

amend them because Rhode Island would always hold out. Rhode Island was called Rogue Island,

because everyone hated Rhode Island. Rhode Island was always like, nah, we don't think so.

It was like the tiniest little speck of a state. And they're like, we're so big with our

bridges. We say no. And you don't have to do it. We say. So the reason that they're, you know,

they have to have a convention to write a new constitution is because the other thing is

unamendable. So this is where a long explanation for why there exists Article 5. It was completely

non-controversial at the convention in 1787. Everyone understood this thing had to be amendable.

No one was going to ratify it if it couldn't be changed. So that's where it comes from. But the

provision itself is, it's kind of a pig's breakfast like it's got all these compromises in it.

And they just sort of guessed about what might be the right bar. Like they have this Goldilocks

problem, right? Like they're writing constitution. They want it to be amendable. But they don't want

it to be impossible to amend it. It needs to be amendable. But they don't need to be too easy to

amend it because they don't they want the thing to be sort of stable and, you know, get its legs

before people start knocking it over. So they come up with this double supermajority provision,

right? The two-thirds of both houses of Congress have to pass it. Then it goes to the states and

three-quarters of the states have to ratify it. And I don't know, that doesn't seem crazy

from the vantage of 1787. But it turns out very quickly it's much harder to achieve that double

supermajority than they anticipated. And in fact, there are two different routes actually, right?

Maybe you could talk to us about that. Which one became the de facto route?

Yeah, I mean, they don't give this enough attention. It's one thing to say.

Remember, like they don't even get to this question. It's, they've made so many compromises

and there's like so much blood on the floor by the time they get to article five. People are like,

all right, yeah, so it's going to be amendable. But then there's a little bit of discussion of like,

well, how would that work? And so there's a few different plans. And you could sort of see they're

just like, all right, whatever, put it all in there. Like, okay, so you can actually

states can petition Congress to amend the Constitution. And that's a way to introduce

a possible amendment. States can also hold a convention. There can be a second constitutional

convention. And if Congress passes an amendment and goes to the states for ratification,

it can be ratified in a number of ways. Like the state legislature can just vote on it,

or the state can decide to hold a ratifying convention. And some of these things have been done

and some of them have an opinion. We've never had a second constitutional convention.

And just failed. Just an idea didn't work. Yeah. Yeah. I mean, immediately after the Constitution

is sent to the states for ratification in September of 1787, like imagine that there was a new

constitution and it went to the states today. The first thing that would happen would be,

every would be like, California would be like, wow, we want this and this and this and this and it.

And and Texas would say, we know we want this, this and this. And Michigan say like, we like it just

as it is. But Minnesota would be like, we just have this one thing you want to add.

You know, we have three things in here. We will not sign this unless these are out, like immediately

what happened and there's only 13 states, but they all were like, we have some requests. And so

it was immediately a political problem of ratification was the possibility of amendment. Because

a bunch of states said, well, like New Hampshire was like, we're not even going to vote because

we can't even. But Massachusetts and Maryland were like, we'll ratify it only if you promise

to add these 13 amendments that will officially send to you. So then all the states were like,

oh, you mean we can we can actually add amendments. And the federalists kept going out there with like

their whole spin on the thing was ratify first amend later. Like they're like, you picture the

cheerleader ratify first. Like this is their chance ratify first amend later. Like we just got

a ratify thing. But two states say we actually need a second constitutional convention because

there have been over 200 amendments proposed in the state ratifying convention. So finally,

the federalists win the argument and they promise they promise they promise like

cross my heart and hope to die. The first thing we'll do if you guys agree to ratify this is

we will amend it. In Congress, we'll hold a special session. We'll look at all the amendments that

were proposed in the states and we'll we'll send amendments back to the states. So that's and that's

the only reason we even have this constitution because eventually the state you're like, okay,

that seems fine. Could you talk about the the nature of amending a constitution? Like I was kind

of blown away by the idea that you could you could conceive of a constitution where you just

erase shit and then replace it, but they decide to keep it all and what the thinking went into all that.

Yeah. Yeah, this is weird to me. There's a great book by Jonathan Gennep that's just out this year

and he he had laid this all out. I think it a lot of review article previously, but it's in his

new book as well. In which it really shakes up your sense of the I don't know this scripture like

quality of the document because so by when first Congress is held to have an election, Washington

becomes president, then they seat the first Congress. And James Madison is a member of that

Congress. Madison's all thought of the car father of the constitution because he sort of wrote

the first draft. Madison been really opposed to amending the constitution and he had been really

opposed to what the anti-federalist most wanted was a bill of rights. This is a bad idea and he

has a really solid argument about that, but he runs for the Senate. He loses the Senate seats because

people like the guy doesn't even like amendments. And so he he's like, okay, I'm now I recognize we

have to amend the thing. We promise that we would. And so it's like every day of the first session

of Congress, he's like, um, we said we'd amend, we'd amend it. And nobody wants to do it. They have

a lot of other things to do. It's like the first Congress they have a lot of access. But so it gets

to be June of 1789. And on June 8th, he gets up and he gives us speeches like, okay, really we have

to do this now like we have to do this. So he's gone through the 200 plus proposed amendments from

the states and he's whittled them down to this really interesting list of 12 and he introduces them.

