An Unchangeable Constitution?

The US Constitution is “not a living document,” Justice Antonin Scalia once said. “It’s dead, dead, dead.” In her Pulitzer Prize–winning book We the People: A History of the U.S. Constitution, Harvard historian Jill Lepore shows that the document’s demise came slowly. Before originalists like Scalia put the final nail in the coffin, Americans embraced and then abandoned the project of keeping the Constitution alive through mass politics.The Framers, Lepore argues, wanted the Constitution to evolve; that’s why they included an amendment process in Article V. Throughout the nineteenth and early twentieth centuries, Americans channeled this “philosophy of amendment” into energetic movements for constitutional change. There were some successes — the direct election of senators, women’s suffrage — but the stringent requirements of Article V resulted in one of the lowest amendment rates in the world. From the mid-twentieth century onward, progressives increasingly sought relief from the Supreme Court, entrusting nine unelected judges with the task of keeping the Constitution up to date.The last time the United States meaningfully amended the Constitution was in 1971. That same year, Robert Bork outlined the modern doctrine of originalism. For Lepore, originalism represents the institutionalization of a strain of constitutional conservatism that developed in response to the long, popular struggle for amendment justice. The Left’s retreat to the courtroom had given constitutional conservatives the initiative; by putting on robes and picking up gavels, they could not only stifle progressive constitutional reform but advance their own radical project. “The Fifth Article was meant as a constitutional door, open to the people,” Lepore writes. “After 1971, that door slammed shut.”Tadhg LarabeeYour book draws a connection between a moment of constitutional controversy in the early twentieth century and the rise of constitutional conservatism. I was particularly interested in the role of Charles Beard and his 1913 book An Economic Interpretation of the Constitution of the United States, which argued that the Framers had constructed the Constitution to serve their interests as landed elites. Beard built a coalition with labor to advance constitutional reform, but he faced an anti-communist backlash from early constitutional conservatives like James Montgomery Beck.How does discussion over the Constitution today differ from that of Beard’s time?Jill LeporeI find Beard completely fascinating. In so many ways, he’s an intellectual hero of mine. He’s also very much a left-behind historian. The prevailing wisdom among sober-minded American historians today would be, well, he was actually wrong — and that’s why we don’t read that book and his reputation is not what it once was.Maybe that’s true, but his book was nevertheless a really important shake-up of a growing fetishism of the Founding Fathers that was part of an emerging conservative project during the Progressive Era. The term “Founding Fathers” was coined in 1916 by Warren G. Harding, a great enemy of Charles Beard. That fetishized mythology of the founding — and particularly of the drafting and ratification of the Constitution of the United States — furthered a profoundly nationalistic project of immigration restriction, loyalty testing, and, by 1918 or 1919, suppression of political dissent in the United States. Beard saw all that and was active in the struggle against those forces.When Beard started writing An Economic Interpretation of the Constitution, he had been involved in several progressive amendment causes, as had Mary Ritter Beard, his wife, who was a noted historian in her own right. Like many progressives, they adopted a political agenda that had first been put forward in the 1870s and 1880s by populists: farmers, poor wage workers, and poor factory workers seeking to diminish the influence of corporations over the federal government, especially through railroads and the financial industry. Beard had been very active in trying to secure the amendments that established the income tax and the direct election of senators, which were two formerly populist, then progressive causes; he was also involved in the campaign for women’s suffrage.He believed that an obstacle to these amendments was the deliberate campaign from a group of people who were just beginning to be called “constitutional conservatives.” They objected to any kind of popular interpretation or amending of the Constitution, because that popular ferment was coming from the Left at the time.Tadhg LarabeeThe role of popular ferment in your narrative is very striking. There’s the People’s Party, there’s the women’s suffrage movement, and there are alternative constitutional conventions organized by free black Americans in the antebellum period — these are just a few of your examples of bottom-up efforts to reinterpret the Constitution, linked to large social movements.Your book describes a turn to the authority of the Supreme Court that accompanied a decline in popular efforts like these to amend the Constitution.Jill LeporeI think we are impoverished as Americans by a very narrow and quite provincial understanding of the history of the Constitution, in which it is essentially seen as an artifact of the Supreme Court. That understanding of constitutional history is a consequence of the middle decades of the twentieth century, when liberals sought constitutional change exclusively by way of the court.Since the nation’s founding, social movements have sought constitutional change through political action and through constitutional amendment. That history needs to be part of the story. It’s quite disenfranchising, really, for people to have the idea that the Constitution only changes when someone goes before the Supreme Court and manages to convince five justices of something. Obviously, there’s plenty of hand-wringing about that now because that method isn’t working for the Left anymore with the current court.The history of abolitionism, the black conventions seeking equal rights, and the temperance movement show that, for most of American history, seeking constitutional change by way of amendment has made sense. There are