‘We have the power to rectify. We can transform our conduct.’

A notice from Jill Lepore to her nation: The Constitution was intended for amendments.

In “We the People: A History of the U.S. Constitution,” Lepore, the David Woods Kemper ’41 Professor of American History, revisits primary texts — from personal correspondence to official documents — to illustrate that the Framers anticipated Americans to engage with and revise the text. The book demonstrates how several generations of Americans have been motivated to pursue modifications, enhancements, and broadening of constitutional principles and rights.

The Philadelphia Convention of 1787 was initially convened to adjust the nation’s earlier governance structure, Lepore remarked in a recent dialogue regarding “We the People.”

“However, the Articles of Confederation were essentially unchangeable, leading everyone to abandon that notion,” she stated. “The delegates concluded, no, we’re going to draft an entirely new constitution.”

The Founders acknowledged the necessity for an amendment provision, Lepore indicated. “It simply needed to surpass the one in the Articles of Confederation, which demanded unanimous consent from all 13 states. Hence, they sought a method to facilitate amendments — but not excessively.”

The answer, found in Article V, represented the Framers’ effort at mathematical equilibrium. Amendments may be suggested by Congress or state legislatures that convene conventions. Ratification necessitates a supermajority in both chambers of Congress, along with approval from three-quarters of the states. So far, 27 amendments have been ratified, with the latest in 1992.

“Nobody expected that it would fail to function effectively,” remarked Lepore, who also serves as a professor at Harvard Law School and a staff writer for The New Yorker. “And it is no longer functioning at all.”

This interview has been modified for clarity and brevity.

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Could you share the background of the book? I understand it’s linked to your teaching at the College.

In 2018, I released “These Truths: A History of the United States” and received feedback from numerous readers who appreciated the extensive constitutional history included — a topic they hadn’t encountered while learning about American history. This truly resonated with me, prompting a commitment to incorporate more constitutional history into my teaching.

I had intended to simulate a constitutional convention in a course I instruct at the College, with students forming teams to propose amendments. If they wished to eliminate birthright citizenship or alter the composition of the House of Representatives, I wanted them to review the historical context of those endeavors and draft a white paper to prepare for the convention.

However, I discovered that uncovering the history of past amendment efforts was not straightforward, which I found concerning. How can we ever grasp constitutional potential as a democratic process if we are unaware of past attempts?

Is this what motivated you to establish the digital Amendments Project archive?

Indeed. With support from the National Endowment for the Humanities and Harvard Data Science Initiative, I was able to enlist a remarkable group of College student researchers. Together, we developed a database containing the full text of all 12,000 amendments proposed in Congress.

We also included a dataset of amendment-related petitions submitted to Congress, derived from a project led by Daniel Carpenter in the Government Department and his collaborators: the Congressional Petitions Database. Then, we combed through newspapers, magazines, and social media posts to compile the most comprehensive record possible of every significant proposal to amend the Constitution from 1787 to 2022.

Working with these students was an absolute joy. Eventually, I resolved to write a book exploring the history of the Constitution that considers both the many unsuccessful attempts alongside the amendments that were enacted and the changes brought about through judicial interpretations.

What insights can we glean from examining failed attempts at constitutional change?

The book also delves into initiatives that never reached Congress due to originating from individuals lacking political representation. I found it enlightening to evaluate their critiques of the Constitution — recommendations for its enhancement or repair — alongside those that were successful.

For me, it was quite a journey; a genuinely engaging exploration. Some of the proposals from the Progressive Era are particularly captivating. For example, socialists aspired to abolish the Senate. They strongly opposed the Senate since it was obstructing all their efforts. So, they thought, why not amend it out of the Constitution?

Much of what I uncovered astonished me. I was amazed — and confused — to see how often Southern segregationists during the Jim Crow era pushed to repeal the
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14th Amendment. They weren’t respecting the amendment anyway. What was the purpose of proposing all those repeal initiatives? Much of it was political drama — performances for their voters. This remains accurate for amendment suggestions.

Is there a particular failed amendment that really resonates with you?

The 1969 initiative to eliminate the Electoral College stands out as one of the genuine near-failures. Over 80 percent of Americans were in favor of it. Due to that backing, it likely would have achieved ratification had it passed through Congress. It cleared the House but hinged on just a few votes in the Senate.

The individuals who opposed it didn’t do so because they disbelieved in the amendment. Their votes against it were motivated by political revenge. They aimed to penalize Birch Bayh, the Democratic senator from Indiana who was pushing it forward, for blocking two of President [Richard] Nixon’s Supreme Court candidates. These nominees were Southern segregationists, and they managed to align with the NAACP because the organization believed that abolishing the Electoral College would diminish the political strength of Black voters in the North.

The defeat of the Electoral College abolition stemmed from pettiness, and the implications for American political stability are severe. It was stated back then — and I continue to believe it — that the Electoral College is a ticking time bomb.

As you indicate, the Constitution has been effectively unalterable since the 1970s. What are the available routes for constitutional alteration?

There exist various forms of what is often referred to as “popular constitutionalism.” My Law School colleagues Nikolas Bowie and Daphna Renan are releasing an outstanding book next year titled “Supremacy.” It explores democratic constitutionalism or the informal methods by which everyday citizens can significantly shape the interpretation of the Constitution.

At present, we are in a phase where the Supreme Court possesses a monopoly over constitutional modifications via interpretation. This isn’t unprecedented in American history; similar instances have occurred before. What differentiates the current era is the president’s belief that he has the authority to define the Constitution’s meaning. This stands in stark opposition to the constitutional framework of power separation.

Americans and their elected representatives scarcely mobilize to advocate for new amendments these days. What are the risks associated with this neglect of tradition?

The book is not a declaration demanding we convene a constitutional convention. It serves as a historical account, not a policy directive. However, it illustrates numerous ways we’ve lost the essence of debate concerning foundational issues. Higher education has certainly played a role by relinquishing its educational responsibility to teach youth how to engage in discussions about ideas. This is a concern many faculty members have expressed for years, and now the Harvard College administration is committed to addressing it.

The capacity to be in a room — to recognize differing perspectives, various interpretations, while also establishing common ground and regulations for the scope and nature of the dialogue — is extremely vital. These skills are essential in classrooms. They matter in jury rooms. They are important in a knitting circle or a book club. They form the foundation of a civil society.

As the nation gears up to celebrate its 250th anniversary next year, why should we, the people, care about the amendment process?

I’m not claiming we should utilize the amendment power in the near future. Once more, I am neither a policymaker nor a policy-advocate. Nevertheless, I firmly believe we undermine constitutionalism itself by dismissing the potential for change.

What I refer to in the book as “the philosophy of amendment” is foundational to our constitutional structure. It’s embedded in the very term “amendment,” which shares the same root as “mend.” We can make amends. We can correct our paths.

Moreover, it originates from the populace itself. It specifically arose from the people of Massachusetts insisting on an amendment provision within the Massachusetts Constitution. They turned down the initial Constitution presented to the towns for ratification in the 1770s. Effectively, they stated, “Try again. The Constitution must be amendable, and we are the ones who need to have the ability to amend it.” This was an incredibly significant political struggle.

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