Jill Lepore: Making Amends
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?”
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
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.