99% Invisible
Hosted by Roman Mars
Roman and Elizabeth discuss Article V, which lays out the process to amend the Constitution. Jill Lepore is our guest.
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This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.
And I'm Elizabeth Jo.
Today, we are discussing Article V, 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, "These Truths: A History of the United States." This fall, she 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 V is just one long sentence, one long, boring sentence. Here it is. "The Congress, whenever two-thirds of both houses shall deem it necessary, shall propose
amendments to this Constitution, or, on the application of the legislatures of two-thirds of the several states, shall call a convention for proposing amendments, which, in either case, shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three-fourths of the several states, or by conventions in three-fourths thereof, as one or the other mode of ratification may be proposed by the Congress, provided that no amendment shall be made prior to the year 1808, shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state without its consent shall be deprived of its equal suffrage in the Senate." Phew.
In her book, Jill Lepore argues that the Constitution is designed, it is truly meant to be amended. And before we go any further, it's important to define what a constitutional amendment really is, because the definition is broader than what most people probably think.
The word amendment just keeps taking on all these adjectives. So, legal scholars like to talk about "formal Article V amendments." And a formal Article V amendment is a constitutional amendment that is properly adopted and ratified into the U.S. Constitution through the methods that are described in Article V. But because an amendment just really means a change, or a revision, or a correction, or a 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.
Mm-hmm.
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.
[laughing]
But I would say those might be the three main ones.
Yeah.
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, makes a new interpretation of the Constitution, we can consider that an amendment as well, even if, 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.
Right.
So there's a kind of nudge, nudge, wink, wink when the, you know, when, 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. They have invented and devised that. Or when the Supreme Court said, you know, in Griswold versus Connecticut, 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 core 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 V, 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 constitutions of 1776. So it's a great time to be talking about this because we think of this 250th anniversary of the country as celebrating 250 years since the Declaration of Independence. But of course, the first state constitutions were adopted in 1776, beginning in January of 1776. And the Declaration of Independence follows from them and in fact borrows a fair amount from them. So the states, the new states, former colonies, had no government when the royal governors fled after the war started in 1775.
And they had to make some decisions and do some things. So they started forming governments in 1776. And John Adams, who was in the Continental Congress, and you know, like, they should all write constitutions and they should basically be the same. Because we believe in written constitutions, Adams said, in England's Constitution is unwritten. But we think the states should write down their constitutions. And people generally also believe those constitutions should include declarations of rights. And increasingly, over time, this wasn't by no means the case entirely across the first state constitutions. But increasingly, a set of expectations emerged about what a written constitution is in a republic.
One, that it has to be written by a specially elected body. Like, a legislature can't write the Constitution because they'll just give themselves too much power. So you have to have a special convention of people who are elected or delegated solely for the purpose of writing constitutions. So there has to be a convention so that the Constitution is properly drafted. Then the Constitution after it's drafted Has to be sent to the people for their ratification. They have to approve it. Can't become a constitution unless it's properly ratified. And then the third idea that emerged as, you know, 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, right? And that the people have to ratify it.
If, if you really believe that the people are sovereign, there is no king who is sovereign. We rule ourselves, then we should write fundamental law and if fundamental law needs to change, we should be able to change it. So this is like the core of constitutionalism in the emerging United States. And so those ideas are, you know, there's been a lot of experimentation, like some states adopted constitutions. Without a convention, some states adopted constitutions with no amendment provision. Some states adopted constitutions where the thing could be amended, but the legislature could be amended. And they all kind of failed. Um, so there's a big fight in Massachusetts in seventeen seventy nine. The state assembled legislature writes a constitution and sends it to the towns for ratification.
And the people of Massachusetts are like, dudes, like, no, we're not going to ratify this. We did, 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 you know, the war on, it's a big problem when you don't have a consti- like, the government has no authority. So they had to hold a constitutional convention in Massachusetts in seventeen seventy nine. The, 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 seventeen eighty seven, which remember. The reason they're even meeting is because the Articles of Confederation, which 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 that 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 like speck of a state and they're like, "We're so big with our britches, we say no, and you don't have to do it, we say." So, so the reason that they're, you know, they have to have a convention to write a new constitution is because the other thing is unamendable. So, this is where a long explanation for why there exists Article 5. It was completely non-controversial at the convention in 1787. Everyone understood this thing had to be amendable. No one was going to ratify it if it couldn't be changed.
