Why America’s veneration of the Constitution may ultimately break it

“Some men look at constitutions with sanctimonious reverence, and deem them like the ark of the covenant, too sacred to be touched,” Thomas Jefferson wrote in an 1816 letter — when the United States turned 40 years old, and the War of Independence was slowly starting to fade from living memory into history. “They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”

Jefferson couldn’t disagree more with the sentiment. Convinced that American democracy would survive only if the government could be repaired and updated, he and the other Founding Fathers made sure the Constitution came with a built-in provision for amending its own contents. Unfortunately, the conditions for pushing through such an amendment — a two-thirds majority from both houses of Congress and a three-fourths majority from state legislatures, as outlined in Article V — have proven exceptionally demanding.

As historian and journalist Jill Lepore explains in her new book, We the People: A History of the US Constitution, neither Democrats nor Republicans today consider Article V an effective way of pursuing their policy goals. Since the days of Franklin Delano Roosevelt and the sweeping social, political, and economic changes brought about by the New Deal, the government has been reshaped through executive action and Supreme Court decisions. These methods, while less exacting, are also woefully undemocratic, allowing lawmakers to act independently from and against the interests of the American public.

Building on questions raised by her previous book, These Truths — which charts U.S. citizens’ enduring faith in, and the ruling elites’ undermining of, the Constitution’s egalitarian ideals — We the People shows how the perilous present state of American democracy stems from the very concerns expressed by Jefferson more than two centuries ago.

I recently spoke with Lepore to discuss why amendments have disappeared from American political life, whether or not the Constitution is fundamentally broken, and what kind of government Donald Trump’s second term in office may leave behind. (The following interview has been edited for length and clarity.)

Big Think: Was there a particular event or realization that led you to write We the People?

Lepore: After I wrote These Truths, I received a lot of emails from readers who were grateful for the book, especially its constitutional history. Constitutional history isn’t part of big histories of the country anymore, which are mostly social and cultural. I found it fascinating that the subject has moved from history departments to law schools, meaning it isn’t widely taught anymore. In response, I started bringing more constitutional history into my teaching.

Big Think: As you discuss in the book, the last real amendment was passed in the 1970s. What change in American politics do we have to blame for that?

Lepore: I argue the whole course of American history is characterized by a pattern of alternation between periods of amendment and periods of judicial activism. There’s a push and pull. 

When it becomes difficult or undesirable to change the Constitution via amendment, politicians rely on the Supreme Court to change the Constitution via rulings. Then people get exasperated, start talking about judicial supremacy, and try to chop the Court off at its knees by seeking traditional amendment instead. And so the cycle repeats.

We are in an amendment drought right now. The Constitution was amended in 1971, lowering the voting age from 21 to 18, and again in 1992. (Though that amendment was sent to the states for ratification all the way back in 1789, so I don’t really count it.)

The most obvious reason for this particular drought is polarization. The double supermajority requirements for constitutional amendments can’t be met in the current political climate, just as it’s currently all but impossible to successfully impeach a president.

Big Think: Can you briefly walk us through the history of informal amendments? Why was Franklin Delano Roosevelt such a pivotal figure in this history?

Lepore: FDR knew all about failed constitutional amendments. He watched his wife, Eleanor Roosevelt, fight for the Child Labor Amendment in the 1920s and 1930s. He could have constitutionalized the New Deal by seeking amendments, but it would have taken a long time. There was so much money in politics — the so-called Millionaires League — and much of it was spent lobbying against his attempt to amend the Constitution. So, he decided to try to influence the Court instead. For generations, liberals gave up on amendments and sought to change the Constitution through judicial interpretation.

Eventually, conservatives decided to do the same, and they have been extraordinarily successful. You now hear progressives talk about constitutional amendment in a way they hadn’t for a long time, because they’ll never be able to get what they want from the current Court.

Big Think: You mentioned how some of the Founders complained that even in their time, the Constitution was being glorified and mythologized.

How have public attitudes about the Constitution changed? Is what we are seeing today similar to Jefferson’s time, or are we dealing with something different?