So then there's a lot of debate in Congress about which of these they might send to the states.

And then they're add some more. They take some way. But once they decide that they're going to send

them to the states, there's exactly as you say room, this question of like, well, what would it look

like to amend this document? Because what Madison has written isn't just like in paragraph two line four

to theirs. Like it's not like an edit track changes. It's a it's a list of new things. It's the

for you know, it's like the first amendment. Congress shall not. Congress shall not.

So it's a bill of rights. And in the states, the bills of rights or declaration of rights appear

usually at the top of the Constitution, but they're their own separate section. So partly it looks

like, oh, these new, these these amendments kind of are set and they should maybe just appear at

the end. These people can app cause them the supplementalists like they'll be supplemental to the

Constitution. But then other people like you, but they they contradict some of the stuff that's

already in there. So how would you read like how would you read a document that like part one says

x, y and z and part two says not x z times two. Like it doesn't make any sense like how would people

know how to read it. But they're these practical arguments against these people are called the

incorporationists. They want to actually go back and do the track changes thing. But the

supplementalists win partly because we've already printed it. Like it's in books like in

school books and stuff. And like it's going to be a pain. It's it's like someone's telling me

like changing the Department of Defense to the Department of War is going to cost like

emptying billion dollars because of the stationary. I believe it has stationary anyway. But

but there was that was kind of a thing with the Constitution. So it has these huge consequences.

Like I don't know you guys know I know remember this, but some years ago when like there was a lot

of constitutional fetishism during the Tea Party movement. The Tea Party caucus read out loud the

Constitution on the floor of Congress. And they skipped over like the three fifths call.

But they just like silently removed it because you know it is it is abolished by the 13th Amendment.

But but because the supplementalists and not the incorporationists won it is still in there.

It's like a record of the thing. It's like version control or something. But it is

it's a super odd quality of our Constitution. And I guess some people think it also contributes to

the veneration of the original Constitution because no we deserve like scratched it up.

Like that would we'd have more of a sense that it is amendable if we pictured it as something

where other than there is that like little squiggly line and there's like the bubble where you

write in the new thing. That's right. And so the one that we have now of course has been amended

you know 27 times. But I'm struck that your book is not entitled The Successful 27.

It's actually a book about a lot of failures, right? And so many failures, so many interesting

failures failed them. And so what can we learn from this history of things that didn't happen or

not part of the official record? Yeah. So I um I was teaching class where I was having my students

do a mock constitutional convention. I had one of them to prepare constitutional amendments all

semester. And one of their early assignments early in the semester was going to be like

look up. If anyone has ever tried to do the thing that you're proposing in part of your white

paper would need to be a previous ever. So let's say you wanted to add a voting rights amendment

you know you were supposed to include like who and when and had ever proposed such an amendment

and what had been its fate. And it turned out that was really hard to do because we don't even really

we just don't have much of a sense of the failed amendments. So I ended up getting a grant from the

great and now gone national down for the humanities to spend some years devising a fully

searchable public archive, digital archive of every attempt to meaningfully amend the US

Constitution. So it's you know thousands and thousands and thousands of amendments like some

12,000 that were introduced in the floor of Congress. And again like as you say only 27 ever

were ratified. So I did that mainly just for the sake of my I thought like more people than me

would like to do this exercise as a class exercise. But it actually was really really interesting. And

then reading about other people's efforts to compile a record of the failed constitutional amendments.

This one guy in like 1876 or maybe was 1887 like this century after the Constitution

was written said you know I haven't studied these things. It turns out like is it incredibly

meaningful record of the political aspirations of the American people to look at the failed

amendments. And I thought that was true. And I mean I don't love them. A lot of those 12,000

members are horrible ideas. But like they are a record of what people have wanted and not been

able to get. And I just was like well maybe that would be an interesting way. I mean it's how I

ended up writing them because I maybe that'd be an interesting way to tell the story of the

Constitution. Because so much of how I think Americans think about the Constitution is there's

this like you know the arc of the covenant. It's the scripture and the sacred and the national

archives. Or it's like what nine robed justices say it is. And so like in law school that I mean

with this you live with who might contest this in my experience of observing how constitutional

history to the degrees taught in law school. It's really just like a bunch of supreme court decisions.

