Historian reflects on US Constitution, 236 years after it first went into effect

Transcript

ADRIAN FLORIDO, HOST:

This week marks 236 years since the United States adopted its Constitution. On June 21, 1788, New Hampshire became the ninth state to ratify it out of 13 at the time. The Constitution became the blueprint for our nation's government. Today, almost two and a half centuries later, many Americans are worried about our Constitution.

Our next guest has written that, lately, American democracy has begun to wobble, leaning on a Constitution that's grown brittle. Jill Lepore is a professor of U.S. history at Harvard and a staff writer at The New Yorker magazine, where she wrote those words a couple of years ago in an essay about how hard it's become to amend the Constitution and what it might take to save it. Jill Lepore, welcome.

JILL LEPORE: Hey. Thanks so much for having me.

FLORIDO: Forgive this very basic question, but what is the role of our Constitution?

LEPORE: Well, our Constitution governs the government, right? It's the rules about the rules and the rule-makers. And American constitutionalism is just this incredible 18th-century invention. It has a whole bunch of tremendously important innovations that we forget about and rely on all the time, and not all of them are in excellent working order. But our Constitution has lasted for a really long time. People are getting ready already to celebrate what will be its 250th anniversary in 14 years from now.

FLORIDO: We've had 27 amendments to the Constitution, but the last meaningful one was in the early '70s. It was more than 50 years ago. Why has it become nearly impossible to do that, to tack on more amendments to the Constitution? And what does that mean for the country?

LEPORE: What makes it so hard at the moment is polarization. There are other explanations, right? But it's harder to get a constitutional amendment through Congress. It has to get through two-thirds supermajority in both houses. Then it goes to the states and has to be ratified by three quarters of the states. And in a polarized world, like, Congress does nothing. Congress does basically zero at this point. So the idea that both houses of Congress are going to pass an amendment to the Constitution by two-thirds majority is just not going to happen. And that was not anticipated by the framers of the Constitution when they were writing this provision. There were no political parties.

Not only were there not polarized parties, there weren't parties at all. So they just couldn't really imagine that this two-thirds requirement would be as high a bar as they set. But so what do you do if you've watched effort after effort to amend the Constitution fail? Well, then you're going to really try to influence appointments to the Supreme Court, and that really politicizes the nomination and confirmation process, which we have seen. And so now you have this whole - you know, a couple generations ago, conservatives questioned the legitimacy of the Supreme Court and questioned judicial activism. And now progressives do that.

FLORIDO: The fact is that the Supreme Court can change the Constitution, as you say, by simply, you know, reinterpreting it, which is, you know, not a thrilling prospect right now, for example, for liberals who are unhappy with the current conservative court. But, like, more broadly speaking, is that really such a bad thing that that is the way that the document changes?

LEPORE: It's a very different mechanism. You know, most people like that method when they like who's on the court, and they don't like that method when they don't like who's on the court. You can't find a lot of people who are inspiringly consistent on their positions in this regard.

FLORIDO: What is the risk of having a constitution that can no longer be amended?

LEPORE: Well, if you think about it, there's really three ways that you can change fundamental law. You could have a revolution. You could convince the judiciary to interpret the Constitution differently in a way that updates it, makes more sense to you or you could amend the Constitution. And we have kind of really only one of those things currently working. We can go to the Supreme Court and ask the Supreme Court to interpret the Constitution differently.

That doesn't really work right now in the sense that the Supreme Court is not looking to make change. It's looking to restore an original Constitution. Right? It's a regressive kind of change. So what - an amendment doesn't work just because of polarization. So what's left is the risk of insurrection. That's the danger. The danger of having an unamendable Constitution is that the risk of insurrection rises.

FLORIDO: Our Constitution has lasted a pretty long time when you compare it to the constitutions of other countries that are sometimes tossed out after just a couple of decades. What does that say about our Constitution?

LEPORE: Jefferson famously wrote to Madison and said, you know, I think our Constitution should really only last for a generation. It's all about the consent of the governed. The unborn can't consent. So really, every generation, maybe every 20 years or so, we should do this all over again. And Madison said, OK, you weren't at the constitutional convention that sweaty heat dome summer in 1787. It was really damn hard. Keep that to yourself. Like, that's a bad idea.

So he didn't want to go back and redo it every 20 years, but he did actually think amendment would happen fairly frequently. Like, that's the idea. Like, you could have constitutional change without violence. The problem with a constitution that has lasted so long that can no longer be amended is amendment was meant to be the remedy against insurrection. So it's not an accident that people think about this right now, and we've just been through an insurrection. I think a lot of people are worried there's likely to be another insurrection.

FLORIDO: You lead this really fascinating project called the Amendments Project, which is compiling information on every amendment to the Constitution proposed in Congress. You've found more than 10,000 failed attempts to change the Constitution. What are you learning from all of these failures?

LEPORE: A political scientist once said that the failed efforts to amend the Constitution are kind of a better index of the nature of Americans' problems constitutionally than anything else, and they kind of are. Like, you look at them, and you see all these efforts to put in changes that, you know, were not politically possible. Because, remember, for most of American history, most of us who are living today would not have been eligible to vote, right? Women couldn't vote before 1920. Black men couldn't vote before 1870 and effectively really couldn't reliably vote before 1964.

FLORIDO: Much less were any of these people involved in the drafting of the Constitution.

LEPORE: Right. You go back to the 18th century and discover abortion is not in the Constitution. This is not shocking. Like, it's not a shocking piece of information. But if you look beyond Congress and look at what people who were disenfranchised were actually asking for, there's this incredible wealth of petitions, complaints, laments, private letters, diaries, organizations that are asking for things all the time. That is a tradition that the court never looks to when it asks, what's the history of the Constitution? Because it's just not in its ambit of what it considers to be constitutional discourse.

But Americans have been clamoring for constitutional change from the very beginning in ways that are really thrilling and exciting and worth contemplating. Because if our Constitution is going to be interpreted exclusively through the court, we really need a richer, fuller past.

FLORIDO: Well, I've been speaking with Harvard professor of U.S. history Jill Lepore about the U.S. Constitution. Thanks for joining us.

LEPORE: Thanks so much. Transcript provided by NPR, Copyright NPR.