So, that's where it comes from, but the provision itself is, it's kind of a pig's breakfast. Like, it's got all these compromises in it. And they just sort of guessed about what might be the right bar. Like, they have this Goldilocks problem, right? Like, they're writing constitution, they want it to be amendable, but they don't want it to be impossible to amend it. It needs to be amendable, but they don't want it to be too easy to amend it because they don't, they want the thing to be sort of stable and, you know, get its legs before people start knocking it over. So, they come up with this double supermajority provision, right?
The two-thirds of both houses of Congress have to pass it. Then it goes to the states and three-quarters of the states have to ratify it. And, I don't know, that doesn't seem crazy from the vantage of 1787, but it turns out very quickly it's much harder to achieve that double supermajority than, than 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 5, people are like, alright, yeah, so it's gonna be amendable. But then there's like 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, alright, whatever, put it all in there. Like, okay, so you can actually, states can petition Congress to amend the Constitution and that's a way to introduce a possible amendment.
States can also hold a convention, there can be a second constitutional convention. And if Congress passes an amendment and goes to the states for ratification, it can be ratified in a number of ways, like the state legislature can just vote on it, or the state can decide to hold a ratifying convention. Mm-hmm. And some of these things have been done and some of them have not been done. We've never had a second constitutional convention. It just failed as 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, everyone would be, California would be like, wow, we want this and this and this in it. 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. And, you know, New York would be like, 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, 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 gonna 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 gonna 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, amend later, pom poms. Like this is their chant, ratify first, amend later. Like we just gotta ratify 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 conventions.
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. And Congress will hold a special session, will look at all the amendments that were proposed in the states and will, will send amendments back to the states. So that's, and that's the only reason we even have this constitution. Because eventually, the states were 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 know, you could conceive of a constitution where you just erase 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 Ginnap that's just out this year. And he, he had laid this all out, I think in a Law Review article previously, but it's, it's in his new book as well.
In which- And it really shakes up your sense of the, I don't know, the scripture-like quality of the document. Yeah. Because, so by, when first Congress is held, so they have an election, Washington becomes president, then they seat the first Congress. And James Madison is a member of that Congress. Madison's also thought of as the father of the Constitution, because he sort of wrote the first draft. Madison had been really opposed to amending the Constitution, and he had been really opposed to what the antifederalists 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 are like, "That guy doesn't even like amendments." But he was like, "He's a congressman."
And so, he, um, he's like, "Okay, I know, I recognize we have to amend the thing. We promised 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 things to do. But it gets to be June of 1789. And on June 8th, 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 add some more, they take some away. But once they decide that they're gonna send them to the states, there's exactly, as you say, 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 2, line 4, change the to theirs." Like, it's not like an edit, like a track changes.
It's a, it's a list of new things. It's the fir-, 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 amendments kind of are set, and they should maybe just appear at the end. These people, Ghanap calls them the supplementalists. Like they'll be supplemental to the Constitution. But then other people are 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, X only on Fridays? Like, it doesn't make any sense. Like, how would people know how to read it? But then there are 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, it's in books, like in school books and stuff, and like, it's gonna be a pain. It's, you know, it's like, someone was telling me, like, changing the Department of Defense to the Department of War is gonna cost like 17 billion dollars because of the stationary. And you're like, "Who even has stationary anymore?" 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 may not remember this, but some years ago, when like, there was a lot of constitutional fetishism during the Tea Party movement, the Tea Party caucus read out loud the Constitution on the floor of Congress, and they skipped over like the three-fifths clause. Like, 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 nobody's ever like scratched it up. You know what 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 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 Twenty Seven. It's actually a book about a lot of failures, right? So many failures, so many interesting failures, failed amendments. So what can we learn from this history of things that didn't happen or not part of the official record?
Yeah, so I was teaching in 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. And part of your white paper would need to be previous effort. So let's say you wanted to add a voting rights amendment or something. You know, you were supposed to include like who and when and had ever proposed such an amendment and what had been its fate. And it turned out that was really hard to do because we don't even really, we just don't have much of a sense of the failed amendments. So I ended up getting a grant from the great and now gone National Down for the Humanities
to spend some years devising a fully searchable public archive, digital archive of every attempt to meaningfully amend the US Constitution. So it's, you know, it's thousands and thousands and thousands of amendments, like some 12,000 that were introduced on 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 in reading about other people's efforts to compile a record of the failed constitutional amendments, this one guy in like 1876, or maybe it was 1887, like this century after
the Constitution was written, said, you know, I've been studying these things. It turns out like It's an incredibly meaningful record of the political aspirations of the American people Yeah. to look at the failed amendments.
