NPR’s Adrian Florido talks with Harvard history professor Jill Lepore about where the U.S. Constitution stands 236 years after its ratification.
ADRIAN FLORIDO, HOST:
This week marks the 236th anniversary of the adoption of the United States Constitution. On June 21, 1788, New Hampshire became the ninth of the then 13 states to ratify the act. The Constitution becomes the blueprint for our nation’s government. Today, almost two and a half centuries later, many Americans worry about our Constitution.
Our next guest writes that lately, American democracy has begun to falter, relying on an increasingly fragile constitution. Jill Lepore, a professor of American history at Harvard University and a staff writer for The New Yorker magazine, wrote these words in an article a few years ago about amending the Constitution. How difficult and how to save the Constitution. Jill Lepore, welcome.
Jill Lepore: Hey. Thank you very much for having me.
Florido: Pardon this very basic question, but what is the purpose of our Constitution?
LEPORE: Well, our Constitution governs the government, right? It’s about rules and the rule makers. American constitutionalism is this incredible 18th century invention. It has a whole bunch of really important innovations that we keep forgetting about and keep relying on, and not all of them are in good working order. But our Constitution has lasted a long time. People are ready to celebrate the 250th anniversary in 14 years.
Florido: We had 27 amendments to the Constitution, but the last meaningful amendment was in the early 1970s. That was over 50 years ago. Why would it be nearly impossible to do this with more amendments to the Constitution? What does this mean for the country?
LEPORE: The difficulty right now is polarization. There are other explanations, right? But getting constitutional amendments through Congress is more difficult. It must pass by a two-thirds supermajority in both chambers of Congress. It then goes to the states and must be approved by three-quarters of the states. In a polarized world, Congress does nothing. Congress has done essentially zero work at this point. Therefore, the idea of passing a constitutional amendment by both houses of Congress with a two-thirds majority is not going to happen. The framers of the Constitution did not anticipate this when they drafted this provision. There are no political parties.
Not only are there no polarizing parties, there are no parties at all. So they really can’t imagine that the two-thirds requirement will be as high as they set it. But what would you do if you saw effort after effort to amend the Constitution fail? Well, then you’re going to actually try to influence Supreme Court appointments, which really politicizes the nomination and confirmation process, which we’ve seen. So now you have this whole – you know, generations ago, conservatives questioned the legitimacy of the Supreme Court and questioned judicial activism. Now progressives are doing just that.
FLORIDO: The fact that, as you say, the Supreme Court can change the Constitution by simply reinterpreting it, you know, right now, for liberals who are unhappy with the Constitution, that’s not a Exciting prospect. But, more broadly, is the way files change really a bad thing?
LEPORE: It’s a very different mechanism. You know, most people like this approach when they like the person on the field and they don’t like it when they don’t like the person on the field. You won’t find many people who agree on this.
Florido: What is the risk that the Constitution will no longer be able to be amended?
LEPORE: Well, if you think about it, there are actually three ways to change the Basic Law. You can start a revolution. You can convince the judiciary to interpret the Constitution in a different way, to update it, that makes more sense to you, or you can amend the Constitution. We actually only have one of them working at the moment. We can go to the Supreme Court and ask the Supreme Court to interpret the Constitution differently.
That’s not really working right now, in the sense that the Supreme Court isn’t looking to make changes. It is seeking to restore the original constitution. correct? This is a regressive change. So what – the amendment won’t work because of polarization. What remains then is the risk of rebellion. This is where the danger lies. The danger of having an unamendable constitution is that the risk of rebellion increases.
Florido: Ours has been around for a long time compared to other countries’ constitutions, which are sometimes abandoned after just a few decades. What does this say about our Constitution?
LEpore: Jefferson wrote to Madison and he said, you know, I think our Constitution should really only last one generation. It all depends on the consent of the governed. The unborn cannot consent. So really, every generation, maybe every 20 years or so, we should do it again. Madison said, well, you didn’t attend the Constitutional Convention that hot summer of 1787. Keep this to yourself. Like, this is a bad idea.
So he doesn’t want to go back and redo it every 20 years, but he does think revisions will happen fairly frequently. Like, that’s the idea. Like, you can change the constitution without violence. The constitution has been in place for so long that it cannot be amended, the problem is that the amendment was meant to be a remedy for the rebellion. So it’s no accident that people are thinking about this right now, we just had a rebellion. I think a lot of people are worried about the possibility of another rebellion.
Florido: You lead this really fascinating project called the Amendment Project, which is compiling information on every constitutional amendment proposed in Congress. You have discovered over 10,000 failed attempts to amend the Constitution. What did you learn from all these failures?
LEpore: A political scientist once said that failed efforts to amend the Constitution reflected the nature of America’s constitutional problems better than anything else, and they do. Like, you look at them and you see all these efforts to make changes that, you know, are politically impossible. Because, remember, for most of American history, most of the people we live today were not eligible to vote, right? Women could not vote until 1920.
Florido: Very few of these people were involved in the writing of the Constitution.
Lepore: Yes. If you go back to the 18th century, abortion is not in the Constitution. This isn’t shocking. Like, that’s not a shocking message. But if you look beyond Congress and see what those disenfranchised people are actually asking for, you’ll find an incredible amount of petitions, complaints, condolences, personal letters, diaries, and organizations that have been making demands. This is a tradition that courts never consider when asking “what is the history of the Constitution.” Because it does not fall within the purview of what it considers to be constitutional discourse.
But Americans have been calling for constitutional change from the beginning, in ways that are truly exciting, exciting, and worth pondering. Because if our Constitution is to be interpreted entirely through the courts, we do need a richer, more fulfilling past.
FLORIDO: Well, I’ve been talking about the U.S. Constitution with Jill Lepore, a professor of American history at Harvard University. Thank you for joining us.
Lepore: Thank you very much.
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