Constitution Breakdown #8: Jill Lepore
99% Invisible Podcast Recap
Published:
Duration: 1 hr 6 min
Guests: Jill Lepore
Summary
This episode delves into the intricacies of the U.S. Constitution's amendment process, featuring insights from historian Jill Lepore. The discussion covers historical and modern perspectives on constitutional amendments, highlighting both successful and failed attempts to change the nation's...
What Happened
Jill Lepore, a historian and Harvard professor, provides an in-depth look at the U.S. Constitution's amendment process, focusing on Article 5, which requires a 2/3 majority in Congress and ratification by 3/4 of the states. The idea of a written constitution with an amendment process was novel when the first state constitutions were adopted in 1776. The Articles of Confederation's requirement for unanimous consent to amend laws proved unworkable, leading to the creation of the current U.S. Constitution.
Lepore discusses the historical significance of amendments, noting that although the Constitution has been amended 27 times, over 12,000 proposals have been submitted. This highlights the political aspirations and frustrations of the American people. The framers viewed the amendment process as a peaceful means to prevent insurrection and revolution, yet there is ongoing debate about its effectiveness today.
The Reconstruction Amendments (13th, 14th, and 15th) passed swiftly after the Civil War, representing a significant shift in the constitutional landscape. The 39th Congress is particularly noted for its role in these amendments, often considered a second constitutional convention. The rapid passage of these amendments contrasts with the current decline in constitutional amendments since 1971.
Jill Lepore addresses the rise of originalism, a judicial philosophy that gained traction in the 1970s and became institutionalized during Reagan's presidency. This approach prioritizes the framers' original intent, often referencing limited sources like the Federalist Papers. Originalism has been criticized for not fully embracing historical methods, yet it has shaped the Supreme Court's increased power as Article 5's effectiveness has waned.
The episode explores the idea of a second constitutional convention, a provision in Article 5 that has never been realized. Lepore notes that while significant issues like slavery were unaddressable through the amendment process in the past, there have been calls to ease the amendment process to adapt to modern challenges. In 2020, scholars from different political backgrounds drafted revised constitutions that included changes to Article 5 for this reason.
Political figures like Senator Birch Bayh played pivotal roles in passing amendments in the 1960s and 70s, such as the 25th and 26th Amendments. Bayh's efforts to abolish the Electoral College reflect ongoing debates about presidential succession and election legitimacy. Despite passing in the House, opposition from various groups, including the NAACP and conservative scholars, led to its failure in the Senate.
Jill Lepore's book 'We the People' is recommended for those interested in constitutional amendments, offering engaging narratives and historical insights into both successful and failed amendment efforts. Lepore's work highlights the erosion of the separation of powers and the changing nature of executive authority in recent decades.
The episode concludes with a look at current movements, such as Democracy 2076, which engage citizens in discussions about future constitutional changes. While state constitutional conventions have not occurred since 1986, Lepore suggests that there remains potential for them to address contemporary issues.
Key Insights
- Article 5 of the U.S. Constitution requires a double supermajority for amendments: 2/3 of Congress and 3/4 of state legislatures or conventions. Despite over 12,000 proposals, only 27 amendments have been ratified, illustrating the challenges of constitutional change.
- The Reconstruction Amendments, passed rapidly after the Civil War, are often viewed as a second constitutional convention. These amendments fundamentally reshaped the nation's legal landscape, focusing on civil rights and citizenship.
- Originalism, a judicial philosophy emphasizing the framers' original intent, rose to prominence in the 1970s and became institutionalized in the 1980s. This approach has influenced the Supreme Court's role, often relying on sources like the Federalist Papers and Madison's notes.
- Senator Birch Bayh was instrumental in passing the 25th and 26th Amendments, aiming to modernize presidential succession and voting rights. His efforts to abolish the Electoral College faced opposition and ultimately failed, reflecting ongoing debates about election legitimacy.