And I thought that was true. Yeah. And I mean, I don't love them. A lot of those 12,000 amendments are horrible ideas. But like, but like, they are a record of what people have wanted and not been able to get. And I, I just was like, well, maybe that would be an interesting way. I mean, it's how I ended up writing the book. It's like, 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 Ark of the Covenant, it's the scripture and the sacreds and the National Archives. Or it's like what nine robed justices say it is.
And so, like in law school, that, I mean, Elizabeth, you might contest this, and out of my experience of observing how constitutional history to the degree is taught in law schools, really it's just like a bunch of Supreme Court decisions.
Yes, absolutely.
Like, you know, it's like on Tuesday, it's Dred Scott, and you know, then it's Lochner, and then we're at Brown v. Board. Like, that's, that's what the Constitution is. And I, I am, as a historian, I'm like, what about the people? Like, what, what, this is so weird to me. Um, 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, and often have succeeded in some, to some degree, even without a successful formal Article V 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
a 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 was, should be changing things peacefully when it's necessary to change things. Yeah. And the other is just this notion that the Constitution is actually our Constitution. Yeah. It doesn't belong to the court.
When we come back, we talk about why the framers felt it was necessary to be able to change the Constitution and how Article V amendments began to become functionally impossible.
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You write about the framers of the Constitution being acutely aware of what it would mean if the Constitution wasn't amendable. Because there wasn't a lot of precedent of longstanding constitutions. And when they're not amendable, I don't know, maybe the one before this was longest lasting was 20 years, like outside. 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, when they say, "We oppose the Sugar Act, the Stamp act, the Townsend Act, the Tea Act, until the Coercive Act," they said, "Because they're unconstitutional, because of no taxation without representation." So, they had no remedy for being faced with tyrannical, unconstitutional acts on the part of their government, except revolution.
And the Revolutionary War is so distant in time, and we have so little sense of the kind of suffering that 18th century warfare meant, but...
There are types of misery that are just unfathomable to us in terms of the daily suffering of people in wartime. Modern war is more lethal, for sure. The machinery of modern war is more lethal. But people are living in such a general state of deprivation with essentially zero medical care and hardly any food to begin with. These are people who, by the time you get to 1787, you know, they're only a few years from the peace of Paris, they're not that far from Yorktown. Everybody has lost someone, seen the tremendous amount of suffering that that revolutionary war led to. The idea that the only way you could successfully deal with a government that was acting unconstitutionally
would be by bloody violent revolution was horror, a terror to them. And they were very self-conscious and indeed quite self-congratulatory about the method of, what they would have said, a peaceful revolution. Amendment was the great, the genius idea of the American Constitution in many ways. They, they, you know, the framers themselves said this all the time, because they had invented a method by which the people could peacefully change fundamental elements of their government. Whereas in all previous time, the only method was, was violence, insurrection.
And so they said, you know, we'll, we are preventing an insurrectionary politics from befalling 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. I'm a reformer. I like reform. 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 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 the 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 would be like, right after 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 Corwin 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 term is 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. And yet, neither, neither of those efforts has ever succeeded. If you go into the, the Amendments Project is this database 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 V, by making it either easier-
Like a meta amendment, right.
Or more difficult to amend, to amend. I would say, you know, it was maybe 2020, the National Constitution Center had three different teams of constitutional scholars, write a kind of revised Constitution. They had conservatives, progressives, and libertarians. And they, they have very interesting things that they came up with, but they all changed Article V. And they all, they all made it easier to amend the Constitution, which was interesting, that that was a thing that they recognized as a shared concern. But
yeah, because Article V doesn't work anymore, you can't revise Article V.
How soon into the Constitution existing, did people realize that Article V was kind of a nonstarter when it came to changing the Constitution in a meaningful way?
Yeah, you know, I think, um, so the bill writes, okay, people were happy about that.
Then, um, 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 is 1803. 1804 is the first time people in New England start really pressing, essentially to abolish the Electoral College.
Cause 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 three 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, 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 in Hartford and they're like, man, this constitution is really not working for us.
