Constitution Breakdown #8: Jill Lepore

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27:09You write about the framers of the Constitution being, you know, acutely aware of what it would mean if the Constitution wasn't amendable. Because, you know, there wasn't a lot of precedent of longstanding constitutions. And when they're not amendable, I don't know, maybe the one before this was longest lasting was 20 years, you know, like outside, you know, like, you know. And so how did they treat the desirability of not just the necessity, but the desirability of amending the Constitution? So they talked about Parliament's behavior during the years before the American Revolution as having been unconstitutional.

27:45So England does not have a written constitution, but that doesn't bar the Sons of Liberty and the resistance from saying all the time, you know, when they say, you know, we oppose the Sugar Act, the Stamp Act, the Townsend Act, the Tea Act, the Corusive Act. They said because they're unconstitutional, because of no taxation without representation. So they had no remedy for being faced with tyrannical, unconstitutional acts on the part of their government except revolution. And the Revolutionary War is so distant in time and we have so little sense of the kind of suffering that 18th century warfare meant.

28:29But there are types of misery that are just unfathomable to us in terms of the daily suffering of people in wartime. Modern war is more lethal, for sure. The machinery of modern war is more lethal. but people are living in such a general state of deprivation with essentially zero medical care and hardly any food to begin with um these are people who by the time you get to 1787 you know they're only a few years from the peace of paris they're not that far from yorktown everybody has lost someone seen the tremendous amount of suffering that that revolutionary war led to the idea that the only way you could successfully deal with a government that was acting unconstitutionally would be by bloody violent revolution was horror a terror to them and they were very self-conscious and indeed quite self-congratulatory about the method of what they would have said a peaceful revolution amendment was the great the genius idea of the american constitution in many ways they they you know the framers themselves said this all the time because they had invented a method by which the people could peacefully change fundamental elements of their government.

29:50Whereas in all previous time, the only method was violence and insurrection. And so they said, you know, we are preventing an insurrectionary politics from befalling our republic by introducing this peaceful provision. So that's another reason, like, I don't know, that I really can't. I'm such an ameliorist. I'm just not a revolutionary. I'm a reformer. I like reform. Like the idea that like you could just make things better by saying, hey, bunch of us got together. We disagree about a lot of shit, but we agree about this little thing. Can we do that, please? Like that, I like that a lot. That's kind of how I roll.

30:33Well, but even the amendment process itself, I mean, maybe you could talk about these two polar opposites in your book. One is like, let's have an amendment. An example would be like right after Brown versus Board in 1954. Let's have an amendment to make it easier to change the Constitution. And at the other end of the scale, you have the Corwin Amendment right before the Civil War. Let's make sure that we keep slavery and we make sure that that can never, ever be amended ever again. I think the technical term is entrenchment or something like that. And these happen in our history where we have this anxiety.

31:04Should we make it a lot easier or should we make impossible. I wonder what your thoughts are on that. Yeah. And yet neither, neither of those efforts has ever succeeded. If you go into the amendments project is this database that that's my students and I put together. And if you could search by topic and the topic amend, we'll pull up results that are amendments that try to make that revise article five. It's like a meta-amendment. Or more difficult to amend. I would say, you know, it was maybe 2020. The National Constitution Center had three different teams of constitutional scholars write a kind of revised constitution.

31:57They had conservatives, progressives, and libertarians. And they were very interesting things that they came up with, but they all changed Article 5. And they all made it easier to amend the Constitution, which was interesting that that was a thing that they recognized as a shared concern. But yeah, because Article 5 doesn't work anymore, you can't revise Article 5. How soon into the Constitution existing did people realize that Article 5 was kind of a non-starter when it came to changing the Constitution in a meaningful way? Yeah. You know, I think – so the Bill of Rights, okay, people were happy about that.

32:42Right. Then there's the 11th and 12th Amendment get in. They're just kind of like just sort of obvious structural problems that then they get addressed. And then people start trying to do big things. I think the 12th Amendment is 1803. 1804 is the first time people in New England start really pressing essentially to abolish the Electoral College. Yeah. Because the electoral college is so unfair to New England. They're not that, I mean, because the slave states in the South have disproportionate power because of the three fifths clause. And they're not going to overturn the three fifths clause, but they start trying to like tinker with the electoral college as a way to undermine the three fifths clause.