Yes absolutely. Yeah it's like on Tuesday it's Dred Scott and you know then it's Lockner and then

we're Brown be boarded. Like that's what that's what the Constitution is. And I am as a historian

I'm like what about the people like I what this is so weird to me. So I really like the idea of

trying to unsettle our notion of what constitutional history is by by paying attention to all the

things that people have wanted the Constitution to be. And often have succeeded in some to some

degree even without a successful formal article five amendment. So yeah I just kind of wanted

to blow that up as a way to also to remind me and my readers of two things one that the founding

idea of our system of constitutionalism is what I call the philosophy of amendment. The idea that

the people should be making things better when it should be changing things peacefully when it's

necessary to change things. Yeah and the other is just this notion that the Constitution is actually

our Constitution. Yeah it doesn't belong to the court. When we come back we talk about why the

framers felt it was necessary to be able to change the Constitution and how article five amendments

began to become functionally impossible. 99% invisible is supported by Claude from Anthropic.

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You write about the the framers of the constitution being you know acutely aware of what it would

mean if the constitution wasn't amendable because you know there wasn't a lot of precedent of

long-standing constitutions and when they're not amendable I don't mean the one before this was

longest lasting was 20 years you know like outside you know like you know and so how did they

treat the desirability of not just the necessity but the desirability of amending the constitution.

So they talked about parliament's behavior during the years before the American revolution

has having been unconstitutional so England does not have a written constitution but that doesn't bar

the sons of liberty and the resistance from saying all the time you know when they say you know

we oppose the sugar act the stamp act the towns and acts the t-act that in until the chorus of act

they said because they're unconstitutional because of no taxation without representation so

they had no remedy for being faced with tyrannical unconstitutional acts on the part of their

government except revolution and the revolutionary war is so distant in time and we have so

little sense of the kind of suffering that 18th century warfare meant but there are types of

misery that are just unfathomable to us in terms of the daily suffering of people in wartime.

Modern war is more lethal for sure the machinery of modern war is more lethal but people are

living in such a general state of deprivation with essentially zero medical care and hardly any food

to begin with. These are people who by the time you get to 1787 you know they're only a few years

from the piece of Paris they're not that far from Yorktown everybody has lost someone

seen the tremendous amount of suffering that that revolutionary war led to the idea that the only

way you could successfully deal with a government that was acting unconstitutionally would be by

bloody violent revolution was horror a terror to them and they were very self-conscious and indeed

quite self-congratulatory about the method of what they would have said a peaceful revolution.

Amendment was the great the genius idea of the American constitution in many ways they they

you know the framers themselves said this all the time because they had invented a method by which

the people could peacefully change fundamental elements of their government whereas in all

previous time the only method was was violence and insurrection and so they said you know will

we are preventing an insurrectionary politics from the falling our republic by introducing this

peaceful provision so that's another reason like I don't know that I really I'm I'm such an

ameliorist I'm just not a revolutionary reform reform like the idea that like you could just make

things better by saying hey bunch of us got together we disagree about a lot of shit but we

agree about this little thing can we do that please like that I like that a lot that's kind of how

I roll well but even that amendment process itself I mean maybe you could talk about these two

polar opposites in your book one is like let's have an amendment an example it'd be like right

after uh brown versus board in 1954 let's have an amendment to make it easier to change the

constitution and at the other end of the scale you have the core one amendment right before the

civil war let's make sure that we keep slavery and we make sure that that can never ever be amended

ever again I think the technical terms entrenchment or something like that and these happen in our

history where we have this anxiety should we make it a lot easier or should we make it impossible

I wonder what your thoughts are on that yeah um and yet neither neither of those efforts has ever

succeeded if you go into the the amendments project is this database that that's my students and I

put together and if you you could search by topic and the topic amend will pull up results that are

amendments that try to make that revise article five I mean either like a medical amendment or

more difficult to amend the to amend um I would say you know there was maybe 2020 the National

Constitution Center had three different teams of uh constitutional scholars right it kind of

revised constitution they had conservatives uh progressives and libertarians and they

they were very interesting things that they came up with but they all changed article five

and they all made it easier to amend the constitution uh which was interesting that that was a thing

that they recognized as a shared concern but yeah because article five doesn't work anymore you can't

revise article five how soon into the constitution existing did people realize that article five

with kind of a non-starter when it came to changing the constitution in a meaningful way

yeah you know I think um so the bill of rights okay people were happy about that right then um

then there's the 11th and 12th amendment get in they're just kind of like

just sort of obvious structural problems it then they get addressed

and then people start trying to do big things so I think the 12th amendment is 1803