And we're not going to get any amendments through because this Article Five thing is really not going to work. What are we going to do? And they start threatening to secede from the Union. So you already have that. And then the next kind of big crisis is in the 1830s. When South Carolina starts threatening secession over the tariff, there's a whole kind of.
By the 1830s. 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.
We can just nullify it. Because we're not really... The federal government isn't sovereign. Only the states are sovereign. And like, they're just like, light recommendations that Congress won't allow for us. So, like, it's just a league. We are a confederacy. We're not a union, right? Like, you already have that. So, I'm just musing now, like, over, like, when does... But, like, as a historian, it's clear that why Article 5 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 5. Not because the slave trade thing that is prohibited by, from Article 5 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, yeah.
But what's remarkable, then, of course, are the Reconstruction Amendments. They happen all at once, seemingly, historically, right? They happen very quickly.
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 5 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 segregationists, 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 carpetbaggers. And then, in order to get back into the Union and recognized as a state in the Union, the former Confederate states are required to ratify the Fourteenth 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 Reconstruction, the Thirteen, Fourteenth, Fifteenth Amendments are amazing, and they reconstitute the country." And they are generally thought of by historians as essentially a second constitutional convention. Especially the Thirty-Ninth Congress is essentially a constitutional convention. Like, that's all they're doing, is trying to figure out what should be in the Fourteenth Amendment, which is extremely long and is the most important amendment to the Constitution. So, it is a whole new beginning, a second founding, as Eric Foner calls it. That said, and so, it's a miracle, and that's it. But it's only accomplished because 750,000 people have just died in a civil war, and the defeated South is being treated like a conquered country and disenfranchised.
It makes passing amendments easier.
It makes passing amendments easier, yeah.
But for you also, there's the real turning point, I guess historically in your story, is 1971. Effectively, you say Article Five is dead at arrival in 1971. And in fact, if you go back to Law Review articles going and stretching the past 50 years or so, you find titles like "The Frozen Article Five," "The Comatose Article Five," you know, all of these crazy metaphors. 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 Amendment was 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 and was kind of lost in the paperwork. So I don't think it qualifies. So why have we not amended 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 in the United States has been rising since 1968. And there's no sign of it, really. I mean, there's like some variability, but the double supermajority requirements, two thirds and three quarters, that was devised before there
were even political parties. So that's one reason it's 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, but Congress can do nothing.
You don't say.
Everything knows 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 a 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 Griswold 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 the 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, is not ratified. So liberals are like, why are we going to bother trying to use Article V, it's 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 V Amendment. They want to pass a right-to-life amendment, especially after Roe. 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 posed to the Warren Court, everything the Warren Court's done really since Brown, like all the, 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 gonna 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 overturned Roe v. Wade 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. But what we'll do is we'll return 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 quite radical. You know, one of the, 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, used GPS, which clearly didn't exist in the 18th century, is that a search under the Fourth Amendment? And Scalia says, well, we need to figure out whether that would have been a search in the 18th century. You know, and it's an absurd premise, right? The idea that you'd ask that very question.
Yeah, yeah. It's really kooky. And like, the more you look at it, just like, flat, like, look at it, look at it, you're like, it's just such 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 in tension with, again, what I call the philosophy of amendment, right? If the point of the Constitution is, a 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, you know, how do you grade them?
I mean, I think, I try to say, like, the thing about originalism, like, I, I think very smart people are originalists and they're very smart, very principled people. And I respect them and I, 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, the sources that originalists will use to determine the original meaning of the Constitution or its intention or whatever, you know, or is the Constitution itself, the text, the records of 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, of a historian, like, you, you couldn't, you would never artificially bound your source material. If I, if I were, if I had a historical question about, if I wanted to understand, you know, the Biden years as a historian, like, and I said, well, I'm gonna 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 gonna look at. Like, you'd learn a lot about the Biden White House with those three sources, but it would be just bizarro world. Like, that's, you know, that's a D, like.
Like, I like, if you, if you wanna 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 maybe that's unfair and that, like, the sources that originalists use are very definitive sources about, you know, what the, what the people who were in Philadelphia in 1787 may have thought. But, but since the whole premise of the Constitution was that it, it, it is the spirit of the people, you surely, like, when I try to tell the story of Philadelphia in 1787, you're interested in what they would have called at 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. There's just like a, 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's a threat in your book that you can, it's this creeping threat that grows. It's not just starting in the 70s. Like, there's this sort of, I sort of, 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 amendable living document, but like, we're going back and that's 50 years after the fact.
