Constitution Breakdown #8: Jill Lepore

I'm Roman Morris. 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 demon 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 and 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 188, 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. Whew. In her book, Jillopor argues that the Constitution is designed.

“It is truly meant to be amended, and before we go any further, it's important to”

to find 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. In formal 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. I would say those might be the three main ones. And just importantly, that when you say that, you mean for those listeners in my not understand

“when this 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's not supposed to be amending the Constitution. So there's a kind of nudge-nudge wink when the Supreme Court says, "Oh, 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 and they have invented and devised that.

Or when the Supreme Court said, in Griswell versus Connecticut 1965, there's a right to privacy that extends to birth control for married couples, 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?”

But the core of your book is actually about the formal part, the formal aspect of a many in 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's not new to the Constitution of 1787. It's new in the Constitution of 1776.

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, in fact, borrow a fair amount from them. So the states, the new states, former colonies, had no government when the royal governor's 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 continent,

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 as 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 I'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 constitution. So that 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 constitutionalist, it's properly ratified.

And then the third idea that emerged as, you know, the third leg of the stool of whatever

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 a new 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 assembly 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, where's the convention? Who told you, you could write a constitution.

That's completely crazy. No, they, no, they just rejected it, and we have to war on. It's a big problem when you go to a constitution, 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”

in 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" that everyone had heard out. Rhode Island as well as like, nah, we don't think so. It was like the tiniest little like speck of a state, and they were like, "We're so big with our bridges."

We say no, we say, so the reason that they, 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 five, it was completely noncontroversial 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, 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 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. So 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,

they anticipated.

“And in fact, there are two different routes, actually, right?”

So maybe you could talk, talk to us about that, and which one became the de facto route? Yeah, I mean, they have, they don't, they don't give this enough attention is one thing to say, like, remember, like, they don't even get to this question, it's, 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 say 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 could decide to hold a red fine convention, and some of these things have been done and some of them have an opportunity.

“We've never had a second constitutional convention, and just failed.”

It's 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 went to the States today, the first thing that would happen would be ever, would be, California would be like, wow, we want this and this and this and this and it, and Texas would say,

we know we want 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 in, there's only 13 states, but they all are like, ah, 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 we're going to officially send to you. So then all the states were like, oh, you mean we can, we can actually add amendments in the

federalists kept going out there with like their whole spin on the thing was ratify first

amend later. Like they like you picture the cheerleader, got ratified first, like this is the shit ratify first amend later, like we just got ratified the 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 send amendments

back to the states. So that's the, and that's the only reason we even have this constitution because eventually the state's like, okay, that seems fine. What did you talk about the nature of amending a constitution, like I was kind of blown away by the idea that you could, you know, you could conceive of a constitution where you just

a race shit and then replace it, but they decided to keep it all and what the thinking went into all of that. Yeah. Yeah, this is weird to me. There's a great book by Jonathan Gennap, that's just out this year and he, he had laid

this all out.

“I think in a lot of review article previously, but it's in his new book as well.”

You know, in which, in it really shakes up your sense of the, I don't know, the scripture

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

Washington becomes president and they see the first Congress and James Madison is a member of that Congress. Madison's often thought of the father of the constitution because he sort of wrote the first draft. Madison didn't really oppose to amending the constitution and he had been really opposed

to what the anti-fatitalist most wanted was a Bill of Rights. I think this is a bad idea and he has a really solid argument about that, but he runs for the Senate. He loses a Senate cease because people like the guy doesn't even like amendments. 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, we said we'd amend it and nobody wants to do it.

It's like the first Congress, they have a lot of other stuff.

“Because it gets to be June of 1789 and on June 8 he gets up and he gives this speech.”

He's 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 it looked like to amend this document. Because what Madison has written isn't just like, on paragraph two, line four, change to theirs. It's like, it's not like an edit, like a track changes.

It's a list of new things.

It's the first, you know, it's like the first amendment, 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 amendments, kind of our set and they should maybe just appear at the end, these people can app calls them the supplementalists, like, they'll be supplemental to the constitution.

But then other people will like, yeah, but 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, well, we've already printed it. Like, like, it's in books, like, in books and stuff and like, it's going to be a pain. It's like, someone's telling me, like, changing the Department of Defense to the Department

of War is going to cost, like, Empteen billion dollars because of the stationary, like,

believe it has stationary in there. 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 never remember this,”

but some years ago, when, like, there was a lot of constitutional fetishes during the Tea Party movement, the Tea Party caucus read out loud the constitution and the floor of Congress. And they skipped over, like, the three fifths called, but they just, like, silently removed it because, you know, 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, would you ever, like, scratched it up? Mm-hmm. I mean, like, that would, we'd have more of a sense that it is amendable if we pictured it as something where, oh, then there was that, like, little squiggly line and there's, like, the bubble where you write in the new thing.