1804 is the first time people into wingland start really pressing

essentially to abolish the electoral college yeah because the electoral college is so unfair

to new England they're not that I mean they're they're because the slave states in the south

have disproportionate power because of the free fifth clause and they're not going to overturn

the three fifths clause but they start trying to like tinker with the electoral college as a way

to undermine the three fifths clause um not out of an abolitionist sentiment but out of a like we

want more power sentiments and that it's it's like very quickly clear that's not going to work

but that then leads to what is it 1814 there's a Hartford a sort of like almost a constitutional

convention it's just only like New England and New England gets together and Hartford they're like

man this constitution is really not working for us and we're not going to get any amendments

through because this article five things really not going to work what are we going to do

and they start threatening to succeed from the union so you already have that and then

the next kind of big crisis in the 1830s when South Carolina starts threatening

succession over the tariff there's a whole kind of by the 1830s

hey is it really that there's concern that the article five doesn't work it's more like

it's become clear by the 1830s that there are different understandings of what the constitution

even is so that's when John C. Calhoun says you know if we don't like a law passed by Congress we

don't have to obey it right we're not really the federal government is in sovereign only the

states are sovereign and like they're just like light recommendations that Congress will help us

so like it's just a league we're a confederacy you're not a union right like you already have that

so i'm just musing now as like over like when does but like as a historian it's clear that

why article five is kind of a dead letter before the civil war is the only thing that really

matters that people really care about constitutionally is slavery yeah and that cannot be addressed by

article five not because the slave trade thing that is prohibited but from article five revision

until 1808 but because there's just no way for three quarters of the states to agree on slavery

like they barely agreed on it in 1787 yeah so it's like like you can't you can't get the engine to

turn over because the key like it's all about slavery yeah yeah yeah but what's remarkable then

of course are the reconstruction amendments they happen all at once seemingly historically right

they happen very quickly yeah and that seems like a real turning point right and that maybe you

could help us understand like why do moments like that happen in the article five story that's a big

success yeah so the 13th Amendment which is 1865 the 14th Amendment is 1868 and the 15th is 1870 those

of the dates of their ratification yeah so what the South said at the time and what many

southerners certainly Southern segregation has said for decades is that in fact those are

unconstitutional constitutional amendments because the South was not in Congress so the 39th

Congress that comes up with the 14th Amendment it's only the Union states that are there or

then there are elected delegates representatives from the South but since anyone who served in the

Confederate military is disqualified from holding office like it's the South would say those were

carpet backers and then in order to get back into the Union and recognized as a state in the Union

the former Confederates are required to ratify the 14th Amendment so they would say like yeah well

we didn't vote for it in Congress and we ratified it like at the point of a gun so like I should have

led with yes the Civil War and the 13th 14th Amendment are amazing and they reconstitute the

country and they are generally thought of by historians as essentially a second constitutional

convention especially the 39th Congress is essentially a constitutional convention like that's

all they're doing it's trying to figure out what should be in the 14th Amendment which is extremely

long and is the most important amendment to the Constitution so it is a whole new beginning

a second founding as Eric Foner calls it that said and so it's a miracle and that's it but it's

only accomplished because 750,000 people have just died in a civil war and the defeated South is

being treated like a conquered country and disenfranchised that makes passing amendments easier

but for you also there's the real turning point I guess historically in your story is 1971

effectively say Article 5 is dead in a rival in 1971 and in fact if you go back to law review

articles going stretching the past 50 years or so you find titles like The Frozen Article 5 the

Comatose Article 5 you know all of these the crazy metaphor so what was what's wrong what happened

in 1971 yeah so the amendments we do have really have come in bursts like the Bill of Rights

was all at once the reconstruction amendments essentially all at once the progressive amendments

there are four amendments between 1913 1920 and then there's four amendments between 1961 and 1971

and then since then it's like a flat line there's one blip which is in 1992 the 27th amendment is

ratified but it was introduced in 1789 it was kind of lost in the paperwork so I don't think it

happened so why have we not ended the US Constitution since 1971 then it's one of the longer

dry spells it's not the longest so like any social scientist would immediately raise her hand

and say well that's because of polarization political polarization and I say it's been rising since

1968 and there's no sign of it really I mean this is like some variability but the double submajority

requirements two thirds and three quarters that was devised before there were even political parties

so that's one reason has become much harder than was anticipated but now there are political parties

and they're utterly polarized so I mean this is a big news item and a hot take on my part of Congress

can do nothing Congress is useless right Congress can accomplish absolutely zero so so they're really

not going to get two thirds of both houses to agree to anything like anything because of polarization

so you would you would say that but but also what happens in 1971 is that what comes to be called

originalism is born in its modern form in the famous law review article by Robert Bork

he is opposed to judicial activism which when people say judicial activism they usually mean

amending from the bench right and so he's opposed to grizzolvi Connecticut from 1965 and then he's

going to be opposed to roby way like he's opposed to the idea that there can be a right to

privacy can be found in the Bill of Rights that can guarantee reproductive rights so he says you

know what we need to do is go back to the original intention of the framers of the Constitution they