33:28Not out of an abolitionist sentiment, but out of a like, we want more power sentiment. And that it's like very quickly clear that's not going to work. but that then leads to what is it 1814 there's a hartford a sort of like almost a constitutional convention it's just only like new england and new england gets together in hartford they're like man this constitution is really not working for us and we're not going to get any amendments through because this article five thing's really not going to work what are we going to do um and they start threatening to secede from the union wow so you already have that and then And the next kind of big crisis is in the 1830s when South Carolina starts threatening secession over the tariff.

34:12There's a whole kind of by the 1830s. Is it really that there's concern that the Article 5 doesn't work? It's more like it's become clear by the 1830s that there are different understandings of what the Constitution even is. So that's when John C. Calhoun says, you know, if we don't like a law passed by Congress, we don't have to obey it. Right. We can just nullify it. Because we're not really, the federal government isn't sovereign. Only the states are sovereign. And like, they're just like light recommendations that Congress will offer us. So like, it's just a league. We are a confederacy. We're not a union.

35:02Right. Like you already have that. So. I'm just musing now as like over like when does. But like as a historian, it's clear that why Article five is kind of a dead letter before the Civil War is the only thing that really matters that people really care about constitutionally is slavery. And that cannot be addressed by Article 5. Not because the slave trade thing that is prohibited from Article 5 revision until 1808, but because there's just no way for three quarters of the states to agree on slavery. Like they barely agreed on it in 1787. So it's like, like you can't, you can't get the engine to turn over because the key, like it's all about slavery.

35:48Yeah, yeah, yeah. But what's remarkable then, of course, are the Reconstruction Amendments. They happen all at once, seemingly, historically, right? They happen very quickly. Yeah. And that seems like a real turning point, right? And maybe you could help us understand, like, why do moments like that happen in the Article 5 story? That's a big success. Yeah. So the 13th Amendment, which is 1865, the 14th Amendment is 1868, and the 15th is 1870. Those are the dates of their ratification. Um, so what the South said at the time and what many Southerners, certainly Southern segregationists said for decades, is that in fact, those are unconstitutional constitutional amendments because the South was not in Congress.

36:38Um, so the 39th Congress that comes up with the 14th Amendment, it's only the Union states that are there, or then there are elected delegates, representatives from the South. But since anyone who served in the Confederate military is disqualified from holding office, like it's the South would say those were carpetbaggers. And then in order to get back into the Union and recognized as a state in the Union, the former Confederate states are required to ratify the 14th Amendment. so they would say like yeah well we didn't vote for it in congress and we ratified it like at the point of a gun so like i should have led with yes the civil war and reconstitution the 13 14th amendments are amazing and they reconstitute the country and they are generally thought of by historians as essentially a second constitutional convention especially the 39th congress is essentially a constitutional convention like that's all they're doing is trying to figure what should be in the 14th Amendment, which is extremely long and is the most important amendment to the Constitution.

37:52So it is a whole new beginning, a second founding, as Eric Foner calls it. That said, and so it's a miracle, but it's only accomplished because 750 ,000 people have just died in a civil war and the defeated South is being treated like a conquered country and disenfranchised. It makes passing amendments easier. It makes passing amendments easier. Yeah. But for you also, there's the real turning point, I guess, historically in your story is 1971. Effectively, you say Article 5 is dead and arrival in 1971. And in fact, if you go back to law review articles going stretching the past 50 years or so, you find titles like the frozen Article 5, the comatose Article 5, you know, all of these crazy metaphors.

38:44So what was what's wrong? What happened in 1971? Yeah, so the amendments we do have really have come in bursts. Like the Bill of Rights was all at once. The Reconstruction Amendment was essentially all at once. The Progressive Amendments, there were four amendments between 1913 and 1920. And then there's four amendments between 1961 and 1971. And then since then, it's like a flat line. There's one blip, which is in 1992. the 27th amendment is ratified but it was introduced in 1789 it was kind of lost in the paperwork so i don't think it's possible um so why have we not amended the u.s constitution since 1971 then is a that's it's one of the longer dry spells it's not the longest um so like any social scientist would immediately raise her hand and say well that's because of polarization.

