The U.S. Constitution likely would not have been ratified in 1788 without Article 5, which allowed for amendment. Many of the original founders championed the idea that the document would need to change as the country changed.
As historian Jill Lepore points out in her newest book, most of the 27 amendments to the constitution have happened just after times of war or conflict, and after 33 years without an amendment, we may be headed that way again. OPB’s Geoff Norcross spoke to Lepore in front of an audience at the 2025 Portland Book Festival about “We the People: A History of the U.S. Constitution.”
Note: The following transcript was transcribed digitally and validated for accuracy, readability and formatting by an OPB volunteer.
Dave Miller: This is Think Out Loud on OPB. I’m Dave Miller. The U.S. Constitution was built to be changed. That’s what historian Jill Lepore contends in her newest book, “We the People: A History of the U.S. Constitution.” Lepore says the idea of amendment was foundational to the Constitution from the very beginning. And the fact that it has not been amended for 33 years, she says, is cause for concern. Jill Lepore is a professor of American history at Harvard University and a professor of law at Harvard Law School. She’s also a staff writer at The New Yorker. Her many books include “These Truths: A History of the United States.” She spoke to OPB’s Geoff Norcross about the Constitution and “We the People,” in front of an audience at the 2025 Portland Book Festival.
Geoff Norcross: Jill, thank you for being here. We know how many amendments there are, 27. Just to prove the point, how many amendments have been proposed since 1787?
Jill Lepore: There have been about 12,000 amendments formally introduced on the floor of Congress. I made a collection of them for the public at this website called
theamendmentsproject.org where we also collected some records of 9,000 petitions submitted by ordinary Americans to Congress seeking constitutional change. And of course, there are just tens of thousands more ideas out there that have been expressed over the last now nearly two and a half centuries of ordinary Americans seeking constitutional change.
Norcross: I wanna give you a moment to talk about how you know that. Can you tell me a little bit about The Amendments Project?
Lepore: I was designing a course a few years ago and I wanted my students to draft Constitutional amendments and defend the rationale for their ideas, and an assignment I wanted to give them was to research the history of every attempt to do whatever it was they wanted to do. Maybe they wanted to abolish the electoral college, maybe they wanted to introduce the word God into the Constitution, maybe they wanted to make the right to an education a Constitutional right. It was a history class, and I wanted them to also write in their defense of their proposal to offer up a history. And it turned out that was an impossible assignment.
There just was no central way to research that question. You could do elaborate trawling searches through the Library of Congress, but nothing had ever been put together in a way that was easily searchable by topic. So I got a grant to do that work. It took us three or four years, and I’m really happy that it’s out there for any schoolteacher to use. I’ve heard from a lot of teachers who have used it, a lot of citizen groups. It’s free.
Norcross: So, about 12,000 proposed amendments, and 27 actually ratified. That’s a ratification rate of about 0.2%.What’s the broad reason why it’s so hard to ratify an amendment to the U.S. Constitution?
Lepore: Well, I think the reasons have differed over the course of American history, but it usually has to do with party polarization. And we are living in an age of the highest political polarization in American history that really began in the late 1960s to rise, and then it’s been rising almost continuously since then. But even just the existence of parties is a problem for amending the Constitution because when the framers of the Constitution met in Philadelphia in 1787, there were no political parties. Nor did they expect that there ever would be because they had faith in the idea of republicanism – lowercase “r,” – and they thought that parties were antithetical to a republic. They thought if there ever were parties, the republic would fall apart.
So they just didn’t compensate for the existence of parties when they came up with the mathematical formula that they used to make amending the Constitution difficult, but not impossible. They wanted it to be not too easy. You don’t want to amend the Constitution all the time, it interferes with stability. You kind of need to know what’s in the Constitution, but you need a constitution to be amendable, they would have said, for it to have legitimacy. So, the math problem that they were solving for was obsolete by 1800 when the first party system emerged in the United States.
Norcross: In fact, the very idea of amendments was essential to getting the Constitution ratified in the first place, right? How did that work?