didn't mean for women to be able to get birth control so therefore it's not in the Constitution

and this theory of jurisprudence gets elaborated over the course of 1970s and then institutionalized

in the 1980s when Reagan is president and makes originalism which at that point is called originalism

the official policy of the Reagan justice department and anyone being put forward to the federal bench

has to be an originalist like has to pass a litmus test which they say this and partly that's

because the reason originalism rises in this era is that it's not just that liberals can't

amend the Constitution like the equal rights amendment which is passed by congress in 1972 it's not

ratified so liberals is like why are we going to bother trying to use article 5 is not working for us

we'll just go to the courts but social and fiscal conservatives are also finding it difficult

impossible to change the Constitution by article five amendment they want to pass a right to life

amendment especially after row flurry of these right to life amendments they can't get that

through congress and they want to pass a balanced budget amendment which they can get through the

Senate but not through the House so the the fiscal concert is so they come up with this idea which

is well we want to change the Constitution but we we've been saying for years we don't believe

in judicial activism and we posed to the war in court everything the war in court's done really

since brown like all the disparate the decisions of the 1960s the civil rights decisions

of the 1960s and the criminal defendants rights so we want to gain power and we want to gain seats

on the federal bench but then we don't want to do what they did because we've been saying that's

not allowed and we can't be that hypocritical so they're like okay well what we're going to do

actually from the bench is return to the original meaning original understanding of the Constitution

and it's that logic that gets you to that's how ultimately they overturn Roe v Wade with the

dobs decision in 2022 by saying you know the right to privacy is not in the Constitution we can't

amend from the bench that's wrong but what we'll do is we'll return no interpretation to the

original meaning of the Constitution so it's a way of exercising a tremendous amount of

judicial power in the guise of not constitutional change but constitutional restoration

and modesty actually right I mean it's like the premise is you know we're not doing very much

although it can't be quite radical you know I you know one of the yeah you've talked about

dobs but just to be clear originalism is everywhere you know so for instance there's a case from

2012 where the Supreme Court in a Scalia opinion or ask the question when the police

who didn't exist in the 18th century used GPS which clearly didn't exist in the 18th century

is that a search under the Fourth Amendment and Scalia says well we need to figure out whether that

would have been a search in the 18th century you know and it's an absurd premise right the idea

that you'd ask that very question yeah yeah it's really kooky and like the more you look at it just like

flat like like look at it look at it you're like it's just such a ranked nonsense but

it also isn't original it's not how anyone interpreted the Constitution when the Constitution was

first put into effect so it's it's odd but it is intention with again what I call the philosophy

of amendment right if if the point of the Constitution is eight point of the Constitution is going

to provide stability and transparency and accountability but it can also be changed through

this peaceful means the idea that the obligation of the Supreme Court is to keep turning back the

clock keep undoing change is seems to me to be to contradict the original yeah Constitution so I

have to ask you as talking to a Harvard history professor when you read the history done by the

originalists on the Supreme Court you know how do you grade them I mean I think I try to say like

think about originalism like I I think it's very smart people are originalists and they're very

smart very principled people and I respect them and I I take for granted the good faith with which

they undertake their work I I'm unpersuaded by it as a means of jurisprudence I am entirely certain it

is not original and I would also state with some authority that neither is it history it really has

very little to do with history because the methods that judges use when they write originalist

opinions are the methods of the law it's not like oh what can be known about this in the world it's

like what the the sources that originals will use to determine the original meaning of the Constitution

or its intention or whatever you know is the Constitution itself the text the records that ratifying

convention James Madison's notes on the constitutional convention and the federalist papers and

like maybe a dictionary from the point of view of of a historian like you you couldn't you

would never artificially bound your source material if I if I had a historical question about

I wanted to understand you know the Biden years as a historian like and I said well I'm going to

actually look at the White House visitors logs and the text of Biden's press conferences and then

Jill Biden wrote a diary and that's all I'm going to look at like you learn a lot about the

Biden White House with those three sources but it would be just bizarre world like that's you

know that's a D like like if you if you want to understand the Biden White House or the Biden

presidency there's just that's just not how you would go about it and and and and maybe that's

unfair and that like the sources that originals use are very definitive sources about we you know

what the what the people who are in Philadelphia in 1787 may have thought but but since the whole

premise of the Constitution was that it it is the spirit of the people you surely like when I try

to tell the story of Philadelphia in 1787 you're interested in what they would have called the

time the people out of doors all the people who are basically you know knocking on the windows and

banging on the doors with their ideas about what should be in the Constitution um there's just

like a whole big world out there so that's why I would say like I can respect it but be unpersuaded

by it as a way of interpreting the Constitution but I will never concede that it is anything to do with

how history works as a form of humanistic inquiry there's a thing about originalism that that it

come it's a thread in your book that you can it's this creeping threat that that grows it's not

just starting in the 70s like there's this sort of I sort of the the big bang of it to me is the