39:40Political polarization in the United States has been rising since 1968. And there's no sign of it, really. I mean, there's like some variability. But the double supermajority requirements, two-thirds and three-quarters, that was devised before there were even political parties. So that's one reason it's become much harder than was anticipated. But now there are political parties and they're utterly polarized. So, I mean, this is a big news item and a hot take on my part, but Congress can do nothing. Everybody knows Congress is useless, right? Congress can accomplish absolutely zero. So they're really not going to get two thirds of both houses to agree to anything, like anything, because of polarization.

40:27So you would say that. But also what happens in 1971 is that what comes to be called originalism is born in its modern form in the famous Law Review article by Robert Bork. He is opposed to judicial activism, which when people say judicial activism, they usually mean amending from the bench. And so he's opposed to Griswold v. Connecticut from 1965. And then he's going to be opposed to Roe v. Wade. Like he's opposed to the idea that there can be a right to privacy can be found in the Bill of Rights that can guarantee reproductive rights. So he says, you know, what we need to do is go back to the original intention of the framers of the Constitution.

41:12They didn't mean for women to be able to get birth control. So therefore, it's not in the Constitution. And this theory of jurisprudence gets elaborated over the course of the 1970s and then institutionalized in the 1980s when Reagan is president. and makes originalism, which at that point is called originalism, the official policy of the Reagan Justice Department. And anyone being put forward to the federal bench has to be an originalist, like has to pass a litmus test, which they say this. And partly that's because the reason originalism rises in this era is that it's not just that liberals can't amend the Constitution, like the Equal Rights Amendment, which is passed by Congress in 1972, is not ratified.

41:56So liberals are like, why are we going to bother trying to use Article 5? It's not working for us. We'll just go to the courts. But social and fiscal conservatives are also finding it difficult, impossible to change the Constitution by Article 5 amendment. They want to pass a right to life amendment, especially after a flurry of these right to life amendments. They can't get that through Congress. And they want to pass a balanced budget amendment, which they can get through the Senate, but not through the House. So the fiscal conservatives. So they come up with this idea, which is, well, we want to change the Constitution, but we we've been saying for years we don't believe in judicial activism.

42:38And we pose to the Warren court, everything the Warren court's done really since Brown, like all the really the decisions of the 1960s, the civil rights decisions of the 1960s and the criminal defendants rights. so we want to gain power and we want to gain seats on the federal bench but then we don't want to do what they did because we've been saying that's not allowed and we can't be that hypocritical so they're like okay well what we're going to do actually from the bench is return to the original meaning original understanding of the constitution and it's that logic that gets you to That's how ultimately they overturn Roe v.

43:18Wade with the Dobbs decision in 2022 by saying, you know, the right to privacy is not in the Constitution. We can't amend from the bench. That's wrong. But what we'll do is we'll return our interpretation to the original meaning of the Constitution. So it's a way of exercising a tremendous amount of judicial power in the guise of not constitutional change, but constitutional restoration. And modesty, actually, right? I mean, the premise is, you know, we're not doing very much, although it can be quite radical. You know, one of the—you've talked about Dobbs, but just to be clear, originalism is everywhere.

43:57You know, so for instance, there's a case from 2012 where the Supreme Court in a Scalia opinion asked the question when the police who didn't exist in the 18th century used GPS, which clearly didn't exist in the 18th century. Is that a search under the Fourth Amendment? And Scalia says, well, we need to figure out whether that would have been a search in the 18th century. You know, and it's an absurd premise, right? The idea that you'd ask that very question. Yeah. Yeah. It's really kooky. And like the more you look at it, just like flat, like like look at it, look at it. You're like, it's just such rank nonsense.

44:35But it also isn't original. It's not how anyone interpreted the Constitution when the Constitution was first put into effect. So it's it's odd, but it is in tension with, again, what I call the philosophy of amendment. If the point of the Constitution is a point of the Constitution is going to provide stability and transparency and accountability, but it can also be changed through this peaceful means. The idea that the obligation of the Supreme Court is to keep turning back the clock, keep undoing change is seems to me to be to contradict the original Constitution. So I have to ask you, as talking to a Harvard history professor, when you read the history done by the originalists on the Supreme Court, you know, how do you grade them?