Lepore: What they were revising, theoretically, these 55 delegates were sent by the states to Philadelphia charged with revising the Articles of Confederation, which was this treaty among the 13 states that had been devised during the war, right before the war. Something like the European Union. So, where the 13 states were independent states, they had 13 different currencies, they had 13 different navies. And that system kind of limped along through the war, but once the war ended, it was clear it was not a viable form of government. It was too weak of a union. There was only a Congress, and the Congress didn’t have many powers. But the Articles of Confederation were effectively unamendable, because amending them required unanimity. All 13 states had to approve. And no matter what they tried to do, Rhode Island objected. And you’re like, Rhode Island, dude, you guys are so small.
Norcross: Rogue Island.
Lepore: Yeah, it came to be called Rogue Island. They first were gonna amend the Articles of Confederation in 1786 in Annapolis, and the union was so weak that not enough people even showed up for the convention. So the guys who were there are like, let’s do this again in Philadelphia and don’t tell anybody, but when we meet next time, we’re not gonna revise these stupid articles, we’re gonna create a whole new government. We’re gonna write a whole new Constitution. And to do that – because they didn’t have any authority to do that – they did it in secret.
They kept the proceedings secret, they nailed the windows shut. They didn’t want anyone to know what they were doing. And when they were done, they knew that when they sent this new Constitution to the states for ratification, that people would have a lot of complaints about it. So, of course, they had to have this amendment mechanism in there. And when the states were like, “We don’t like this Constitution. It doesn’t have this, it doesn’t have this, we would like to take out that.” And the state started proposing amendments, or like, let’s have another convention to do this all over again, the Federalists, who were Americans who were supporting the ratification, just kept saying, “Look, we need a working federal government. Ratify now, amend later. If you ratify this constitution, we promise the first thing we’ll do when we set up the new government is amend it.” And that promise was necessary because ratification had been, before that, a pretty close call.
So that’s how we get the Bill of Rights. People sometimes think the Bill of Rights was written in Philadelphia in 1787. They weren’t. Kinda near the end of the summer. They started in May, they finished on September 17th. Near the end of the summer, George Mason of Virginia said, “OK, you guys, we need a Bill of Rights.” Like, we forgot to write down that people have rights. And some of the framers were like, “OK, yeah, we don’t need that because this isn’t a monarchy. In a monarchy, you need to list your rights because the king has all the power. It’s a republic. The government only has the powers that we grant it. We don’t need to list the rights. That’s a bad idea.” And Mason’s like, dudes, three hours. Give me three hours. I can give you a list, let’s just get this done.” And they’re like, “No, we’re not gonna.” Like that department meeting that goes on too long, and it’s time to go pick up your kids from soccer practice, and you’re like, “No, the Bill of Rights, that’s gonna have to wait.”
So Mason walked out. Mason refused to sign the Constitution. And he went back to Virginia, and so did Richard Henry Lee and said, “Don’t sign this thing until we get these amendments.” So, ultimately, the states did ratify the Constitution, but then only with that promise that there would be amendments. And so, when Congress finally meets for the first time two years later, 1789…
So, I’m not in the room and I don’t know the read of the room. Am I boring everybody or do you wanna hear what? I totally don’t have to read. It’s kind of killing me.
So Congress meets in 1789. It’s like a whole new government. They have a president. They never had a president before. What does the president do? I think I’ll give an inaugural address. They’re inventing the whole thing. So they get there, and James Madison, who’d been at the Constitutional Convention, goes to the first day of Congress. He’s like, “OK, so, the Bill of Rights, we said we’d do that first thing.” And everyone’s like, “No, we have so much to do. That’s politics. We get it.” So months and months and months go by, and finally, on June 8th, 1789, Madison gets up and says, “I didn’t even want the Bill of Rights.” He really had been opposed to a Bill of Rights. “I didn’t want this, but we said we would do this. So we must amend this Constitution. We promised the states that we would do this.”And that’s how we end up. He writes 12 Amendments and they could be whittled down to 10. Well, he writes more, there had been more than 200 proposed by the states. So the Bill of Rights that we have is the product of that promise of amendment.