Dolly Madison publishing the Madison papers or something all of a sudden you have to like

pay attention to what they were thinking and not really think about it being an amenable living

document but like or we're going back and that's 50 years after the fact yeah yeah I'm interested

in that is the the the creeping force of originalism as under different names as it sort of goes

through American history yeah there's some moments that really blew my mind and trying to trace

that because in a way the book is a history of originalism it's a history of amendments but it's

also a genealogy of of originalist thought there's a moment in um in the oral arguments at Brown

V board in 1953 or 54 it was argued twice where this guy arguing for keeping schools segregated

quotes at length tawny's decision in dred Scott about how uh the framers really we need to always

be deferring to the original intent of the framers and they could never possibly imagine that

blacks could be citizens and I mean it is a century after dred Scott and uh there was a war over that

like I mean it's like no your audience like it's surprising that like because uh because

dred Scott is in a is we could call it an originalist opinion right so it's that's what the research

that tawny the chief justice regitorian offers is to prove that the framers would never have intended

for uh blacks to be citizens based on his reading of history and well that's the original

ist argument of Brown V board it would be clear like modern originalists are not like defending

you know this segregation it's not the project in originalist but that is the is an originalist

like oh the framers of the 14th amendment never intended they would never have imagined

that black and white children would go to school together that's not what they were doing

in the 14th amendment and there's that you know when uh Chief Justice Earl Warren issues his

opinion in Brown V board he says the history is inconclusive like and the history is murky

but his thing is like just a way to say like the history doesn't matter if we were to constantly

defer to the the history and tradition of this country we as a court could only ever re-instantiate

racial divisions you could never free the people from them and so he just like let's start again

and that's there's this guy i've never seen a really written about by legal scholars but his name

is david jay maize who uh was a virginia lawyer and quite talented historian when the appeal surprise

in 1953 for a biography of emin penleton who was a 18th century virginian maize actually does the

historical research for the segregation side of the argument in brown v board of education

and he's really pissed off when or or Warren says the history is inconclusive because maize is like

no it's not i did the history in history says the framers of the 14th amendment did not intend

for black and white children to go to school together that it did not intend to be banning

segregated schools and so he dedicated he's the architect of what is called massive resistance

in the south which is just refusing to enact uh desegregation in addition to being the architect

of massive resistance he starts writing about what he describes as the question of intent

and insisting that the only way to understand the constitution is to defer to the original intent

of the framers of any constitutional provision and he testifies before congress on this point and

he really elaborates these ideas they get picked up in the late sixties by Robert Bork

so he is kind of a missing link between the brown case and what becomes the the borkian argument

in 1971 and again like not to say originalism is you know a rejection of uh the brown decision

it is very frequently in conflict with the reasoning behind the brown decision right which was

history doesn't matter we need to do the right thing right um but this maze guy one of the reasons

he's so interesting and i wish that people would spend a little more time being attention to him is

he left this elaborate diary that any other person would probably either have destroyed or their

descendants would have destroyed but he was like a board member of the virginia museum of history

he left his diary to the museum like his diary begins when he's a young person with

he goes to a lynching in the nineteen teens and he writes about how exciting it was then he goes

just he takes a train to dc specifically so he can see birth of a nation like he is that guy

and then you see him in the fifties like arguing for segregation and then

he writes the intellectual justification for originalism in the sixties like

and it's kind of all spelled out in the diary which um has been printed

because uh just just really recently no within the last ten years someone great scholar edited and

printed had printed the diary and it's um you know it's the autobiography of segregation

you know part of this is your underscores the extreme importance today of the supreme court

right because if article five is effectively dead then everybody turns to the court but

i think the consequence of your story is that we have this a grand disment of the supreme court

like that's the only place we turn to and the modern court is kind of almost become like this

monarchical power right many of our amendments were responses to supreme court cases

but there's no real check of course on the court effective check on the court today

yeah and and of course in our era it's liberals who made the supreme court that monarchical power

right um so sadly there's not a lot of um intellectual consistency among political actors in this

story right like when when the court is conservative as it was in the progressive era progressives

are all about amendment and attacking the court and bemoaning judicial supremacy or labeling

at that and bemoaning it and then for the middle decades of the 20th century when the court

is liberal conservatives are really mad about judicial activism and judicial supremacy but then once

conservatives get control of the court again no then they're pretty happy with the court having all

this power and then liberals are upset with the court having the power like i like it is

important to to just note that like there's no one who escapes that trap we have to take a break