That's right. And, 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 diamonds. 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, the Xi Jinping class where I was having my students do a constitutional convention,

I had one of them to prepare, constitutional amendments all semester. And one of their earliest assignments early in the semester was going to be, like, look up, who, if anyone has ever tried to do the thing that you're proposing, part of your white paper would need to be a previous effort. So let's say you wanted to add a voting rights amendment or something.

You know, your supposed to include, like, who and when and, ahead of a proposed section amendment and what had been its fate. And turn to 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 men, it's, like, some 12,000 that were introduced in the floor of Congress, and again, like, as you say, only 27 ever. We're 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.

to compile a record of the failed constitutional amendments.

This one guy in, like, 1876, or maybe was 1887, like, this is a century after the constitution was written and said, you know, I haven't studied these things. And it turns out, like, is it incredibly meaningful record of the political aspirations

“of the American people to look at the failed amendments, right?”

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, which is how I ended up writing the book, because I'm maybe that

be an interesting way to tell the story of the constitution, because so much of how, I think

Americans think about the constitution as there's this, like, you know, the arc of the covenant, it's the scripture and the secrets and the national archives, or it's like what nine robed justices say it is. And so, like in law school, I mean, with this, Elizabeth, he might contest as one of my experiences of observing how constitutional history to the degree of its taught in law school

is really, it's just like a bunch of supreme court systems. Yes. Absolutely. Yeah. It's like on Tuesday, it's Dred Scott, and then it's Lockner, and then we're around

to board it.

“Like, that's what the constitution is, and I, as a historian, like, what about the people?”

Like, what? What? 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 by the 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. 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. You write about 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 longstanding constitutions, and when they're not amendable. I don't know, we made the one before this was long as 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 as 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 opposed the sugar act, the stamp act, the towns and act, the t-act that, until the course 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, there are 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.

what they would have said a peaceful revolution.

“Amendment was the great, the genius idea of the American constitution in many ways.”

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 violence and insurrection. And so they said, you know, we are preventing an insurrectionary politics from a falling or a republic by introducing this peaceful provision.

So that's another reason I like, I don't know, that I really, I'm such an ameliorist. I'm just not a revolutionary, not a little reformer, I like reformer, no. 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'll re-about this little thing. And we do that, please, like, that, I like that a lot, that's kind of how I rule.

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 round 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 that happen in our history where we have the same anxiety, should we make it a lot easier or should we make it impossible and wonder what your thoughts are in that? Yeah, and yet neither, neither of those efforts has ever succeeded. If you go into the amendments project is the database that my students and I put together, and if you could search by topic and the topic, amend, will pull up results that are amendments

that try to make that revise article five, maybe they're a middle amendment or more difficult to amend the two amend. I would say, you know, it was maybe 2020, the National Constitution Center had three different teams of constitutional scholars, right, it kind of revised constitution. They had conservatives, progressives, and libertarians.

And 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, which was interesting that that was the 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 was kind

“of a non-starter when it came to changing the constitution in a meaningful way?”

Yeah, you know, I think self-build rights, okay, people were happy about that, then there's the 11th and 12th amendment, get in, they're just kind of like, just sort of obvious structural problems that then they get addressed. And then people start trying to do big things.

So I think the 12th amendment was 1803, 1804 is the first time people into Wingland start

really pressing essentially to abolish the electoral college, because the electoral college is so unfair to New England. They're not that, because the slave states in the South have disproportionate power because of the free-fifths 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. Not out of an abolitionist sentiment, but out of a like, we want more power sentiment. And that it's like very quickly clear that's not going to work, but that then leads to, what is it, 1814, there's a heart for a sort of like almost a constitutional convention, it's just only like New England.

And New England gets together in heart for new 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 are really not going to work, what are we going to do, and they start threatening to succeed from the union.

Mm-hmm. So you already have that, and then the next kind of big crisis in 1830s, when South Carolina starts threatening cessation over the tariff, there's a whole kind of, by the 1830s. Now, is it really that there's concern that the article five doesn't work?

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? You can just nullify it. That is, we're not really, the federal government is in sovereign, only the states are sovereign.