But, as you mentioned, the U.S. amendment rate is one of the lowest in the world. Yes, there’ve been 27 amendments, but the first 10 of them came all at once. So really, in a sense, there’ve only been 17. Those were part of the original package.
Norcross: Yeah, these Constitutional amendments come in spurts. And the first 10 was the most important one. But we have high amendment time, we have low amendment time, and we seem to be in a very low time right now. The Constitution hasn’t been substantially amended since 1971. Why doesn’t the 27th Amendment count, by the way?
Lepore: In 1789, Congress sent 12 amendments to the states. And the one that was ratified in 1992 as the 27th Amendment was really actually ratified in 1789, but it was essentially lost in the paperwork. This is also an awesome story. In the late 1980s, there was a kid at the University of Texas, Austin, and in his political science course, he wrote a paper arguing that what then became the 27th Amendment had in fact been ratified in 1789. It concerns Congressional salary. And he looked at all the evidence and was like, I think they just lost track of this one.
He got a C-. And he was so mad that he made it happen. He went to his local legislator in Texas and said, “I have a really good argument in spite of my grade.” And he got it passed again, and just a couple of years ago, he got his grade changed. So it’s not that it’s not significant, it’s not a creation of modern-day political demands and the vicissitudes of time. It’s like “the dog ate my homework.”
Norcross: I’m hearing a lot of that. OK, so we can say that the Constitution hasn’t been substantially changed since 1971. So, 54 years. Why not? What’s going on in these modern times that make it so hard?
Lepore: Well, honestly, it’s always been hard. So, there were those first 10, then there were a couple of fiddly adjustments, the 11th and the 12th Amendment. But it’s really not until the Civil War that you have the 13th, 14th, and 15th Amendment, the Civil War and Reconstruction, that they do the things that it really needed doing. Ending slavery, guaranteeing equal rights, granting Black men the right to vote. But it took 750,000 people dying in the Civil War to get those three amendments.
So you think about, from 1791 to 1865, why wasn’t the Constitution meaningfully amended then? Because everyone knew the main thing that needed to be dealt with was slavery, but nobody could agree about what to do about it. So, that’s not exactly our problem. It’s not like we live in a world where everybody knows what we should be doing. I mean, the South thought we should be guaranteeing that the South could forever have slaves. It’s not that they all agreed about slavery, it’s just they all knew that was the issue.
In our moment though, it really is political polarization. So, for just a little civics reminder, I would say honestly, I have found, in going around the country, a lot of people don’t even know that you can amend the U.S. Constitution because it’s not in living memory. So maybe you could ask the audience if people know how to amend the Constitution, what’s required?
[Laughter]
Norcross: I’ve got a book.
Lepore: That’s so cheating.
Norcross: Article V: “The Congress, whenever two thirds of both houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for proposing amendments, which, in either case shall be valid to all intents and purposes as part of this Constitution when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof as the one or the other mode of ratification may be proposed by the Congress; provided that no amendment which may be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate.” OK.
Lepore: One of the things the anti-Federalists argued about the Constitution and why it shouldn’t be ratified was that no one knew what it meant.
Norcross: But at the time that was like Goldilocks. I mean, just “two-thirds” here and “three-fourths” there.
Lepore: So, what it is, two-thirds of both houses have to pass an amendment, and it goes to the states. It could also go to the states if it came from the stages, from two-thirds of the states. Then ratification, there’s two paths of ratification. Three-fourths of the state legislatures have to vote “Yes,” or three quarters of special conventions held in the states have to vote “Yes.” So it’s like a triple supermajority, both houses plus the states.
What’s Congress doing today, again? Congress can’t do anything.
Norcross: You know, we’re talking about this as if it’s weird, but the un-amendability, or the difficulty of amending the Constitution hasn’t always been viewed as a bad thing. And I’m wondering what the arguments were at the beginning for making it this difficult and making it a hurdle to change.
