Jill Lepore: Making Amends

By
Donna Hunter

Photography by: Christine Baker

When Jill Lepore took the stage at Cemex on May 4th to present “Amend: Rewriting the Constitution,” it was two days after the Supreme Court draft overturning Roe v Wade had been leaked, the day her response to Alito’s draft opinion was published in the New Yorker and another day of Covid infections spiking around the world. Lepore’s tone, and her announcement that she’d be talking with us rather than delivering her formal presentation, made it feel as if she’d be just as happy talking with us over a casual dinner as with delivering her Wesson lecture, examining the “problems of democracy,” in a large auditorium. And, like a more intimate gathering, only the small number of us physically present that evening were going to have an opportunity to listen and participate. As the Harvard Professor and New Yorker staff writer requested, this was not a hybrid event. Lepore explained: “One of my concerns about the problems of democracy — this is a lesson to ponder — is that our virtual life is too convenient to deliberate, to disagree, to be together to argue, to agree to see each other. It’s in that spirit that I am doing this strictly in-person event.”

Lepore’s more pressing, but related, concern is the seeming unamendability and resultant calcification of the US Constitution. She argues that there are three ways to change fundamental law in the US:  “Amend the Constitution. Interpret it differently. Or topple the government.” The first is no longer happening, the second was never intended because it grants too much power to the Supreme Court — the least democratic branch of the government — so we are facing the third. The significance of constitutional amendability, for Lepore, can hardly be overstated: It “is a practical, historical, empirical reality that there is a point beyond which a constitution cannot be stretched, after which, like the skin of a snake, it snaps, as brittle as bones.” The consequences of such a “snap,” she says, are far greater than even “the durability of American democracy.” 

“How,” Lepore asks, “has the US Constitution become unamendable when amendability was written into it?”

Article V

To begin to understand this conundrum, Lepore describes Article V of the Constitution, which  “governs the government,” and the amendment process detailed within it. She notes that having witnessed the failure of early inviolable state constitutions, the 18th century framers were emphatic about writing into the Constitution the ability to amend it. They realized this was critical, because it provided a safety valve necessary to prevent revolution. Not surprisingly then, in 1798, two years after the first Constitutional Convention created the Constitution, 12 amendments were sent to the states to be ratified and the ten that passed became the Bill of Rights.

Despite this Constitutional commitment to its own amendment, amending the Constitution stalled after 1971. Scholars have argued that US history can be divided into revolutionary and constitutional moments, where intense political struggle yields constitutional amendments: The American Revolution led to the first Constitutional Convention and the Civil War and Reconstruction yielded the 13th, 14th, and 15th amendments. However, Lepore demonstrates that this cycle broke down in the face of the revolutionary moments of the 1960s and 1970s. Rather than amend the Constitution, Congress passed legislation, a significant difference because legislation is more easily reversed. In fact, Lepore argues that the 60s and 70s led to a “decades-long conservative insurgency” from Nixon’s law and order policies to the Defense of Marriage Act; Shelby v Holder, which overturned the Voting Rights Act of 1965; and Dobbs v. Jackson, which will likely overturn Roe v Wade.

The End of Amendments, The Rise of the Supreme Court

Most worrying for Lepore is that changing fundamental law by amendment has been overtaken by the Supreme Court’s undemocratic interpretive process. From 1797 to the present, she explains, despite 14,000 amendments having been proposed, only 33 have left Congress, and only 27 have been ratified. Why? 

Lepore argues that the “culture of veneration” that surrounds the Constitution has led to the belief that the Constitution is unamendable, which, when coupled with the supermajority needed to ratify an amendment, helps explain our Constitutional stagnancy. And while the inability to amend the Constitution threatens the viability of American democracy, the even greater problem, according to Lepore, is that the calcification of the US Constitution inhibits our ability to substantively address global climate change. Of the approximately 200 countries that have written constitutions, 150 of them contain environmental protection clauses. By contrast, although the first Environmental Rights Amendment was introduced into Congress in 1968, at least  four others have been brought to the floor since, but none have ever been ratified. Lepore acknowledges that the continuing global climate catastrophe proves that simply including environmental protections in a nation’s constitution isn’t enough, but maintains that because the US is in the midst of its own constitutional crisis, it “has not and cannot sustainably and substantially address the climate and extinction crisis humanity is facing.”

Complicating Originalism by Making Amends

Lepore is trying to address these grave dangers through Amend, her ongoing humanistic and data-driven project. She is collecting full texts of the 14,000 discarded Constitutional amendments to evidence and “constitutionalize what poorly enfranchised Americans have wanted to do.” Lepore’s research thus far reveals a “relationship between the unamendability of the Constitution and the rise of the judicial theory of originalism,” whose origins can be traced back to 1971, the same year the very last revolutionary amendment was ratified. Originalism claims that interpreting the Constitution requires reading a very narrow set of documents: the Constitution, the Constitutional Convention debates, the Federalist Papers, ratifying convention records and 18th century English dictionaries. It is this theory, Lepore notes, that enables Judge Alito to argue in the Dobbs draft that abortion cannot be a fundamental right, because it is not mentioned in the Constitution.
 
To “shatter the intellectual fallacy” of originalism, which she argues increases disenfranchisement and “distorts the separation of powers,” Amend is structured as a counter archive. As a historian, Lepore insists that accurately interpreting the Constitution requires a broader body of evidence, one that can reveal the complicated context in which the Constitution was written and received, whose perspectives were included and whose were not. For instance, she points to the 1787 New York Packet newspaper where anyone could read Hamilton’s argument in Federalist 1 — which Lepore interprets as his celebration of the people’s ability to design the government they want, “casting off decades of oppression in which most people have been ruled by force” — alongside an ad offering the sale of an enslaved woman and her infant child. Another example is Jane Franklin’s letter to her brother, Benjamin, before he was sequestered as a delegate. Looking at a broader array of material, such as these from the New York Packet and Jane Franklin, provides a more nuanced reading of the Constitution.
 
“We have a whole body of evidence,” Lepore concludes, “that scholars have yet to mine and certainly constitutional lawyers and thinkers and judges have yet to attend to that might give us a much broader sense of the meaning of the Constitution. As James Madison wrote in Federalist 40, ‘the Constitution is of no more consequence than the paper on which it was written unless it can stand the approbation of the people to whom it is addressed’—that’s us.”
 
Lepore is calling upon us—all of us—as concerned citizens, to take the calcification of the Constitution seriously, to think about failed amendments and what we want the Constitution to mean, to meet with people, to form book clubs, to organize locally, because “the Constitution needs to bend if it is not to break.” And at this point, an informed and involved public seems to be our best hope for creating the climate necessary for change.

Donna Hunter is a freelance writer, editor and tutor living in San Francisco. She has a PhD in English from UC Berkeley and was an Advanced Lecturer in Stanford’s Program in Writing and Rhetoric.