Any new book by Jill Lepore is occasion for celebration. Her agile mind, command of history, felicity of expression, wit, and ability to make complicated topics understandable are evident in virtually everything she writes.
These gifts are abundant in her newest work, “We the People.” As the title suggests, the book is a companion piece to “These Truths,” published in 2918. That earlier work used the Declaration of Independence as a lens through which to an analyze American history (i.e., how far have we as a nation succeeded in realizing the “self-evident” truths and “inalienable rights” articulated in that foundational document).
“We the People” announces itself as a history of the Constitution. It covers an impressive amount of ground, including the debates over its composition, which particular ideas were problematic and to whom (Federalist/Antifederalist; North/South), how its many propositions have played out since it was ratified (interesting bit of trivia: future president James Monroe voted against ratification), what we (citizens, legislators, and courts) have made of it, and a good deal more.
Most particularly, “We the People” looks at the topic of amendments. The Framers may have debated whether what we now refer to as the Bill of Rights should be amendments to the Constitution or embedded in the text of the document itself, but there was general agreement that some mechanism had to be included on amending it. The Framers knew that if there were no regular formal way to amend the document so that it reflected changes in the country, the only alternative would be violence. Hence the inclusion of the Article 5.
"By far the most radical innovation of the U.S. Constitution, and of state constitutions," Lepore notes, "was the provision they made for their own repair and improvement by the people themselves, to the end it may be a government of laws and not of men.”
As it happens, amending the Constitution has proved far more difficult than the Framers anticipated. State constitutions had mechanisms for amendment and have done so frequently. Likewise for other democratic countries around the world. But the United States, whose Constitution is older than modern democracy itself, has become incapable of amending its foundational users’ manual: “The Fifth Article was meant as a constitutional door open to the people,"Lepore writes. "After 1971, that door slammed shut.”
Lepore chronicles how this situation came to be. She covers: how the document was viewed and used in the early years of the Republic, the so-called Civil War amendments (“Like the Fourteenth Amendment, the Fifteenth Amendment was barely enforced. Efforts were made to repeal it, but by the 1880s, this was hardly necessary since white Southerners had found ways, far short of repeal, to nullify it; it became, in many parts of the country, a dead letter."), various efforts over the centuries to amend the Constitution to permit child labor and enshrine Christianity as the national religion, and of course debates over civil rights, equal rights, women’s rights, abortion rights, same-sex marriage rights, and on and on. In every case I learned something I hadn't known before.
Two key threads run through the book. The first is that, having lost the ability to amend the Constitution as laid out in Article 5, we have used the Supreme Court to do it for us with its decisions about what passes Constitutional muster and what doesn’t –- an infernal process, as we’ve seen in recent decades, where one era's assertion of Constitutionality can be capriciously overturned by a later Court.
The second thread concerns what has come to be known as Originalism. The United States is the only modern democracy where such a notion has taken root. In a sense, the impetus behind Originalism would not have shocked the Framers. Thomas Jefferson, for example, writing four decades after drafting the Declaration, anticipated that there would be men who “look at constitutions with sanctimonious reverence, and deem them like the arc of the covenant, too sacred to be touched.”
But Originalism went beyond this. “What was new about originalism as it emerged in the last decades of the twentieth century,” Lepore writes, “was its insistence that the only way to interpret the Constitution is to read it the way a probate judge reads a dead man’s last will and testament. James Madison is that dead man.” Worse, Lepore argues, Originalism is intellectually, historically, and morally dishonest because it is based on an inconsistent and often mistaken understanding of what the so-called Origin was. “For the Constitution of the United States to endure, if anything human can so long endure, it needs to bind Americans to one another by way of something other than an imaginary eighteenth century.” (Or as Lepore causticly writes in her discussion of the Bork confirmation hearings, Originalism demanded that Americans “think about [the Constitution] in a very particular ye-olde way.”)
More often than not, the Originalist reasoning in a particular debate was based more on "history" that led to particular outcomes than to actual history. The clearest example of this was the decision involving presidential immunity. At heart, Lepore says, Originalism is the very antithesis of amendment.
“Would judging law be reduced to the act of choosing between competing accounts of the past written by different groups of historians, based on some as-yet-undefined method of determining which account is the correct one? It didn’t work out that way. In a series of crucial cases, the Trump-era Court cited history if it supported a preferred outcome, and if history did not support that outcome, the Court simply ignored the past.”
I can’t begin to capture the breadth and depth of this book, not to mention its many pleasures and it relevance to our volatile time. Instead I will share some passages I found particularly noteworthy.
• “With only twenty-seven amendments, the U.S. Constitution has one of the lowest amendment rates in the world. But since 1789, Americans have submitted nearly ten thousand petitions and countless letters, postcards, and phone and email messages to Congress calling for or opposing constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and over social media. Some twelve thousand amendments have been formally introduced on the floor of Congress.”
• “Efforts to alter these arrangements at the federal level—which included proposed amendments not only abolishing the Electoral College but also reapportioning representation and requiring Supreme Court justices to retire at age sixty-five—all failed. In the states, these efforts nearly all succeeded.”
• “Before the 1920s, the Constitution itself—the sheepskin parchment marked with goose-quill ink—had never been seen by the public. The original document had in fact largely been forgotten and ignored and more than once all but misplaced.” I loved Lepore's description of the well-guarded parade of vehicles bearing the Constitution and Declaration past the Supreme Court building in Washington, DC, as the justices deliberated on Brown v. Board of Education, and how politicians from Southern states were outraged at the decision, claiming it was itself unConstitutional and that an amendment was needed to overturn it.
• In the late 1960s, Indiana Senator Birch Bayh led an effort to get rid of the Electoral College and replace it with a direct popular vote. He came ever so close: “By September 1970, the Bayh amendment had passed in the House, 339–70; it enjoyed overwhelming popular support, polling at more than 80 percent in favor; and it had the (faint-hearted) endorsement of the president, Richard Nixon, the AFL-CIO, the American Bar Association, the League of Women Voters, and the U.S. Chamber of Commerce.” (Interestingly, one of the biggest initial obstacles to the amendment was opposition from the NAACP. Later, unsurprisingly, insurmountable opposition from Southern states led to its demise.)
• “More than three in four Americans supported a school prayer amendment. And members of Congress had also been flooded with mail from constituents, nearly all of it supporting a school prayer amendment; the quantity of congressional mail broke all records. But most churches and the National Council of Churches opposed an amendment.”
• “Two and a half centuries after the American Revolution began, Americans appeared to have altogether abandoned the philosophy of amendment. And the president seemed to have abandoned constitutionalism itself. Asked in 2025 whether he had a duty to uphold the U.S. Constitution, Trump said, ‘I don’t know.’ "