45:25I mean, I think I try to say like, think about originalism. Like I, I, I think very smart people are originalists and they're very smart, very principled people. And I respect them. And I, I, I take for granted the good faith with which they undertake their work. I I'm unpersuaded by it as a means of jurisprudence. I am entirely certain it is not original. And I would also state with some authority that neither is it history. It really has very little to do with history because the methods that judges use when they write originalist opinions are the methods of the law. It's not like, oh, what can be known about this in the world?

46:10It's like what the sources that originals will use to determine the original meaning of the constitution or its intention or whatever you know is the constitution itself the text the records that ratify and convention james madison's notes on the constitutional convention and the federalist papers and like maybe a dictionary but from the point of view of of a historian like you you couldn't you would never artificially bound your source material if i if i were interested if i had historical question about, I wanted to understand, you know, the Biden years as a historian. Like, and I said, well, I'm going to actually look at the White House visitors logs and the text of Biden's press conferences.

46:54And then Jill Biden wrote a diary. And that's all I'm going to look at. Like, you learn a lot about the Biden White House with those three sources, but it would be just bizarro world like that's you know that's a d like like like i like if you if you want to understand the biden white house or the biden presidency there's just that's just not how you would go about it and and and maybe that's unfair and that like the sources that originals use are the very definitive sources about you know what the what the people who are in philadelphia in 1787 may have thought but but since the whole premise of the constitution was that it it it is the spirit of the people um you surely like when i try to tell the story of philadelphia 1787 you're interested in what they would have called the time the people out of doors all the people who are basically you know knocking on the windows and banging on the doors with their ideas about what should be in the constitution um there's just like a a whole big world out there so that's why i would say, like, I can respect it, but be unpersuaded by it as a way of interpreting the Constitution.

48:03But I will never concede that it is anything to do with how history works as a form of humanistic inquiry. There's a thing about originalism that it's a thread in your book that you can, it's this creeping threat that grows. It's not just starting in the 70s. Like, there's this sort of, I sort of, the big bang of it to me is the Dolly Madison publishing the Madison Papers or something. All of a sudden you have to like pay attention to what they were thinking and not really think about it being an amendable living document, but like, oh, we're going back. And that's 50 years after the fact. Yeah, yeah.

48:38Yeah, I'm interested in that as the creeping force of originalism under different names as it sort of goes through American history. Yeah, there are some moments that really blew my mind in trying to trace that. Because in a way, the book is a history of originalism. It's a history of amendments, but it's also a genealogy of originalist thought. There's a moment in the oral arguments that Brown v. Board in 1953 or 54, it was argued twice, where this guy arguing for keeping schools segregated quotes at length Tani's decision in Dred Scott about how the framers really, we need to always be deferring to the original intent of the framers and they could never possibly imagine that blacks could be citizens.

49:22and you're like I mean it is a century after Dred Scott and there was a war over that one I mean it's like know your audience it's surprising because Dred Scott we could call it an originalist opinion that's what the research that Chief Justice Roger Taney offers is to prove that the framers would never have intended for blacks to be citizens based on his reading of history. And that's the originalist argument of Brown v. Boynton. It would be clear, like, modern originalists are not, like, defending, you know, the segregation. It's not the project of originalism. But that is a... is an originalist, like, oh, the framers of the 14th Amendment never intended, they would never have imagined that black and white children would go to school together.

50:18That's not what they were doing in the 14th Amendment. And there's that, you know, when Chief Justice Earl Warren issues his opinion in Brown v. Board, he says the history is inconclusive, which is his way of saying, like, and the history is murky. But his thing is like just a way to say, like, the history doesn't matter. If we were to constantly defer to the history and tradition of this country, we as a court could only ever reinstantiate racial divisions. We could never free the people from them. And so he just like, let's start again. And that's, there's this guy I've never seen him really written about by legal scholars, but his name is David J.