Lepore: Well, you could have a cynical view, and you could say, well, they made it very difficult because they didn’t really trust the people. This is also the convention that brought you the Electoral College, which was like, we don’t trust the people to elect the president directly. This is also the convention that brought you indirect election of the Senate. In the 1787 Constitution, the people don’t elect their senators directly. The Senate used to be elected by state legislators. It’s not until the 17th Amendment in 1913 that the people get to elect the Senate.
So you could say it was meant to be difficult because they were mistrustful and suspicious of the people, that the Constitution would be frequently amended by tyrannical mobs and majorities that were imposing their bad ideas on the rest of the population. That would be, that would be one reading. And then if you believe that, you would certainly say, we’re really lucky that it has been so hard to amend the Constitution because it could have been amended frequently and produced a lot of political instability, a lot of political chaos, would have interfered with American growth and prosperity, and I think those are defensible views. They’re not really my views, but I think that’s a defensible position to hold.
And I would say that liberals and progressives on the whole in the 20th century, with the exception of the Equal Rights Amendment, which failed, and the Child Labor Amendment, which failed, have been pretty opposed to amending the Constitution because most of the proposed amendments have come from really, the quite far right. That’s been the case since Brown v. Board of Education in 1954. They haven’t gotten any support, but it’s been a much more common move on the right to seek Constitutional amendment in the second half of the 20th century than it has been a move of progressives or liberals.
Norcross: You actually point out that Brown v. Board of Education is the beginning of the idea of originalism. And I’m wondering what the connection there is.
Lepore: The book actually offers a pretty long history of originalism. Originalism under that name doesn’t emerge until the 1980s. There are Supreme Court decisions that, if we look at them now, we would say that’s an originalist opinion. We would use that label. It would be somewhat anachronistic but…
For instance, the Dred Scott opinion in 1857, in which the Supreme Court decides that Black Americans can never be citizens because the Supreme Court Chief Justice who writes the opinion says his reading of the original intent of the framers of the 1787 Constitution suggests that they never intended for Black Americans to ever become citizens. From our vantage, that is an originalist opinion. The whole method of interpretation is not to say,” what’s the right thing for the country, what do the laws say, what is the spirit of the people?” The Dred Scott decision is one person’s opinion about what the framers must have wanted.
Brown v. Board of Education is an entirely different kind of opinion than that. In Brown v. Board of Education, the court had said… The case concerns segregation in public schooling, and the court had asked both sides to present arguments about whether the framers of the 14th Amendment in 1865 had intended to prohibit segregation in schooling, or whether they had not intended that. The pro-segregationists read the records and said, “Oh, no, the framers of the 14th Amendment never imagined that equal protection of the laws, due process, that any of these things could have ever had any implications for public schooling.” And Thurgood Marshall and the NAACP had provided a different body of historical evidence and said, “Yeah, they were trying to end discrimination and provide equal services. And in that case, the Chief Justice Earl Warren said,” The historical record is completely inconclusive. We actually have to make the decision that’s best for the country, and segregated schooling is destroying people’s lives, and it is undermining the very fabric of our notion of freedom and equality and liberty in this country.”
So, in a 9-0 ruling, the Supreme Court ended segregation in schooling. That decision itself, by our lights, is anti-originalist. The judges specifically reject history, “If we have to defer to history and tradition,” the court says,” in Brown v. Board of Education, “we can never move forward. We’re still living in a world of hierarchy and values that, as we admire much about the founders and the framers and that founding moment, we can’t be ruled by their dead hand.” One of the ways that…
[Applause]
It’s a very beautiful opinion, Brown v. Board of Education, I would just remind people to think about what it meant. People knew that the decision was coming down that day. They knew it was gonna be read orally from the bench, that was not that common. The Supreme Court building was filled with reporters. I write in my book about this reporter for the Black newspaper, the Chicago Defender, Ethel Payne. She writes about running out of the room as soon as it’s clear what the opinion is gonna be, and people start calling the radio stations so that it can be put out on the radio. And once it goes out on the radio, you can’t hear anything anymore, even in the building, because at that point most of the taxi drivers in Washington D.C. were Black men, and they all hear this on the radio and they all start honking their horns. And it’s like the whole city erupts in jubilation at the fact that the court said this is what we actually need to do.