Lepore: It’s entirely different, and it has changed a great deal over time. Believe it or not, the Constitution wasn’t even taught in schools until relatively recently. During the nation’s founding, there wasn’t much expectation that it would last. The modern cult of constitutional veneration doesn’t start until the First World War, with the emergence of constitutional conservatism associated with national security, loyalty oaths, and the requirement of constitutional education for a new class of immigrants, so most of what you’re describing is only about a century old.

As Madison pointed out, a problem with constitutions is that they’re more likely to be venerated the older they get, because the moment of their creation seems almost biblically distant.

I remember being at a dinner party in Toronto in the 90s or early 2000s, and this charming but very drunken man next to me was laughing at how funny it was that Americans revered the Founders. He had been part of a Canadian constitutional convention in 1982 that led to a new charter. He said, “No one worships us because we’re obviously such flawed mortals. If you personally knew the Founders, you wouldn’t worship them.” 

This was the danger Madison considered — that mystic memory would falsely elevate the Constitution. Not that we can’t rationally admire many elements of our constitutional order. There’s nothing wrong with admiration. But veneration was something they, as revolutionaries, were afraid of.

Big Think: You’ve noted how people like to think that they live in extraordinary times and bear witness to unprecedented events when, in truth, few things in history are wholly unprecedented. 

With that in mind, when and where do you think the present crisis originally began?

Lepore: I would look to the 1970s, partly because widening polarization begins after 1968 and picks up in 1972. If you look at graphs of polarization, it almost looks like a fever. You’re watching the temperature of the body politic rise and rise. It feels like the body is above 106°F, and organ failure is imminent. Though it is not necessarily the driving force, it is a key indicator of massive political dysfunction.

Big Think: Some left-wing critics argue we shouldn’t protect the Constitution. According to them, Trump’s rise to power and his use of executive power are signs that the document is fundamentally broken, and we need something new. 

After writing this book, where do you stand? Is the Constitution itself problematic, or is the main problem the difficulty of the amendment process?

Lepore: It’s definitely a question we should be having an open and lively debate about. There is a long, strong strand of anti-constitutionalism in American history. People have said the Constitution isn’t working, and amending it is too tame a response to the profound problems baked into our laws.

I think the worst moments in American history have been moments when it felt unsafe to say such things. That goes for today, too. For many people, it feels unsafe to be a deep critic of the Constitution.

It should be free, as William Lloyd Garrison was, to burn the Constitution, to call it an “agreement with hell.” That is an American political tradition, and it is just as vital and longstanding, if not more so, than the tradition of veneration we just talked about.

One of my favorite books about the Constitution, by historian Michael Kammen, argues the paradox of Americans’ relationship to the Constitution is that people appear to be so wholly wedded to a document that so few have ever read for themselves. This culture of veneration coexists with a significant unfamiliarity with the document and its implications. 

Big Think: You write that, historically, a lot of amendments were passed during or after moments of great national upheaval, such as the Civil War and the two World Wars. 

Could the current instability in the U.S. lead to a similar outcome?

Lepore: Honestly, I can’t see that from here. The process of amending the Constitution requires either a functioning Congress — which we do not have — or citizens’ ability to deliberate peacefully in a convention through an institution perceived as legitimate. People often say to me, “You seem to think the Constitution could use a fair bit of amending. Don’t you think we should have a second constitutional convention?” In theory, I think we should. If we believe in constitutionalism, we have to be willing to revise this document. 

In the current political climate, Americans can’t even get through an open mic school board or city council meeting without threats of political violence. Our ability to meet peaceably in citizen assemblies is at a real low. I could picture amending the Constitution through various means, including a convention, after some years of rebuilding the basic infrastructure of civil society and democratic deliberation. But again, I can’t see that happening right away. 

One thing about amendment is that it’s a mechanism to prevent insurrection. The idea is that if you have a written constitution, you must have a way to change it peacefully. Otherwise, the only alternative is rebelling against the government. At this point, continued insurrection is more likely than a peaceful convention or successful amendment.