Constitution Breakdown #8: Jill Lepore

This episode of the 99% Invisible Breakdown of the Constitution focuses on Article 5, which outlines the process for amending the U.S. Constitution, with historian and author Jill Lepore. Lepore argues that the Constitution was designed to be amended, and that amendments can occur formally through Article 5, or informally through judicial decisions and evolving practices. The formal amendment process, as described in Article 5, is a single, complex sentence. It allows Congress, with a two-thirds vote in both houses, to propose amendments, or a convention called by the legislatures of two-thirds of the states can propose them. For any proposed amendment to become part of the Constitution, it must be ratified by three-fourths of the state legislatures or by conventions in three-fourths of the states. There are also specific protections against amendments affecting certain clauses before 1808 and against depriving states of equal suffrage in the Senate without their consent. Lepore emphasizes that the concept of a written, amendable constitution emerged with the first state constitutions in 1776. Before this, England's unwritten constitution offered no peaceful recourse against unconstitutional government actions, leading to revolution. The American revolutionaries sought to create a system where the people could peacefully alter their fundamental law. Key principles of this new constitutionalism included: constitutions being written by specially elected bodies, popular ratification, and the ability for the people to amend the document. Early state constitutions experimented with these ideas, with some failing due to a lack of amendment provisions or popular involvement. The framers in 1787 included Article 5 because the Articles of Confederation were unamendable, requiring unanimous consent of all states, which consistently led to deadlock. The goal was to create a constitution that was stable but also adaptable. They aimed for a "Goldilocks" balance: amendable, but not too easily, to ensure stability. This led to the double supermajority requirement. Article 5 actually presents two routes for proposing amendments: 1. Congress proposes amendments. 2. A national convention is called upon the application of two-thirds of the state legislatures. Similarly, there are two methods for ratification: 1. Ratification by state legislatures. 2. Ratification by state conventions. While the convention route for proposing amendments has never been used, the process of amendment itself proved complex from the outset. During the ratification of the Constitution, states proposed numerous amendments, leading to the Federalist promise to "ratify first, amend later." This led to the Bill of Rights, which was a direct result of this promise. James Madison, initially opposed to a Bill of Rights, became a key figure in its creation after losing a Senate race due to his stance. He introduced the amendments, which were then debated and sent to the states. A significant debate arose about how these amendments should be incorporated into the Constitution. The "supplementalists" argued for them to be added as a separate list, while "incorporationists" wanted them integrated as textual changes, like track changes in a document. The supplementalist approach won out, partly due to practical reasons like the existing printed versions of the Constitution. This has resulted in the Constitution retaining clauses, like the Three-Fifths Clause, even after they have been superseded by later amendments. Lepore's book, "We the People," focuses on the history of amendments, including many that failed. She argues that these failed amendments are crucial for understanding the political aspirations of the American people. She created a searchable digital archive of every attempt to amend the U.S. Constitution to highlight this often-overlooked history. She contrasts the idea of the Constitution as a sacred text or solely the domain of the Supreme Court with the idea that it is a living document shaped by the people's desires and efforts to change it. The framers' inclusion of Article 5 was a deliberate effort to prevent the need for violent revolution, which was the only recourse against unconstitutional government actions in previous eras. Amendment was seen as a peaceful revolution, a genius innovation allowing for peaceful change. However, the process of amending Article 5 itself has also been a subject of proposed amendments, with some seeking to make it easier and others to make it more difficult. Neither of these efforts has succeeded. The realization that Article 5 was becoming a "non-starter" for significant change emerged relatively early. By the 1830s, concerns about the Electoral College and differing interpretations of federal power (like nullification) highlighted the challenges. The issue of slavery, however, proved to be the ultimate constitutional deadlock, making meaningful amendment impossible until after the Civil War. The Reconstruction Amendments (13th, 14th, and 15th) represent a major success story, effectively a "second constitutional convention." However, their passage was contingent on the immense trauma and upheaval of the Civil War and the subjugation of the South. A significant turning point, marking Article 5 as "dead in arrival" in 1971, is identified. This coincides with rising political polarization and the birth of modern originalism. Originalism, championed by figures like Robert Bork, argues for interpreting the Constitution based on the framers' original intent, in opposition to judicial activism. This approach gained traction as both liberals and conservatives found it difficult to pass amendments through Article 5. Conservatives, in particular, used originalism to advocate for constitutional restoration rather than change, as seen in the overturning of Roe v. Wade. Lepore critiques originalism, arguing it is not genuine history and misinterprets the Constitution's intent to be adaptable. The difficulty in amending the Constitution, particularly since 1971, is attributed to extreme political polarization, which makes achieving the required supermajorities nearly impossible. Congress is often seen as ineffective, unable to agree on anything significant. Senator Birch Bayh, a Democrat from Indiana, is highlighted as a rare "amendment warrior" who successfully championed several amendments, including those related to presidential disability (25th Amendment) and lowering the voting age to 18 (26th Amendment). His most significant effort, however, was to abolish the Electoral College. Despite widespread public support and passage in the House, this amendment failed in the Senate due to a complex political maneuver involving President Nixon's Supreme Court nominations, demonstrating how tit-for-tat politics can derail significant constitutional change. Despite the current challenges and the rise of originalism, Lepore ends on a cautiously optimistic note. She believes the Constitution is facing a crisis of legitimacy due to its functional unamendability and the erosion of the separation of powers. She sees potential for future change through initiatives like Democracy 2076, which encourages conversations about the Constitution's future, and the possibility of state constitutional conventions. She believes that things can change, likening it to the fall of the Berlin Wall – a situation that seemed impossible until it happened.