But it spawns this whole world of backlash, of course. The Southern segregationists launched what’s called The Massive Resistance campaign to refuse to desegregate the schools. This leads to Little Rock in 1957, when Eisenhower sends in the 101st Airborne to protect schoolchildren that had to go to schools. But it also sets in motion a modern resurrection of what then becomes originalism. It is not to say that originalists want to overturn Brown now. That’s not what originalism is. It would be totally unfair to say. But it does set in motion a whole world of legal thinking that is opposed not only to Brown, but to all the decisions of the Warren Court, because Warren is pretty willing to make that kind of decision going forward throughout his tenure as Chief Justice, all the way to 1969.
So originalism really is a response to the Warren Court. And not just Brown and really not even especially Brown, it’s really more Griswold v. Connecticut, which is this 1965 case. Estelle Griswold ran a Planned Parenthood clinic in Connecticut, and in this case in ’65, the court finds that state laws banning birth control for married couples are unconstitutional. It’s on the back of that case that Rowe comes in 1973. So, originalism is also, how do we undo all these right-to-privacy cases that are securing reproductive rights for women? And a way to undo all those cases is to insist that they are judicial overreach, that the Warren Court is amending from the bench. That these are things that Americans don’t want. They’re not in the Constitution, and the court is just putting them in there. They’re just inventing them. And that’s the logic. That’s how we get to the Dobbs decision in 2022, where the originalist court says all of those decisions from Griswold to Rowe were the courts actually amending the Constitution in a way that’s not allowed.
Norcross: And you point this out, that “while the Constitution has not been amended a lot, it has been changed a lot,” and I’m wondering if you can kind of chart the change in thinking when it comes to judicial review and what it means for how the Constitution is applied to our lives.
Lepore: I think the Constitution is going to change. Like, things change, circumstances change. We’re a completely different country, a completely different people than we were in 1787. And I think of Constitutional ideas as a little bit like a river. You could put a dam there, but the water’s going somewhere. And when amendment doesn’t work by formal Article V mechanisms, which it almost hardly ever does work, the only way to change the Constitution is to go to the Supreme Court and seek change there. And that is not written into the Constitution. It is established very early on in 1803 that the court can decide whether a law passed by Congress is constitutional or not constitutional, which is a mode of Constitutional change that the court then itself takes on.
So the pattern across American history is sort of, in periods where people can amend the Constitution, the court is not very active, like during the Civil War. The 13th,14th and 15th Amendments are about overturning that Dred Scott decision and other decisions. And then, after the Civil War, it became really difficult again for 50, 60 years to amend the Constitution. After the Civil War, the Court was really active again until, in the Progressive Era between 1913 and 1920, progressives amend the Constitution four times in seven years. And then it changes again. Then there’s gonna be another long period where it’s difficult to amend the Constitution. So change is gonna come in one direction or another.
We live in an era right now, because the Equal Rights Amendment that went to the states in 1972 failed ratification and many conservative amendments that have been proposed since then, like the Balanced Budget Amendment or the Defense of Marriage Amendment or Right to Life amendment, all of these fiscal and social conservative amendments have failed as well. We live in an era where the court has an unusual amount of power. If the people had the ability to amend the Constitution, the court wouldn’t have this kind of power.
And you can say, I just want to be clear, people can defend that it is a better arrangement. There are a lot of people who really do not like the idea that the people can amend the Constitution and are terrified of it. Again, I think that’s a defensible position. It’s not mine, but it’s not a crazy position.
Geoff Norcross: You know, it’s kind of strange how difficult it is to amend our Constitution when you consider what happens with other countries, and for that matter what happens with the states because, for example, just this week, there was an election in which Washington voters voted to change their constitution so that they could invest their long-term-care program into the stock market. Texas voters approved a resolution that requires citizenship to vote. I mean, states are messing with their constitutions all the time, so maybe you can talk about the difference.
