Harvard’s Jill Lepore is a triple threat: lauded historian, prominent legal scholar and New Yorker journalist. She approaches the American experiment from myriad angles, drawing on protagonists such as Jane Franklin, Ben Franklin’s precocious sister, and the Simulmatics Corp., whose pioneering computer algorithms still shape our reality. Her 15th book, “We the People,” a history of the U.S. Constitution, may be her best yet, a capacious work that lands at the right moment, like a life buoy, as our ship of state takes on water. She’s not here to rearrange deck chairs on the Titanic; she’s here to convey — in vigorous, crystal-clear sentences — what we’re losing, and why. Mayday call or a map forward?
“Of the nearly two hundred written constitutions, the Constitution of the United States — the most influential constitution in the world — is also among the oldest, a relic,” Lepore asserts in her opening. “But the U.S. Constitution is neither bone nor stone. It is an explosion of ideas. Parchment decays and ink fades, but ideas endure; they also change.” From this bold declaration she unspools her thesis: The Constitution was not freeze-dried at the beginning but instead has bloomed and grown to meet the republic’s needs, as the framers foresaw. Article V, which provided for amendment, underscores their intentions.
She re-creates the spectacle of the 1787 convention in Philadelphia, the ceaseless harangues between North and South, bringing to life these visionaries — white, affluent men, many drama queens — as they laid out an unprecedented polity. Article V emerged from the “three most fateful compromises of the convention. It protected the slave trade. It granted both small states and slave states disproportionate power over the amendment process. And it made the small states’ disproportionate power, in the form of unequal suffrage in the Senate, untenable.” Lepore follows chronology, flavoring her narrative with graphs, digressions, even a litany of failed amendments. The framers wanted to make it neither too easy nor too difficult to tweak the Constitution: Amendments must be proposed by a two-thirds majority of Congress and then ratified by three-fourths of the states. There are 27 amendments, which have come in waves after the initial Bill of Rights defined and enumerated individual liberties. “Article V is a sleeping giant,” Lepore notes. “It sleeps until it wakes. War is, generally, what wakes it up. And then it roars.” (She supports her claim with data.) During amendment droughts, Congress and the executive branch have pushed agendas through “soft Constitutionalism,” crafting laws that fell below the high bar of ratification, a “pattern of alternation between constitutional change by way of amendment and constitutional change by way of judicial interpretation.”
With “We the People,” Lepore has composed a companion piece to “These Truths,” her 2018 dash across U.S. history, but her latest work is the stronger book by an order of magnitude. Where “These Truths” was occasionally glib and attenuated (13 pages on the Civil War?), “We the People” sticks to a throughline that nevertheless opens her scope. Several chapters recount anecdotes familiar from eighth-grade civics. James Madison jotted copious notes during the Philadelphia convention, now considered proof of the framers’ design. In Marbury vs. Madison (1803), the Supreme Court anointed itself final arbiter of Constitutional disputes. The court’s incendiary Dred Scott decision (1857) prompted Frederick Douglass’ bitter response: “Slavery lives in this country not because of any paper Constitution, but in the moral blindness of the American people, who persuade themselves that they are safe, though the rights of others may be struck down.”
The Civil War proved the Union’s most daunting challenge. Amid the war’s devastating wake, Francis Lieber, a German American jurist, proposed a philosophy of amendments and humanitarian principles, the Lieber Codes, templates for the Hague and Geneva Conventions. “This, in 1865, was particularly freighted language,” Lepore observes. “Death, at the time, was everywhere. Death lay on battlefields and in graveyards, rotting and decayed; on church altars and in funeral parlors, embalmed and pallid and waxen as candles, dire illustrations of the consequences of constitutional failure.”
Lieber is just one member of the book’s eclectic, colorful cast. The ex-Confederate Jefferson Davis managed to avoid trial for treason; a sympathetic prosecution deliberately sabotaged its own case. And from Susan B. Anthony to Victoria Woodhull, Lepore depicts the suffragettes who marched for decades, often in tension with Black feminists, before they won the franchise.
Amendments were increasingly tied to technological innovations and quirky moral crusades, such as Prohibition. Lepore’s astute in her discussion of maverick Columbia professor Charles Austin Beard, whose “An Economic Interpretation of the Constitution,” published in 1913, sparked controversy. “He was investigating whether the framers were the sorts of men whose accumulation of wealth informed — even corrupted — their view of government. He argued that in devising the Constitution, and, in particular, to implementing its aristocratic features, the framers were protecting their own property interests,” she writes. “One later student of constitutional history compared Beard’s influence to Darwin or Freud.”
No amendments were ratified between the 15th (1870) and 16th (1913), although there was chatter of recasting the preamble in explicitly Christian terms. Lepore tracks the obstacles within “the frantic, paranoid bunker mentality of the Cold War,” showcasing half-forgotten figures — Native activist Vine Deloria, Sen. Birch Bayh, Congresswoman Patsy Takemoto Mink — all committed to expanding rights of women and minorities, stirring backlash. The author reprises a star character from “These Truths,” the charismatic anti-feminist Phyllis Schlafly, who led the charge against the Equal Rights Amendment in the 1970s and ’80s: “On television, she was unbeatable. She was smart and relentlessly strategic. In her newsletter, and to conservative audiences, she denounced her opponents with precision and delight. To television audiences, she sold happiness and contentment like so much laundry detergent.”
The sun may have set on Article V, Lepore suggests, with the rise of monumental Supreme Court decisions (think Brown vs. Board of Education) and partisan sorting into red and blue states. Compromise and consensus — the animating creeds of our commonweal — have ebbed away. The Constitution has not been meaningfully amended since 1971. Her target is originalism, a pet cause of the right, championed by the pugilistic Robert Bork and former Justice Antonin Scalia. She argues that the framers’ intentions, insofar as we can pin them down, can’t account for where we are now: “God” and “slavery” and “woman” are not mentioned in the original document.
For Lepore, the Constitution is a blueprint of a cathedral, one that has morphed since its inception, rather like New York’s unfinished St. John the Divine with its mélange of architectural styles. It evolves as we evolve. Next year the nation will celebrate its 250th birthday; we must look back to look forward. Lepore senses peril but also a whiff of democratic revival. Asymmetries lie at the foundation of our government; as this gifted scholar reminds us, it’s our duty to tend to them.