long stretches where popular pressure has been ineffective because Article V doesn’t really work, but it’s a striking absence in modern life.Tadhg LarabeeYour book also points out that originalism has an incredibly short history as an organized school of constitutional interpretation. Could you walk us through how exactly it developed?Jill LeporeThe book makes the argument that, among other things, originalism is not original. In the framing of the Constitution and the decades after its ratification, there is very little evidence that anyone involved in the drafting or early interpretation of the Constitution thought it ought to be interpreted the way originalists now say it must be interpreted. But the book as a whole does offer an extended genealogy for originalism.You can trace the emergence of original-intent jurisprudence, say, in the Dred Scott v. Sandford decision. It’s how Chief Justice Roger Taney makes his argument that the Framers of the Constitution never anticipated that black people in the United States could be citizens at any point in its future. There are some very dark and discreditable moments when you see what the backward-looking form of original intent that would later come to be called “originalism” means and does. I spend a lot of time on Brown v. Board of Education, and particularly on a key architect of the massive resistance to desegregation: this Virginia lawyer, who was also an amateur historian, named David Mays. He’s a kind of missing link in the story of the emergence of originalism, which we closely associate with Robert Bork and Antonin Scalia in the 1980s, when the term “originalism” was coined in its modern iteration.Bork first described what comes to be called “originalism” in 1971, writing in opposition to Griswold v. Connecticut and the right to privacy. The word “privacy” itself is not in the Constitution, and Bork objected to the decision that finds it implied in the Bill of Rights; that view strengthened after Roe v. Wade in 1973. Yet conservatives initially tried to overturn Roe and Griswold by constitutional amendment.Social conservatives introduced a flurry of right-to-life amendments into Congress, but they just didn’t have the support. Meanwhile, fiscal conservatives began seeking a balanced budget amendment. This movement had a ton of popular support in the 1970s, and especially by 1979. There was also a movement then to hold a constitutional convention to push through the balanced budget amendment, because it kept passing the Senate but it couldn’t pass the House, which didn’t want its control over the purse strings to be interfered with.Ultimately, when Ronald Reagan was elected in 1980, the people who had been pursuing social and fiscal conservatism by way of constitutional amendment abandoned those plans. With Reagan in the White House, they hoped to win these arguments in the courts by appointing justices. But because they were proposing fairly significant changes and they had been opposing the activism of the Warren Court, they didn’t want to take over the Supreme Court and then act like the Warren Court; they wanted to say they were doing something different. And so they said, “No, we’re not actually changing the Constitution by judicial opinion. We’re restoring the original Constitution by judicial opinion.”Originalism offered a way to become a very activist court while pretending not to be activist, and that’s the logic behind it. It’s not a gruesome, sinister conspiracy against the freedoms and liberties of Americans; it’s an extremely effective political movement with a judicial arm.Tadhg LarabeeThere’s an interesting parallel between your formulation of an activist court that doesn’t want to present itself as activist and the history of neoliberalism more generally. The latter is also a highly radical project portrayed as a return to fundamental ideals — and one that, despite cutting state capacity in areas like welfare, enabled a massive expansion of state power elsewhere. Seeing as many of the controversies your book examines arrive alongside periods of political-economic transformation, I was wondering how you might think about that connection.Jill LeporeI think that is useful for understanding our moment today, which is tumultuous in so many different directions. I’ve spent a lot of time talking to people and organizations, from teachers to museums, about what the 250th anniversary of the country means to them. Unsurprisingly, since we’re marking the 250th anniversary of the Declaration of Independence, people tend to set aside constitutionalism — but the first state constitutions were also written in 1776.Given the rolling constitutional crisis that the nation is enduring and the looming economic disruptions from automation, this ought to be an opportunity for people to engage in frank discussions regarding what a constitution is, what it’s for, how it changes, whether it works, and what to do when it’s not working. Those are hard questions to ask at any point in time, but they’re urgent ones. You don’t get to the point where we are now — in which the executive believes that he alone decides what the Constitution means, and that if he says birthright citizenship is not in it, then it’s not — without first ceding the sovereignty of the people to the court.Tadhg LarabeeHow do you define a constitutional crisis, and what are its implications for politics? Some sort of crisis is obviously happening, but there hasn’t been a single, straightforward fracture where the Constitution is abruptly suspended.Jill LeporeIn the new edition of my book These Truths: A History of the United States, I have a chapter on the age of Donald Trump called “A State of Emergency.” So much of how Trump has consolidated and exercised power is through the rhetoric of emergency, and I think the rhetoric of crisis tends to help Trump more than it helps his political opponents.That’s one of the reasons why I think the “constitutional crisis” language is not ideal, and so I regret tossing it out casually. But it’s clear that we’re in a crisis of the rule of law; we live under an increasingly lawless state. And how we got here and how we get out of this spot — this very tight spot — are questions that we all need to be asking.