Lepore: So, if you think about the states, remember I said there are 12,000 amendments to the U.S. Constitution introduced on the floor of Congress, and only 27 have been ratified. In that same period of time, about 12,000 amendments to the state constitutions have been introduced, of which about 8,000 have been ratified. So I guess I think that’s 75% or whatever – but that’s a very high amendment – and that doesn’t even include all the times the states have completely replaced their constitutions. The states have held more than 200 state constitutional conventions, in many cases, to just rewrite the constitution, and that’s very similar to other national constitutions. The amendment rate in the U.S. states is quite similar to the amendment rate across nations.
And there again, there are people who would say, well, the states are really screwed up, and it’s the U.S. Constitution that’s a healthy one, you shouldn’t be amending that often. One of the reasons the state constitutions currently are amended frequently is because in the Progressive Era, like a century ago, most of the states amended their constitutions to be able to amend their constitutions by ballot initiatives and referendums. It didn’t used to be that way. It used to be that the only way to amend the state constitution was by having another convention, which people did, again, all the time. The Texas and Washington state measures that you just mentioned, those are ballot initiatives. People go to vote for those things. And political scientists would point out, those two reforms you were talking about, they’re really like legislation. They’re not really constitutional matters. I think a lot of the state constitutional amendments really are just statutes.
The difference between a law and a constitutional amendment is supposed to be that laws govern people, constitutions govern governments. And that’s why it’s important that the people have the power, because we are the check on a tyrannical government.
And how amendment in the states often works is, it’s people that can’t get something through the legislature going directly to the people, because maybe the legislature doesn’t like it, maybe the legislature is corrupt. Maybe it’s just a Hail Mary pass to throw some initiative to the people. But I’m not sure it’s really the best thing.
There’s a fair amount of political science literature that suggests that, because of the way… Remember how Article V was worded and it was kind of hard to understand what it said? Have people had the experience of going to your polling place and pulling the curtain behind you and looking at the ballot, and there’s like an amendment measure and you read it and you don’t actually understand what “yes” means? It turns out that people only have like a coin flip of a chance of voting their preference on an amendment on a ballot because they’re kind of willfully difficult to understand. So people usually just like, either I don’t know what I believe, or I know what I believe but I don’t know whether “yes” or “no’ is expressing what I believe. So, yes, the state constitutions get amended all the time. I’m not sure that’s excellent but it does allow people to think they are actually the authors of their own constitutions, which is kind of the whole point.
Norcross: When you mentioned the check on a tyrannical government, I don’t know if you caught this, there was a murmur in the room. And you say the separation of powers among the three branches of government is a core principle of the Constitution. How do I put this diplomatically? Did the framers envision a time when the Congress would be this uninterested in checking or balancing the executive branch?
Lepore: Yes, they did because they believed that all men would be tyrants if they could. They had an extraordinarily dark view of human nature. And that is why we have the Constitution that we have. They believed that anyone granted any power or anyone who seizes any power would always try to seize more. And therefore, the powers of a government need to be separated so that they can check one another. And what they devised in our Constitution, which, over the course of American history, has worked extremely well in this particular regard, was not just something like a first draft. They, A) had read ancient philosophy, they relied a lot on Aristotle. They’d read modern political philosophy, they relied a lot on Montesquieu, and they relied on Locke. But they also relied on Isaac Newton, so they believed… I mean, if you think about the sense that we have now that we’re living in an era of just fantastically accelerated change because of artificial intelligence; this is kind of a crummy analogy, and I’m sorry for it, but Newtonian physics was an unbelievably important intellectual revolution. As was Copernicus and Boyle’s Law. And these things were all new in the framers’ lifetimes.
They believed that for the first time humankind had begun to understand that the natural world answers to laws that can be deduced by the exercise of reason, like the law of gravity. And they believe that politics could be deduced to certain laws, natural laws, by the exercise of reason as well. So they had, really, a mechanical sense. When they talked about checks and balances, they meant that mechanically, like a weight and a counterweight. These were people who lived in a material world where they were weighing things all the time. They were mounting horses and figuring out if they were too heavy for their horse. They were thinking in the physical world, and active in the physical world.
