Overview of Constitution Breakdown #8: Jill Lepore
This 99% Invisible episode (hosts Roman Mars & Elizabeth Jo) features historian Jill Lepore discussing Article V of the U.S. Constitution — the formal amendment clause — and the broader history and politics of constitutional change. Lepore (author of These Truths and We the People: A History of the U.S. Constitution) explains formal versus informal amendment, why the framers insisted the document be amendable, major successes (Bill of Rights, Reconstruction amendments), thousands of failed amendment attempts, why the Article V process has become effectively inert since the 1970s, and where hope for future amendment might come from.
Key takeaways
- Article V was intentionally included so the Constitution could be changed peacefully; amendment is a founding principle ("philosophy of amendment").
- “Amendment” is broader than Article V formal changes — it includes informal changes by practice and de facto changes by judicial interpretation.
- The framers created a high bar (two-thirds of each house + ratification by three-quarters of states) as a compromise: amendable but stable; that bar turns out to be very difficult in practice.
- Historically, amendments occur in bursts (Bill of Rights, Reconstruction, Progressive era); since 1971 the formal route has been largely moribund.
- Two major reasons Article V is functionally frozen: rising political polarization (partisan supermajorities are rare) and the rise of originalism as a judicial philosophy that pulls constitutional change into the courts.
- Jill Lepore built a public searchable archive of roughly 12,000 proposed amendments — the failed proposals are a meaningful record of popular political aspirations.
What counts as an "amendment"?
- Formal amendment (Article V): proposed by 2/3 of both congressional houses or by a convention called by 2/3 of state legislatures, and ratified by 3/4 of state legislatures or ratifying conventions.
- Informal amendment: constitutional change through consistent political practice or evolving norms.
- De facto amendments via judicial decisions: Supreme Court interpretations often reshape constitutional meaning (examples discussed: Griswold → right to privacy; debates over presidential immunity; Roe → Dobbs).
Why Article V exists (historical context)
- State constitutions of the 1770s established three expectations: (1) drafted by a convention, (2) ratified by the people, (3) amendable — if sovereignty rests with the people, they must be able to change fundamental law.
- Framers wanted a peaceful method of constitutional change to avoid repeated violent revolution; amendment was itself a kind of “peaceful revolution.”
- Article V is a compromise: it creates a double-supermajority safeguard intended to balance stability and adaptability.
How early amendment practice worked
- Madison gathered ~200 proposed amendments from state ratifying conventions and distilled them into 12 proposals; 10 became the Bill of Rights.
- Debate: supplementing the text (append amendments) vs. re-editing the document (tracking changes). The “supplementalists” won — amendments were appended, leaving the original text intact (e.g., the three-fifths clause remains in the text as historical record).
- Appending contributes to the Constitution’s “scripture-like” aura because the original text is preserved rather than visibly altered.
Successes and failures: patterns and examples
- Major successful amendment waves:
- Bill of Rights (1791)
- Reconstruction amendments (13th, 14th, 15th; 1865–1870) — a “second founding,” enabled by Union victory and the political condition of the defeated South
- Progressive-era reforms (early 20th century)
- 1961–1971 cluster (four amendments)
- Failures and near-misses:
- Equal Rights Amendment (passed Congress 1972, failed in the states) — a sign Article V was failing liberals as well as conservatives.
- Electoral College abolition (Birch Bayh): passed House; failed due to political tampering, civil-rights group concerns, and tit-for-tat Senate politics. Bayh shepherded multiple amendments (25th, 26th) but the electoral reform effort ended in frustration.
- Corwin Amendment (pre-Civil War) exemplifies the use of Article V to try to entrench slavery (would have made slavery unamendable) — tensions over entrenchment vs. openness to change recur across history.
- Lepore’s database: ~12,000 introduced amendments; only 27 ratified — the failures reveal what Americans wanted but could not achieve.
Why Article V became effectively “dead” after 1971
- Polarization and party politics: supermajority thresholds were set before parties; today, getting 2/3 of both chambers and 3/4 of states is nearly impossible across many national questions.
- Rise of modern originalism (Robert Bork, 1971 onward): conservatives weaponized originalist theory to shift constitutional change from the amendment process into judicial reinterpretation/restoration. Originalism became institutionalized (e.g., Reagan-era judicial appointments), offering a path to change via the courts.
- Result: both sides increasingly look to the judiciary rather than Article V; the Court’s centrality has expanded and public perception of who “owns” the Constitution (the Court vs. the people) has shifted.
Critique of originalism (Lepore’s perspective)
- Lepore argues originalism is not genuine history: it selects narrow legal sources (Federalist Papers, Madison’s notes) and ignores wider historical context and popular politics.
- Originalism can be used to justify rollback of later social progress under the guise of restoring original meaning (example: Dobbs overturning Roe).
- Genealogy: Lepore traces a lineage from pre–Brown v. Board originalist arguments through figures like David J. Mays to the later professionalization of originalism.
Where change might come from (reasons for guarded optimism)
- Constitutional change often takes decades; successful movements typically organize long-term (historical median ~50 years from proposal to ratification).
- Civic initiatives: Democratically oriented civic projects and assemblies (example: Democracy 2076) are trying to stimulate public conversation and imagination about constitutional reform.
- State-level energy: recurring state ballot questions about constitutional conventions and state constitutional reform could become pressure points for national conversations.
- Legitimacy pressure: scholars argue a constitution that is effectively unamendable risks losing legitimacy; destabilizing political circumstances (polarization, executive power shifts, threats to norms) create renewed incentives for formal repair.
Notable quotes and insights
- “The Constitution is designed, it is truly meant to be amended.” — Lepore’s central framing.
- “Philosophy of amendment” — the founding idea that popular sovereignty requires a peaceful amendment mechanism.
- On judicial change: when courts invent doctrines (e.g., presidential immunity, rights not explicit in text), Lepore treats that as constitutional change even if not via Article V.
- “The Constitution is actually our Constitution. It doesn't belong to the court.” — emphasis on popular ownership and democratic responsibility.
Practical next steps & resources
- Read Jill Lepore’s We the People: A History of the U.S. Constitution (she also narrates the audiobook).
- Explore Lepore’s public digital archive of proposed constitutional amendments (the searchable dataset of thousands of proposed amendments) for research or classroom use.
- Consider civic engagement: participate in local/state constitutional conversations, follow organizations like Democracy 2076, and support civic education about amendment routes and timelines.
- Use the episode as a primer to debate the balance between judicial interpretation and formal amendment, and to consider where democratic pressure could revive Article V’s usefulness.
Final thought
Lepore reframes amendment not as an occasional legal act but as a core democratic technology: the peaceful means by which a people legitimately repairs and redefines its fundamental rules. The current paralysis of Article V is a historical condition, not a permanent sacred fact — and understanding the long record of both successes and failures is essential to imagining how change might return.