And like they're just like, like recommendations that Congress will allow us. So like, it's just the league, we're a confederacy, so you're not a union, right? League, you already have that. So I'm just using 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, and that

cannot be addressed by article five, not because the slave trade thing that is prohibited by 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. 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. But what's remarkable then, of course, are the reconstruction amendments? They happen, all once, seemingly, historically, right, they happen very quickly. Yeah.

And that seems like a real turning point, right, and maybe you could help us understand, like,

“why do you 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 are the dates of their ratification. 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 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 in the 13th, the 13th, the amendments

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 you'd 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, 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. It makes pass in amendment t's here.

It makes pass in amendment t's here. But for you also, there's the real turning point, I guess, historically in your story, is 1971. In fact, if you go back to our view articles going stretching the past 50 years or so, you find titles like the frozen article 5, the Komitose article 5, all of these crazy

metaphors. So 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 Amendment, essentially, all at once. The progressive amendments, there are four amendments between 1913 and 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 like it.

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, I say, has been rising since 1968.

And there's no sign of it really, I mean, there's some variability, but the double sub-majority 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 I take on my part, but Congress can do nothing. [LAUGHTER] Yes, yes. Yes, yes, yes. Congress is useless, right?

Congress can accomplish absolutely zero.

“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 say that, 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 Grizzole V. Connecticut from 1965, and then he's going to be opposed

to Roe V. Wade. 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 are like, why are we going to bother trying to use article five, 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 fiscal conservatives. So they come up with this idea, which is, well, we want to change the Constitution, but we've been saying for years, we don't believe in judicial activism and we pose to the war in court, everything the war in courts done really since Brown, like, oh, that's really 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, the overturned row view”

weighed with the Dobbs 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. What we'll do is we'll return, in our 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, the premise is, you know, we're not doing very much, although it can be hierarchical. You know, one of the, yeah, you've talked about Dobbs, 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 asked the question, when the police who didn't exist in the 18th century use 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. It's really cookie. I like the more you look at it just, like, flat, like, look at it, look at it, you're like, it's just such a rank 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 odd, but it is intention with, again, what I call the philosophy of amendment, right?”

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 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, how do you grade them? I mean, I think I try to say, like, think about originalism, like, I think it's very smart people are originalists, and they're very smart, very principled people, and I respect them, and I take for granted the good faith with which they undertake their work. 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, the sources that originalists will use to determine the original meaning of

the Constitutional or its intention, or whatever, is the Constitution itself, the text, the records of ratifying convention, James Madison's notes on the Constitutional convention, and the federalist papers, and maybe a dictionary.

From the point of view of a historian, you would never artificially bound your source material.

If I were interested, if I had a historical question about, I wanted to understand, you know, the Biden years as a historian, 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 what I'm going to look at.”

You learn a lot about the Biden White House with those three sources, but it would be just bizarre, like that's a D, like, if you want to understand the Biden White House or the Biden Presidency, that's just not how you would go about it, and maybe that's unfair. The sources that originalists use are very definitive sources about what the people who were in Philadelphia in 1787 may have thought, but since the whole premise of the Constitution

was that it isn't a spirit of the people, you surely, like, when I tried to tell the story of Philadelphia in 1787, you're interested in what they would call the time to 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.

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 it comes, it's a thread in your book that you can, it's this creeping thread that that grows. It's not just starting in the '70s, like, there's this sort of, the big bang of it to me is the Dolly Madison publishing the Madison papers or something, well, all of a sudden

“you have to, like, pay attention to what they were thinking and not really think about it being”

an amendable living document, but like, we're going back, and that's 50 years after the fact. Yeah. Yeah. I'm interested in that as the creeping force of originalism as under different names as it sort of goes through the American history.

Yeah. There are 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 originalist thought. There's a moment in the oral arguments at Brown v. Board in 1954, it was our good twice,

where this guy arguing for keeping schools segregated, quotes at length, Tony's decision

and dreads got about how the framers really, we need to always be deferring to the original

intent of the framers, and they could never possibly imagine that black could be citizens. I mean, it is a century after dreads got, and there was a war over that, and I'm like,

opinion, right? Yeah.

“That's what the research that Tony, the Chief Justice Roger Tony offers is to prove that the framers”

would never have intended for blacks to be citizens based on his reading of history.