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cannot be combined with any other offer i mean mostly what you describe is history of

amendments not passing but there are a few kind of uh i don't know amendment heroes in your story

who like get a bunch of stuff done and uh i was particularly uh sort of enchanted by senator

birch pie who's the last kind of amendment warrior that existed before the the nail in the coffin

of a of article five um could you describe birch pie and his mission in life

yeah i love this guy like i like i i am archivirat this historians are in two varieties there's

archivirats and then there's like people who make sweeping generalizations i have work really hard

to say something sweeping but like i just could spend so much time with birch pie so he's

sky from indiana and democrat very very handsome charming so i like the kennedy of the midwest

and people thought he was like going to be a presidential contender in fact he sought the democratic

nomination i think in sixty eight briefly uh but he he doesn't have a law degree and so when he gets

to send it as a young senator uh gem islan who the big Mississippi segregationist who's

share of the senator judiciary committee put some you know on this graveyard committee which is

the senate judiciary committee subcommittee on constitutional amendments and it's like where ideas

go to die like you have an idea for an amendment and it goes to that committee and you

nothing's ever going to come out of that committee but it's he's a very ambitious guy though so

he's like i don't know maybe we should hold some hearings on some stuff in aslan's like dude

do not hold hearings on these things to tell you the things people want to do with constitutional

amendments they're like nobody's going to win no one's going to look good it's going to be bad

but he starts holding hearings on things he's like busing i'll hold a hearing abortion let's hold

a hearing i mean this that's a little bit later but he's basically gets through for constitutional

amendments and in that decade and he also significantly responsible for getting an equal rights

amendment out to the states and it's so he would say he would have said one of his great accomplishments

was the 25th amendment which makes provisions for presidential disability right so Eisenhower had

like two heart attacks and then also a surgery then Kennedy was shot people were like what do we

do you know what if what if Johnson had also been shot in Texas or in Dallas that day in November

1963 so the 25th amendment makes sort of succession presidential succession and provisions for

with for president becomes incapable of executing the office um but he also gets through you know

the the the 26th amendment which reduces the voting age from 21 to 18 right with a student

anti-war movement had really fought for that his um he was not a big fan of the ERA but his wife was

and she kicks him in the pants and he gets that down but the thing he really cared about the most

and is the heartbreaker of i mean in my mind of of the book is the abolition of the electro college

so there had been a lot of concern about the electro cuts like probably the most common most

frequently introduced amendment on the floor of congress easy to reform or abolish the electro

because given changing population it's a ticking time bomb especially with a polarized electorate

it's a ticking time bomb like before you know 2000 it was not common for someone to win

the popular vote and lose the election right but that has happened several times in the 21st century

and it happened or seemed like it was about to happen in bison and people really worried about

that because they thought that i think rightly um it's really hard to even understand what the

healthy electro colleges and why we haven't and so the the democratic legitimacy of a president

elected who has lost the popular vote that's tough for people to take it just is people are

uncomfortable with it and so there were a bunch of plans different like reforms that would

make that less likely and then there was just like let's just get rid of it and by thought

this was the natural successor to the 25th amendment that which was also about presidential

succession and legitimacy of of whoever's holding the old of oval office that okay so here's

another problem of presidential succession which is the electro college and the likelihood of

of someone winning winning the white ass who's did not win the majority of the votes so he um

um i'm sorry i realized my answers become like tales no i want i want them to be tales this is great

this is great yeah yeah he he thinks he's got this in the bag because he gets like he does a survey

of like every political scientist in the country they all approve it americans and public opinion

polls it's like a way above 80 percent approved abolishing the electro college it passes the house

it's going to go to the senate it's 1969 and really the only people weirdly who oppose

the reform is the NAACP the NAACP has thought since the 1950s before the Roting Rights Act

that the electro college was like one of the few things that amplified the black vote in the north

so blacks can't vote in the south because of Jim Crow but in the north they can vote in

in the cities where they have large numbers their votes are amplified by the electro college that

was of the fifth thinking and so they construed NAACP as an organization construed any attempt to

tinker with the electro college as an as an way to disenfranchise black voters so they hadn't really

like updated their thinking after the voting rights act and they still thought that and by kept

no no this actually is the right thing for civil rights um but like when he introduced that the

NAACP sent a telegram to every member of the senate like urgently begging them to vote against

the abolition of the electro college moment so so there was that problem and he tried really hard

to deal with that without much success because a lot of like the urban league a lot of civil rights

organizations agreed with by but the problem was they alone were not have been able to defeat the

the problem was that Richard Nixon had nominated in quick succession to southern segregationists

to seats on the supreme court and the democrats wanted both of them asked and oh they're very

like kick by would not have seemed like the person who should be wielding the acts but like

some of the guy was a coward and then Teddy Kenny didn't want to do it because he thought he was

going to run for president I don't know whatever they wouldn't do it so they're like birch could

you please defeat these and so he had to go dig up the dirt and destroy the reputations of these

two men one of them really was contemptible but the other one was really not contemptible and Nixon