51:03Mays, who was a Virginia lawyer and quite talented historian. He won the Pulitzer Prize in 1953 for a biography of Edmund Pendleton, who was an 18th century Virginian. Mays actually does the historical research for the segregation side of the argument in Brown v. Board of Education. and he's really pissed off when Oral Warren says the history is inconclusive because Mays is like no it's not I did the history the history says the framers of the 14th amendment did not intend for black and white children to go to school together they did not intend to be banning segregated schools and so he dedicated he's the architect of what is called massive resistance in the South, which is just refusing to enact desegregation.

51:53In addition to being the architect of massive resistance, he starts writing about what he describes as the question of intent and insisting that the only way to understand the Constitution is to defer to the original intent of the framers of any constitutional provision. And he testifies before Congress on this point. And he really elaborates these ideas that get picked up in the late 60s by Robert Bork. So he is kind of a missing link between the Brown case and what becomes the Borkian argument in 1971. And again, like not to say originalism is, you know, a rejection of the Brown decision. It is very frequently in conflict with the reasoning behind the Brown decision, right, Right.

52:40Which was history doesn't matter. We need to do the right thing. Right. But this maze guy, one of the reasons he's so interesting and I wish that people would spend a little more time being attention to him is he left this elaborate diary that any other person would probably either have destroyed or their descendants would have destroyed. Right. But he was like a board member of the Virginia Museum of History. He left his diary to the museum. Like his diary begins when he's a young person with, he goes to a lynching in the 19 teens and he writes about how exciting it was. Then he goes to, he takes a train to DC specifically so he can see Birth of a Nation.

53:22Like he is that guy. And then you see him in the fifties, like arguing for segregation. And then he writes the intellectual justification for originalism in the sixties. And it's kind of all spelled out in the diary, which has been printed because just really recently, within the last 10 years, someone, a great scholar edited and printed, had printed the diary. And it's, you know, it's the autobiography of segregation. Wow. You know, part of this is underscores the extreme importance today of the Supreme Court, right? Because if Article 5 is effectively dead, then everybody turns to the court.

54:04But I think the consequence of your story is that we have this aggrandizement of the Supreme Court. Like that's the only place we turn to. in the modern court has kind of almost become like this monarchical power, right? Many of our amendments were responses to Supreme Court cases, but there's no real check, of course, on the court, effective check on the court today. Yeah. And, and of course, in our era, it's liberals who made the Supreme Court that monarchical power, right? So sadly, there's not a lot of intellectual consistency among political actors in this story, right? Like when the court is conservative, as it was in the progressive era, progressives are all about amendment and attacking the court and bemoaning judicial supremacy or labeling it that and bemoaning it.

54:54And then for the middle decades of the 20th century, when the court is liberal, conservatives are really mad about judicial activism and judicial supremacy. But then once conservatives get control of the court again, no, then they're pretty happy with the court having all this power. And then now liberals are upset with the court having the power. Like, it's important to just note that, like, there's no one who escapes that trap.

55:18We have to take a break. When we come back, the story of the last successful champion of Article 5 amendments.

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56:54What if you could learn more about your health in under an hour? The PreNuvo Whole Body Scan gives you a comprehensive look at your health, screening for over 500 conditions, including many solid tumors as early as stage one. High quality imaging, no radiation, no contrast. Book your scan today at PreNuvo.com. That's P-R-E-N-U-V-O dot com. Gain clarity, confidence and peace of mind with PreNuvo. Invest in your health today. Visit PreNuvo.com. That's P-R-E-N-U-V-O dot com. I mean, mostly what you describe is a history of amendments not passing, but there are a few kind of, I don't know, amendment heroes in your story who like get a bunch of stuff done.

57:36And I was particularly sort of enchanted by Senator Birch Bayh, who was the last kind of amendment warrior that existed before the nail in the coffin of Article 5. Could you describe Birch Bayh and his mission in life? Yeah, I love this guy. Like, I am an archive rat. Historians are in two varieties. There's archive rats and then there's like people who make sweeping generalizations. I'm an archive rat. I work really hard to say something sweeping but like I just could spend so much time with Birch So he's this guy from Indiana, a Democrat, very very handsome, charming, he's kind of like the Kennedy of the Midwest And people thought he was like going to be a presidential contender in fact he sought the Democratic nomination I think in 68 briefly But he does have a law degree and so when he gets to Senate as a young senator Jim Eastland, who the big Mississippi segregationist who's chair of the Senate Judiciary Committee, puts him on this graveyard committee, which is the Senate Judiciary Committee's subcommittee on constitutional amendments.