And that's the original estimate of Brown v. Board, if you'd be clear, like modern originalists are not like defending the segregation, it's not the project of originals. But that is the reason, it was 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 Chief Justice Earl Warren issues his opinion in Brown v. Board, he says the history is inconfllusive. I think, like, and in the history is murky, but his thing is like, just the way to say, like, the history doesn't matter. If we were to constantly defer to the history and tradition of this country, we as a court

could only ever reinstantiate racial divisions.

We could never free the people from them.

And so he just like, let's start again. And that's, this guy, I've never seen him really written about by legal scholars, but his name is David J. Maze, who was a Virginia lawyer and quite talented as to anyone. The Pulitzer Prize in 1953 for a biography of Edmund Pendleton news, 18th century Virginia, Maze actually does the historical research for the segregation side of the argument

of Brown v. Board of Education. And he's really pissed off when, or Warren says, the history is inconclusive.

Because Maze is like, no, it's not.

(laughter) In his pre says, the primers of the 14th Amendment did not intend for black and white children to go to school together. They did not intend to be banning segregated schools. And so he dedicated, he's the architect of what was called massive resistance in the cell,

which is just refusing to enact 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 that get picked up in full late 60s by Robert Bork. So he is kind of a missing link between the Brown case and what becomes the Borkian argument in 1971. And again, like not to say, originalism is a rejection of the Brown decision. It is very frequently in conflict with the reasoning behind the Brown decision, which was history doesn't matter.

We need to do the right thing, right? 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 1910s and he writes about how exciting it was.

Then 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 50s arguing per segregation, and then he writes the intellectual justification for originalism in the 60s. And it's kind of all spelled out in the diary, which has been printed, because just really recently, within the last 10 years. And great scholar edited and printed, had printed the diary, and it's, you know, it's the autobiography of segregation.

“You know, part of this is, yeah, 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 grand diamond of the Supreme Court. But that's the only place we turn to in 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 of course, in our era, it's liberals who made the Supreme Court that monarchical power, right?

Like, when the court is conservative as it was in the progressive era, progressives are all about amendment and attacking the court.

And the morning judicial supremacy, labeling it that and building it. And then, for the middle decades of the 20th century, when the court is liberal, conservatives are really mad about judicial activities and judicial supremacy. But then, once conservatives get control of the court again, now then they're pretty happy with the court having all this power. And then, liberals are upset with the court having the power. Like, it's important to just note that 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 5 amendments. I mean, mostly what you describe is history of amendments not passing. But there are a few kind of, I don't know, amendment heroes in your story who, like, get a bunch of stuff done.

And I was particularly sort of enchanted by Senator Birch by, who is the last kind of amendment warrior that existed before the nail on the coffin of Article 5.

“Could you describe Birch by and his mission in life?”

Yeah, I love this guy. Like, I am a archived rat. The historians are in two varieties. There's archived rats and then there's like people who make sweeping generalizations. I work really hard to say something sweeping, but like, I just could spend so much time with Birch by.

So he's a guy from Indiana, a Democrat. Very, very handsome, charming. He's kind of like the Kennedy of the Midwest. And people thought he was like going to be a presidential container in fact. I saw at the Democratic nomination, I think it's 68, briefly.

But he, he does have a lot of degree. And so when he gets to Senate as a young Senator, Jim Eastlin, who the big Mississippi segregation is to share the Senator judiciary committee. Put some on this graveyard committee, which is the Senate judiciary committee's subcommittee on constitutional amendments. And it's like where ideas go to die. You have an idea for it amendment and it goes to that committee and you nothing's ever going to come out of that committee.

But he's very ambitious guy though. So he's like, I don't know, maybe we should hold some hearings on some stuff. And Eastlin's like, dude, do not hold hearings on these things. Can I tell you? The things people want to do when constitutional amendments are 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.

I mean, that's a little bit later, but he's basically gets through for constitutional amendments.

And in that decade, and he also is significantly responsible for getting the 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. 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 Johnson had also been shot in Texas or in Dallas that day in November of 1963. So the 25th amendment makes sort of succession presidential succession and provisions for if a president becomes incapable of executing the office.

“But he also gets through, you know, the 26th amendment, which reduces the voting age from 21 to 18, right?”

The student anti war movement had really fought for that. His, he was not a big fan of the ERA, but his wife was. And she kicks him in the pants and he gets that done. But the thing he really cared about the most and is the heartbreaker of, I mean, in my mind of the book is the abolition of the electoral college. So there had been a lot of concern about the electoral gets like probably the most common, most frequently introduced amendment on the floor of Congress.

Easy to reformer a ball state electoral college. 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.

