Jill Lepore's Critique: Is the U.S. Constitution Breaking America?
Jill Lepore, a Harvard history professor and New Yorker writer, argues in her new book, "We the People," that the U.S. Constitution, particularly through the lens of originalism, might be contributing to the current political polarization and hindering necessary amendments. She challenges the notion of a static, unchangeable document and advocates for a living constitution that can be amended by each generation.
The Amendments Project: A Deep Dive into Constitutional History
Lepore's argument is built upon extensive research conducted through the "Amendments Project," an N.E.H.-funded initiative. This project, involving data scientists, political scientists, and Harvard undergraduates, has created a publicly searchable archive of over 11,000 proposed constitutional amendments in Congress (1789-2022) and 9,000 amendment petitions (1789-1949). The project highlights the multitude of attempts to broaden the definition of "People" within the Constitution.
Unfamiliar Voices and the "Restless and Unruly" Spirit of Amendment
Each chapter in Lepore's book presents portraits of individuals, often overlooked in traditional historical narratives, who challenged the Constitution. These voices range from Anne Willing Bingham, a Philadelphia socialite, to U.S. Senator Birch Bayh, a key figure in the 25th and 26th amendments. These individuals were driven by a "restless and unruly" spirit, seeking to address the Constitution's perceived shortcomings rather than blindly venerating it.
Originalism Under Scrutiny: Madison's Nose and the Federalist Society
Lepore critiques originalism, the legal theory that prioritizes the intentions of the Constitution's drafters in 1787, arguing it's "a deep historical critique of originalism". She cites the work of historians like Jonathan Gienapp and Mary Sarah Bilder, revealing early uncertainty about the Constitution's meaning and James Madison's manipulation of his convention notes. The irony of the Federalist Society, an engine of originalist thought, altering Madison's silhouette to give him a "nicer nose" further highlights the inherent subjectivity and potential for manipulation within originalist interpretations.
The Constitution as a Living Document: Blood, Sweat, and Tears
Lepore emphasizes the Constitution's organic nature, comparing it to a pregnant woman about to give birth. She argues that it's constructed from "old books and oak trees… sheepskin and goose feathers" but remains alive, shaped by the struggles and sacrifices of ordinary Americans. By highlighting forgotten figures like John Jones and Mary Jane Richardson Jones, free Black abolitionists, she underscores the importance of recognizing the contributions of diverse voices in shaping the Constitution's meaning.
The Stagnation of Amendment and the Rise of Originalism
The article details the decline in constitutional amendments, noting that there has been no significant amendment in over 50 years. This stagnation coincides with the rise of originalism, championed by figures like Antonin Scalia, who viewed the Constitution as "dead, dead, dead!" Lepore argues that the failure of conservatives and liberals alike to achieve change through amendment led to a focus on judicial appointments and interpretations, further politicizing the Supreme Court.
Scalia, Originalism, and the Second Amendment
The article discusses Scalia's influence on originalism and his landmark opinion in District of Columbia v. Heller, which established an individual right to bear arms. It highlights the criticism of Heller, with some arguing that Scalia selectively used history to support his desired outcome. The article then moves towards a review of cases post-Scalia death such as New York State Rifle & Pistol Association, Inc. v. Bruen, in which Justice Thomas applied a “text, history, and tradition” test requiring any law restricting ownership of firearms to demonstrate an analogue to an 18th century law.
The Future of Constitutionalism: Crisis and Uncertainty
The article concludes with a somber reflection on the current state of constitutionalism in the United States. It notes the declining trust in the Supreme Court, the increasing polarization of politics, and the growing calls for abolishing or limiting the Court's power. Jill Lepore's work prompts a critical examination of the Constitution's role in shaping American society and the potential consequences of clinging to rigid interpretations in a rapidly changing world.