Yeah, I'm interested in that as the creeping force of originalism, as, under different names as it sort of goes through American history.
Yeah. There are some moments that really blew my mind in 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 1953 or 54, it was argued twice, where this guy arguing for keeping schools segregated quotes at length, Tawney's decision in Dred Scott, 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 blacks could be citizens. And you're like, I mean, it is a century after Dred Scott and there was a war over that one.
I mean, it's like, know your audience. Like, it's surprising that, like, because Dred Scott is, we could call it an originalist opinion, right? It's like, that's what the research that Tawney, the Chief Justice Roger Tawney, 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 originalist argument of Brown v. Board. And I'll be clear, like, modern originalists are not like defending, you know, the segregation. It's not the project of originalism. But that is a... Is an original is like, oh, the framers of the Fourteenth 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 Fourteenth Amendment. And there's that, you know, when Chief Justice Earl Warren issues his opinion in Brown v. Board, he says, "The history is inconclusive." Which is his way of saying, 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, we as a court could only ever re-instantiate racial divisions. We could never free the people from them. And so, he just like, let's start again.
And that's, there's this guy, I've never seen him really written about by legal scholars, but his name is David J. Mays, who was a Virginia lawyer and quite talented historian, won the Pulitzer Prize in 1953 for a biography of Edmund Pendleton, who was an 18th century Virginian. Mays 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 Earl Warren says, "The history is inconclusive." Because Mays is like, "No, it's not. I did the history. The history says, the framers of the Fourteenth 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 dedicate, he's the architect of what is called massive resistance in the South, 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 the late 60s by Robert Bork. So he is kind of a missing link between the Brown case and what becomes the the Borkian
argument in 1971. Mm hmm. And again, like, not to say originalism is, you know, a rejection of the Brown decision. It is very frequently in conflict with the reasoning behind the Brown decision, right? Which was, history doesn't matter. Mm hmm. We need to do the right thing, right? Um, but this May's guy, one of the reasons he's so interesting, and I wish that people would spend a little more time paying attention to him, is he left this elaborate diary that any other person would probably either have destroyed or their descendants would have destroyed. Right. 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 19 teens, and he writes about how exciting it was. Then he goes to, he takes a train to DC specifically so he can see Birth of a Nation. Mm hmm. Like, he is that guy. And then you see him in the 50s, like, arguing for segregation, and then he writes the intellectual justification for originalism in the 60s, like, and it's kind of all spelled out in the diary, which has been printed. Hmm. Because, uh, just, just really recently, you know, within the last 10 years, someone, a great scholar edited and printed, had printed the diary, and it's, um, you know, it's the autobiography of segregation. Hmm. Hmm.
Wow. You know, part of this is, underscores the extreme importance today of the Supreme Court, right? Because if Article 5 is effectively dead, then everybody turns to the court. But I think the consequence of your story is that we have this aggrandizement of the Supreme Court. Like, that's the only place we turn to, and the modern court has 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? So sadly, there's not a lot of 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 it 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 now liberals are upset with the court having the power.
Like, I, like, it's important 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 5 amendments.
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I mean, mostly what you describe is a 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 Bay, who was the last kind of amendment warrior that existed before the nail in the coffin of Article 5. Could you describe Birch Bay and his mission in life?
Yeah, I love this guy. Like, I am an archive rat. Historians are in two varieties. There's archive rats, and then there's like people who make sweeping generalizations. I'm an archive rat. I work really hard to say something sweeping, but like, I just could spend so much time with Birch Bay. So he's this 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 gonna be a presidential contender. In fact, he sought the Democratic nomination, I think in 68, briefly. But he, he does have a law degree. And so when he gets to Senate as a young senator, Jim Eastland, who the big Mississippi segregationist, who's chair of the Senate Judiciary Committee,
puts him 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 an amendment and it goes to that committee and you, nothing's ever gonna 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. And Eastland's like, dude, do not hold hearings on these things, it'll kill you. The things people wanna do with constitutional amendments are like, nobody's gonna win, no one's gonna look good, it's gonna 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, that's a little bit later, but he's basically gets through four constitutional amendments 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, 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 of 1963? So the 25th amendment makes, is 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, of the book, is the abolition of the electoral college. So there had been a lot of concern about the electoral, it's like probably the most common, most frequently introduced amendment on the floor of Congress is either to reform or abolish the 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.
