Constitution Breakdown #8: Jill Lepore

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1:01Buick. Exceptional by design. 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,

2:01or 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,

3:02so 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,

4:02and 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,

5:09there 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

6:09we 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

7:10entirely 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,

8:12we 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

9:13couldn'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.

10:13No 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

11:15supermajority 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,

12:18it 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

13:21it 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

14:26we 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

15:31becomes 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.

16:36So 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

17:40already 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

18:43Constitution 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

19:44you 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

20:44great 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

21:48amendments. 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

22:49we'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

23:51framers 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. The best design serves the person using it and that's how Claude is built. It doesn't give you the quick easy answer it helps you think through the complexity pushes back on your assumptions and works through problems with you. Deep research it digs across dozens of sources where they disagree so you're seeing the full picture not a tidy summary that hides the mess underneath. Try Claude for free at Claude.ai slash 99 invisible and see why problem solvers choose Claude as their thinking partner. There's no small business like your small business and when it comes to choosing an insurance policy your business deserves to be treated with the same care you run it with. The Hartford knows that one size absolutely does not fit all. We help protect your passion for your company with our decades of experience delivering speed ease and accuracy.

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25:56professional on-brand invoices and online payments plus streamline your workflow with built-in appointment scheduling and email marketing tools. I set up RomanMars.com on Squarespace I don't know 12 13 years ago and here's the best testimony that I can give. I never worry about it. I designed it myself it just works it updates on its own it is never down as far as I know it is just great. Head to squarespace.com slash invisible for a free trial and when you're ready to launch use offer code invisible to save 10% off your first purchase of a website or domain. 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.

27:01So 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.

28:04Modern 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

29:05you 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

30:07after 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

31:13Constitution 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

32:15just 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

33:21through 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

34:21so 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

35:21they 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

36:24Confederate 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

37:28only 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

38:30and 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

39:34can 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

40:38didn'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

41:41through 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

42:44dobs 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

43:48that 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

44:53think 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

45:59would 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

47:05to 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

48:10through 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

49:16for 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

50:21and 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

51:26and 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

52:31he 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

53:35like 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

54:37important to to just note that like there's no one who escapes that trap we have to take a break when we come back the story of the last successful champion of article five amendments ready to give your home a style refresh article makes it easy to create a stylish long-lasting home at an unbeatable price they offer a curated selection of mid-send-free modern coastal and scandy inspired pieces that will make a perfect addition to your home all article collections are carefully curated focusing solely on high quality meaningful pieces that will stand the test of time and with article's 30-day satisfaction guarantee you can shop with confidence i'm trying to think of any of the article furniture i haven't talked about at this point i have couches i have dining room sets i have side boards i have what do you call it a media center thing that you put a TV on side tables and tables chairs all of them are still in heavy use in my house and all of them

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56:47in a great rate for five years on a qualifying internet bundle plus ask how to get a five hundred dollar free paid car for a limited time only call today restrictions apply new customers only one new contract required for guaranteed rate five year pricing apply some monthly service charge excluding taxes and fees you know what i could really go for right now literally anything that comes in a McDonald's carton rapper or bag or a McDonald's cup yes any of those items you do it we've got your cravings covered now stop in for the flaky filet of fish the crispy snack wrap or a large fries for just two ninety nine limited time only price and participation may vary 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

57:51of 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

58:56nothing'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

59:581963 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

1:01:04the 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

1:02:10um 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

1:03:16tinker 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

1:04:19going 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

1:05:26like 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

1:06:27death 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

1:07:30to 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

1:08:36I 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

1:09:43the 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

1:10:49constitutional 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 chris for johnson Vivian lay losham adon Joe Rosenberg Kelly prime Jacob Medina Gleason talent and reigns stradley and me roman mars the 99% of his below go was created by Stefan Lawrence the art for this series was created by erin nester we are part of the series xm podcast family now headquartered six blocks north in the pandora building in beautiful uptown oakland california

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