We live in such a digital and ethereal world, most of us, it’s hard to reckon with, but when they said that they were being like watchmakers, having these gears be perfectly adjusted to one another, having a weight and a counterweight. So, yes, they did imagine an executive who might try to seize legislative power. That’s why they put a check on that. Among other things, the court could rule that to be unconstitutional, and the executive could be impeached, and the people could vote the executive out, like there’s a bunch of different ways to check the tendency of the executive to overreach his authority. In the same way that there are measures to check the overreaching authority of Congress and the overreaching authority of the Supreme Court.
They were also not just wholly inventing that, because the states had been writing constitutions for 11 years. So, 2026, we celebrate the 250th anniversary of the country because of the Declaration of Independence, but 2026 is also the 250th anniversary of American constitutionalism. Once the royal governors fled, the states had to write their own constitutions. And each of them experimented with something different. You know, Pennsylvania was like, “Executives are so dangerous, we’ve just had a king. Executives are so dangerous.” Pennsylvania didn’t have any governor at all. They just kept experimenting and experimenting and experimenting. So when those guys got together in Philadelphia in 1787, they had a lot of book learning, they had Newtonian physics in their mind, and they had the state constitutions, some of which had been really disastrous and some of which had worked really well.
Norcross: And of course, when they said, “We the people,” they didn’t mean everybody. From the beginning, people were left out, and they tried to set about to change things themselves. Black men held constitutional conventions, indigenous nations held conventions, women held conventions. What did you learn about studying those efforts?
Lepore: One of the things I find so interesting as a historian is, like, it’s not a big secret. Black men held more than 200 conventions between 1829 and the end of the 19th century that were effectively Constitutional conventions. They weren’t allowed to participate in the state conventions, but they met all over the free states and debated states and the U.S. Constitution and sought reforms. Women started meeting in conventions in 1848. The Cherokee Nation was the first Native nation to hold a constitutional convention in 1827. They all published the proceedings of all of these meetings. They weren’t secret. Yeah, they were completely excluded from the political process of the state and federal government, but they were Constitutional thinkers and Constitutional drafters. And yet, nothing that any of these conventions have ever produced by way of a record of their proceedings has ever been cited by the Supreme Court in any of its decisions.
For all its supposed interest in history, the history of people who were not immediately writing and revising the U.S. Constitution and the state constitutions lie beyond their scope of interest or concern in thinking about the nation’s Constitutional history. A big reason why I wrote this book was to insist that, if you rely on the notes taken by Madison at the Constitutional Convention and the notes of the state ratifying conventions to understand the meaning of the Constitution in our world today, you can only ever reproduce the forms of inequality that were written into that Constitution. That if we want to have a better future, we actually have to have a fuller and richer past.
[Applause]
Norcross: You write of the 14th, “With it, the 39th Congress founded the United States anew. No other amendments so wholly recast the original document, and none has had more consequences for American political and constitutional development.” Why is it so important?
Lepore: Well, the 14th Amendment, with the 15th Amendment, are often considered by historians a second founding. The 39th Congress that wrote the 14th Amendment – which is an incredibly long amendment – they were trying to address everything that had gone wrong with the 1787 Constitution all in a go, and they had to do it all in a go and act quickly, because remember, this is 1865. The Congress is seated in December, I think they start session in January. The Civil War doesn’t end until April. But this is the Union Congress. The Confederacy is still fighting against the United States. There are no representatives in this Congress from the Confederate states. So the Union is able to do what abolitionists had been wanting to do, and what other social reformers had been wanting to do. They established birthright citizenship. They established equal protection of the laws. They established due process. They established in Section 3 that federal officeholders who have incited an insurrection against the Constitution are no longer eligible for office, because they don’t want the former Confederate officers to return to Congress. They don’t want Jefferson Davis to run for president, which they think he’s going to do, if he doesn’t get killed in the last months of the war.