Nixon well he was a problem for it with Nixon but all the southern segregationists in congress were

like we're never doing anything for that damn guy again and so they refused they voted against

abolishing the electoral college to punish birch by for having defeated the nominations of two

of Nixon supreme court justices and that is why we still have an electoral college

I mean it's so depressingly tithers hat political rather than big ideas yeah and there's a sense

that he spent all of his political capital doing this and there's going to be no one else I mean

maybe there's going to be someone else like him but but that is a depressing notion that it

basically is a place that you kill your political career is in amendments yeah yeah it's there's

like a coded to it too he in the 70s he tries again and I think it's like seven 1977

and it's it's so stressful he there's this quite brilliant conservative constitutional scholar named

his name is Martin Diamond who was really opposed to abolishing electoral college and he comes to

testify and bias committee and then he goes to sit and watch where the other people who are

testifying he's opposed to abolishing it but the other people are testifying we're going to testify

that day about why it's the right thing to do but the Martin Diamond has been so stressed out by his

testimony he has a heart attack in the hearing room and Birchby and Orrin Hatch try to revive him

and the phone like the emergency phone in the room doesn't work and help does not comment a guy

dies and I think the hearings just never resume like it's just it was not going to happen

I mean it just feels like fate is not on the side of abolishing the election which is a horrible

death for this poor man but it's it's um I don't know it's sort of like the narrative gods are

speaking as well yeah yeah I find this when I read history books of things I actually know the

outcome of and I still get to that point where I'm just like just don't go to the theater just don't

go and you have these moments in your book that are like that that are just like they just hurt

your heart in a way because you think oh it could be so different you know just for these little

tiny things yeah yeah yeah so even though there is this sort of one way ratchet of the of the

article five that as you discussed in your book and Roger Lism is on the rise and amendments become

less and less possible you do kind of end on an optimistic note about a sleeping giant that might

awaken and how do you maybe see amendment happening in the future and in why might you be optimistic

about such things partly I feel that this is a strange confession to make I feel public duty

to perform hope so I do all the time and I whether I have it or not maybe that's a misplaced sense

of duty I do think though that we are in a moment in American history of tremendous constitutional

change tremendous constitutional change the powers of the executive have changed dramatically in

you know this the last 10 years the separation of powers has in almost entirely eroded not

entirely but significantly eroded there's a real question of whether this administration will

successfully argue that birthright citizenship is not in fact in the 14th amendment and I think

that puts a lot of pressure on the document right and there's also an argument to be made and

legal scholars have made that a constitution that has become functionally unamendable

lacks legitimacy I think there there is a bit of a crisis of legitimacy to the constitution right

there's that the current document of the Oval Office it says he does not know if it's as

duty to uphold the constitution in spite of having sworn an oath to do just that so I think that

I think it's an unsustainable and untenable situation you hear more about constitutions from AI

companies than you do from the general public right now so I think there's like a pressure point

that we are at I do think there are also a lot of initiatives that are very quiet and sleepy right

now but could awaken so one is an organization called democracy 2076 it's really a youth organization

that's trying to hold citizens assemblies to get people to talk about well it does take forever to

change the constitution honestly it takes about 50 years and historically to get an amendment from

idea to ratification so if you could imagine what the constitution should look like in 2076 what do

you want and just to have those conversations because I think kind of freeing up our imagination is

an important thing to do so I think I think there's a fair bit of that I have heard from so many

readers who have like amendment ideas I guess I have had and still haven't lost some hope that

the hoopla around the 250th you know much of which is either jingoistic or silly could be a way

for people to talk a little bit more about constitutionalism I think there's some real

possibility that some states a number of states have like every 10 or some in some cases 15 years

have a question on the ballot should we hold a constitutional convention and everyone has said no

since 1986 when Rhode Island held one but we used to have state constitutional conventions all the time

and I think they're really good for civil society even if the constitutions don't mean amending it's

fine to just get together and say yes sorry I think there's a fair chance that there'll be some

state constitutional conventions coming about so I don't know I think things are stuck until

they're not and the Berlin world comes down yeah well jillapurr thank you so much for talking

with us I don't just I'm such a fan of your work I really appreciate your time thanks to you both

is a real honor to be on your show I really appreciate it if you want to learn more about

constitutional amendments I highly highly recommend jillapurr's new book we the people it is engaging

is funny is full of fascinating side stories and if you're into audiobooks she reads the audiobook

herself and it's just fantastic join us next month for the constitutional breakdown of article six

which includes the supremacy clause and article seven the 99% invisible breakdown of the constitution

is produced by is a belangel edited by committee music by swan reall mixed by martin Gonzalez

Kathy too is our executive producer Kurt Colstad is the digital director delaney

home is our senior editor the rest of the team includes chris berube jason dillion emit Fitzgerald

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