But that has happened several times in the 21st century. And it happened or seemed like it was about to happen in By's era. And people were really worried about that because they thought that, I think rightly, it's really hard to even understand what the hell the Electoral College is and why we haven't. And so 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 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 the legitimacy of whoever's holding the old 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's become like tails.
No, I want them to be tails. This is great. Yeah, yeah, yeah.
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 way above 80% approve 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 Voting 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 and in the cities where they have large numbers. Their votes are amplified by the Electoral College. That was the thinking.
And so they construed, NAACP as an organization construed any attempts to tinker with the Electoral College as a way to disenfranchise black voters.
Hmm.
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 is the right thing. It's 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 them to vote against the abolition of the Electoral College amendment. 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 would not have been able to defeat the amendment. The problem was that Richard Nixon had nominated in quick succession, two Southern segregationists to seats on the Supreme Court.
And the Democrats wanted both of them axed. And, oh, they're very like, By would not have seemed like the person who should be wielding the ax, but like, some other guy was a coward and then Teddy Kennedy didn't want to do it because he thought he was going to run for president. I don't know, whatever. They wouldn't do it. So they're like, Birch, could you please defeat these? And so he had to go dig up the dirt and destroy the reputations of these two men. One of whom really was contemptible, but the other one was really not contemptible. And Nixon, Nixon, well, he was a problem 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's Supreme Court justices. And that is why we still have an Electoral College. That's the only reason.
Wow. I mean, it's so depressingly tit for tat 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, 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, there's like a coda to it, too. He, in the seventies, he tries again.
And I think it's like seven, nineteen seventy seven. And it's, it's so stressful. He, there's this quite brilliant conservative constitutional scholar named, his name's Martin Diamond, who was really opposed to abolishing the Electoral College, and he comes to testify in Bice 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, were gonna 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 Birch Bay and Orrin Hatch try to revive him, and the phone, like the emergency phone in the room doesn't work, and help does not come, and the guy dies. And I think the hearings just never resume. Like, it's just, it was not gonna happen somehow. It just feels like fate is not on the side of abolishing the Electoral. Which is a horrible death for this poor man, but it's, it's, um, I don't know, it's sort of like, uh, 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, 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.
So even though there is this sort of, uh, one-way ratchet of the, of the Article Five, that as you discuss in your book, and ritualism is on the rise, and amendments become less and less possible, you do kind of end on an optimistic note about, um, 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, this is a strange confession to make, I feel a public duty to perform hope. So I do all the time, and 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 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 is a bit of a crisis of legitimacy to the Constitution, right? There's that, the current occupant of the Oval Office says he does not know if it's his duty to uphold the Constitution in spite of having sworn an oath to do just that. So I think that, I think it's an unsustainable and untenable situation. You hear more about constitutions from AI companies than you do from the general public right now. So I think there's like a pressure point that we are at.
I do think there are also a lot of initiatives that are very quiet and sleepy right now, but could awaken. So one is an organization called Democracy 2076. It's really a youth organization that's trying to hold citizens' assemblies to get people to talk about, well, it does take forever to change the Constitution. Honestly, it takes about 50 years, 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.
Go talk to 2076. I guess I have had and still haven't lost some hope that the hoopla around the 250th
You know, much of which is either jingoistic or silly, could be a way for people to talk a little bit more about constitutionalism. I think there's some real possibility that some states, a number of states have, like every 10 or 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, yeah, it's all right. Leave it as it is.
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 Lepore, 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, Steve. It is a real honor to be on your show. I really appreciate it.
If you want to learn more about constitutional amendments, I highly, highly recommend Jill Lepore's 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 6, which includes the Supremacy Clause and Article 7.
The 99% Invisible Breakdown of the Constitution is produced by Isabel Angel, edited by Committee. Music by Swan Real, mixed by Martine Gonzalez.
Kathy Tu is our executive producer. Kurt Kohlstedt is the digital director. Delaney Hong is our senior editor. The rest of the team includes Chris Berube, Jason DeLeón, Emmett Fitzgerald, Christopher Johnson, Vivian Le, LaSham Adon, Joe Rosenberg, Kelly Prime, Jacob Medina Gleason, Talon and Rain Stradly, and me, Roman Mars. The 99% Invisible logo was created by Stefan Lawrence. The art for this series was created by Aaron Nester. We are part of the SiriusXM 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.
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