58:43And it's like where ideas go to die. You have an idea for an amendment and it goes to that committee and nothing's ever going to come out of that committee. But he's a very ambitious guy, though. So he's like, I don't know, maybe we should hold some hearings on some stuff. And Aislinn's like, dude, do not hold hearings on these things. It'll kill you. The things people want to do with constitutional amendments are like, nobody's going to win. No one's going to look good. It's going to be bad. But he starts holding hearings on things. He's like, busing, I'll hold a hearing. Abortion, let's hold a hearing.

59:14I mean, that's a little bit later. But he basically gets through four constitutional amendments in that decade. And he also is significantly responsible for getting the Equal Rights Amendment out to the states. So he would have said one of his great accomplishments was the 25th Amendment, which makes provisions for presidential disability, right? So Eisenhower had like two heart attacks and then also a surgery. Then Kennedy was shot. People were like, what do we do? You know, what if Johnson had also been shot in Texas or in Dallas that day in November of 1963? So the 25th Amendment is sort of succession, presidential succession and provisions for if a president becomes incapable of executing the office.

1:00:04But he also gets through, you know, the 26th Amendment, which reduces the voting age from 21 to 18. Right. The student anti-war movement had really fought for that. His he was not a big fan of the ERA, but his wife was. And she kicks him in the pants and he gets that done. But the thing he really cared about the most and is the heartbreaker of, I mean, in my mind of the book, is the abolition of the Electoral College. So there had been a lot of concern about the Electoral College. Like probably the most common, most frequently introduced amendment on the floor of Congress is either to reform or abolish the Electoral College.

1:00:44Because given changing population, it's a ticking time bomb. Especially with a polarized electorate, it's a ticking time bomb. Like before, you know, 2000, it was not common for someone to win the popular vote and lose the election. Right. But that has happened several times in the 21st century. And it happened or seemed like it was about to happen in Bayes era. And people really worried about that because they thought that I think rightly it's really hard to even understand what the hell the electoral college is and why we haven't. And so the Democratic legitimacy of a president elected who has lost the popular vote, that's tough for people to take.

1:01:27It just is. People are uncomfortable with it. And so there were a bunch of plans, different like reforms that would make that less likely. And then there was just like, let's just get rid of it. And I thought this was the natural successor to the 25th Amendment, which was also about presidential succession and the legitimacy of whoever's holding the old Oval Office. That, OK, so here's another problem of presidential succession, which is the Electoral College and the likelihood of someone winning the White House who did not win the majority of the votes. So he – I'm sorry. I realize my answers become like tails.

1:02:08No, I want them to be tails. This is great.

1:02:14He thinks he's got this in the bag because he does a survey of every political scientist in the country. They all approve it. Americans in public opinion polls, it's way above 80 % abolishing the Electoral College. It passes the House. It's going to go to the Senate. It's 1969. and really the only people weirdly who oppose the reform is the NAACP. The NAACP has thought since the 1950s before the Voting Rights Act that the Electoral College was like one of the few things that amplified the black vote in the north. So blacks can't vote in the south because of Jim Crow, but in the north they can vote, and in the cities where they have large numbers, their votes are amplified by the electoral college that was the thinking and so they construed NAACP as an organization construed any attempt to tinker with the electoral college as an as a way to disenfranchise black voters so they hadn't really like updated their thinking after the voting rights act and they still thought that and by kept saying no no this actually is the right thing it's the right thing for civil rights um but like when he introduced that the NAACP sent to telegram to every member of the Senate, like urgently begging them to vote against the abolition of the Electoral College Amendment.