The 14th Amendment, if you haven’t read it recently, is really worth rereading, partly because it has been so little-honored for much of American history, and we are on the verge of a crisis with regard to birthright citizenship, where the Trump administration’s Justice Department appears keen to argue that birthright citizenship is in fact not in the 14th Amendment.
Norcross: You know, it’s interesting that we have a couple of amendments that just cancel each other out. The 18th brought about prohibition. The 21st repealed it. What was the idea of just leaving unenforceable language in instead of just taking it out?
Lepore: That actually opens up the other kind of wild thing to me that I hadn’t really known until I was working on this book. When they had the first amendments, when they got ratified, even before they got ratified, even before they sent them to states, Congress had a big debate about what would happen with an amendment. Like, do you find a place in the Constitution where it belongs and put a little carrot, and then write it in? Or, if it negates something that’s already there, do you just strike that out? Do you actually just use whatever suggesting mode in Google Docs? Or do you just add them at the end?
This debate lasted for a long time. And the people who wanted to actually edit the Constitution were like, if we add stuff at the end that contradicts stuff that’s in it, no one will ever know how to read the damn thing. But the people who wanted to add it at the end were like, if we keep editing it, we have to keep printing it, like all the children’s textbooks will be obsolete all the time because they’ll have the old, like how do we do version control? So they decide to add the amendments at the end. Which is actually part of what makes… The states don’t generally do that. It’s part of what makes our original Constitution seem so etched in stone. You know, Mel Brooks’ “History of the World,” when Moses has the three tablets and the 15 commandments? And then it’s like, “Oops.”Norcross: Ten! 10 commandments.
Lepore: We have this idea of our Constitution that it is engraved in stone, partly because of just this completely random decision, that the guys were like,” yeah, let’s just add them at the end,” won the argument. If we were always printing new versions of the Constitution because we fixed it up, I think it would honestly feel different.
There’s a whole weird thing about that though, now, because obviously the 13th Amendment overrides the three-fifths clause, which is the part of the Constitution that says people held as slaves will be counted as three-fifths of a person for the purpose of representation in Congress. And they don’t use the word slave or slavery in the Constitution, but they refer to all “other persons” who are not free. But remember the Tea Party movement was really into the pocket Constitutions and waving them around, and Ted Cruz was always wanting to read the Constitution out loud on the floor of Congress? There was one day when the Tea Party decided to read the Constitution out loud, and they didn’t read the three-fifths clause. They just skipped over it, because it’s been overwritten by the 13th Amendment. Which I think the Republicans would still do, because knowing about the three-fifths clause might seem to violate the 2025 presidential executive orders that say we can’t disparage the founding. True.
Norcross: Well, we have time for one more question here and I’d like to bring it back to how we began all this, which is how difficult it is to amend the Constitution. And we are in a moment where the Constitution may very well need to be amended. So, how easy do you think it should be? Do we need another constitutional convention? Does something need to change in order to make it more of a nimble document?
Lepore: Yeah, I think one thing that’s worth remembering is that, at the moment the Constitution is changing very, very quickly. And it is largely changing by way of the executive, which is not provided for in the Constitution. So I might suggest to people who are hesitant… Some people say to me, “Well, you wouldn’t really want to have a constitutional convention, the way all the waiting of the state houses goes, you’d end up just with a MAGA constitution, and all kinds of rights would be revoked,” and I guess I would just say to that I think we now have a MAGA constitution. So I think fearing change and being unwilling to imagine that the people can be trusted to amend the Constitution is a small part of how we got to the situation in which we are now, in which the only person who really thinks he can amend the Constitution in this country right now is Mr. Trump
Norcross: Jill Lepore.
Lepore: I’m very sorry not to have better news. Thank you so much, thanks so much, Geoff.
Dave Miller: That was historian Jill Lepore talking with OPB’s Geoff Norcross in front of an audience at the 2025 Portland Book Festival from Literary Arts. Lepore’s latest book is called “We the People.”
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