“And by's Erin, people really worried about that because they thought that, I think rightly, it's really quite even understanding what the held the electorate colleges and why we have it.”

And so the Democratic legitimacy of a president elected who has lost the popular vote, that's tough for people to take.

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. That which was also about presidential succession and the legitimacy of whoever's holding the old of Oval Office. That, okay, so here's another problem of presidential succession, which is the electoral college. And the likelihood of someone winning the White House, who did not win the majority of the votes. So he, I'm sorry, I realize my answer has become like tales.

No, I want them to be tales, isn't great.

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 prove it. Americans and public opinion polls, it's, like, a way above 80% approaching abolishing the electoral 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 Roding Rights Act that the electoral 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 the cities where they have large numbers. Their votes are amplified by the electoral college.

That was of the thinking. And so they construed NAACP as an organization construed any attempt to tinker with the electoral college as an, as a, in a 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 saying, no, no, this actually thinks the right thing, the right thing for civil rights. But like when he introduced that, the NAACP sent a telegram to every member of the Senate, like, urgently begging him to vote against the abolition of the electoral college.

So, so there was that problem and he tried really hard to deal with that without much success because a lot of, like, the, 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 amendment. 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 act and, oh, they're very, like, by would not seem 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, "Burch, 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 whom really was contemptible, but the other one was really not contemptible. And Nixon was a problem for Nixon.

But all the Southern segregationists and 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 "Burch" by, for having defeated the nominations of two of Nixon's Supreme Court justices.

“And that is why we still have an electoral college, I think that would be the only reason.”

I mean, it's so depressingly tipped for tap political, rather than big ideas. 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 that is a depressing notion that it basically is a place that you kill your political career is in amendments. Yeah, yeah, there's like a code to it to he, in the '70s he tries again. And I think it's like '17, '17.

And it's so stressful. There's quite brilliant conservative constitutional scholar named Martin Diamond. He was really opposed to abolishing electric college and he comes to testify in Biden's 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 who are testifying, we're going to testify that day about why it's the right thing to do. But Martin Diamond has been so stressed out by his testimony, he has a heart attack in the hearing room.

And 'Burched by an orange hatch, tried to revive him. And the phone, like the emergency phone in the room doesn't work and help does not come in the guy dies.

“And I think the hearing's just never resumed. Like it's just, it was not going to happen somehow.”

It just feels like fate is not on the side of abolishing the life room. It's just a horrible death for this poor man, but it's, I don't know, sort of like the narrative gods are speaking as well.

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. So even though there is this sort of one-way ratchet of the article five that, as you discussed in your book, and regalism 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 why might you be optimistic about such things?”

Partly I feel that this is a strange confession to make. I feel a 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, the last 10 years. The separation of powers has almost entirely eroded not entirely, but significantly eroded. There's a real question of whether this administration will successfully argue that birthright to this relationship is not effect 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 in legal scholars have made that a constitution that has become functionally unamendable lacks legitimacy.

I think there is a bit of a crisis of legitimacy to the constitution, right? There's that.

The current document of the Oval Office says he does not know if it's his duty to uphold the constitution in spite of having sworn enough 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 was 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 a minimum ideas. Go talk to 2076. I guess I have had and still haven't lost some hope that the hoop will are 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 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 constitution don't meet a mending, it's fine to just get together and say, "Yeah, it's all right. We have a little debt."

But 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 Wall comes down. Yeah.

Well, Jill, of course. Thank you so much for talking with us. Thank you so much. I'm such a fan of your work. I really appreciate your time. Thanks for seeing both. It was 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 Jill reports new book.”

We, the people, it is engaging. It is funny. It 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 Isabelle Angel, edited by committee. Music by Swan Rial, mixed by Martine Gonzalez.

Kathy 2 is our executive producer, Kurt Colestead, is the digital director Delaney Hall, as our senior editor. The rest of the team includes Chris Bruwe, Jason Delion, Emmett Fitzgerald, Christopher Johnson, Vivienne Lay, Lashima Dawn, Joe Rosenberg, Kelly Prime, Jacob Medina Gleason, Talon and Rain Stradley and me, Roman Mars.

We are part of the Series XM podcast family. Now headquartered six blocks north in the Pandora building.

“In beautiful, uptown, Oakland, California. You can find the show on all the usual social media sites as well as our own discord server,”

where we have fun discussions about constitutional law, about architecture, about movies, music, all kinds of good stuff.

You can find a link to the discord server as well as every past episode of the Comma Book Club and every past episode of 99PI and 99PI.org. [music]