1:03:35So there was that problem. And he tried really hard to deal with that without much success. Because a lot of like the Urban League, a lot of civil rights organizations agreed with Bay. But the problem was they alone would not have been able to defeat the amendment. The problem was that Richard Nixon had nominated in quick succession to Southern segregationists to seats on the Supreme Court. And the Democrats wanted both of them axed. And they're very like, Biden would not have seemed like the person who should be wielding the ax, but like some other guy was a coward and then Teddy Kennedy didn't want to do it because he thought he was going to run for president.

1:04:14I don't know, whatever. They wouldn't do it. So they're like, Birch, could you please defeat these? And so he had to go dig up the dirt and destroy the reputations of these two men, And one of them really was contemptible, but the other one was really not contemptible. And Nixon, Nixon, well, it was a problem with Nixon, but all the Southern segregationists in Congress were like, we're never doing anything for that damn guy again. And so they refused. They voted against abolishing the Electoral College to punish Birchbeye for having defeated the nominations of two of Nixon's Supreme Court justices.

1:04:50And that is why we still have an Electoral College. I mean, it's so depressingly tit for tat political rather than big ideas. And there's a sense that he spent all of his political capital doing this and there's going to be no one else. I mean, maybe there's going to be someone else like him, but that is a depressing notion that it basically is a place that you kill your political career is in amendments. yeah yeah it's there's there's like a coda to it too he in the 70s he tries again and uh i think it's like seven 1977 and it's it's so stressful he there's this quite brilliant conservative constitutional scholar named his name's martin diamond who was really opposed to abolishing electoral college and he comes to testify and buys committee and then he goes to sit and watch where the other people who are testifying he's opposed to abolishing it but the other people are testifying we're going to testify that day about why it's the right thing to do but the martin diamond has been so stressed out by his testimony he has a heart attack in the hearing room and birch by and orrin hatch try to revive him and the phone like the emergency phone in the room doesn't work and help does not come and the guy dies and i think the hearings just never resume.

1:06:14Like, it's just, it was not going to happen. It just feels like fate is not on the side of abolishing the election, which is a horrible death for this poor man. But it's, I don't know, it's sort of like the narrative gods are speaking as well. Yeah. Yeah. I find this when I read history books of things I actually know the outcome of, and I still get to that point where I'm just like, just don't go to the theater. Just don't go. And you have these moments in your book that are like that, that are just like they just hurt your heart in a way because you think, oh, it could be so different, you know, just for these little tiny things.

1:06:52Yeah, yeah. Yeah. So even though there is this sort of one way ratchet of the of the Article five that, as you discuss in your book, and ritualism is on the rise and amendments become less and less possible, you do kind of end on an optimistic note about a sleeping giant that might awaken. And how do you maybe see amendment happening in the future? And why might you be optimistic about such things? Partly I feel, this is a strange confession to make, I feel a public duty to perform hope. So I do all the time, and whether I have it or not, maybe that's a misplaced sense of duty. I do think, though, that we are in a moment in American history of tremendous constitutional change.

1:07:38Tremendous constitutional change. The powers of the executive have changed dramatically in the last 10 years. The separation of powers has almost entirely eroded, not entirely, but significantly eroded. There's a real question of whether this administration will successfully argue that birthright citizenship is not, in fact, in the 14th Amendment. And I think that puts a lot of pressure on the document, right? And there's also an argument to be made and legal scholars have made that a constitution that has become functionally unamendable lacks legitimacy. I think there is a bit of a crisis of legitimacy to the Constitution, right?

1:08:18There's that. The current document of the Oval Office says he does not know if it's his duty to uphold the Constitution in spite of having sworn an oath to do just that. So I think that I think it's an unsustainable and untenable situation. You hear more about constitutions from AI companies than you do from the general public right now. So I think there's like a pressure point that we are at. I do think there are also a lot of initiatives that are very quiet and sleepy right now, but could awaken. So one is an organization called Democracy 2076, which is really a youth organization that's trying to hold citizens assemblies to get people to talk about.

1:09:02Well, it does take forever to change the Constitution. Honestly, it takes about 50 years historically to get an amendment from idea to ratification. So if you could imagine what the Constitution should look like in 2076, what do you want? And just have those conversations because I think kind of freeing up our imagination is an important thing to do. So I think there's a fair bit of that. I have heard from so many readers who have like amendment ideas. Go talk to 2076. I guess I have had and still haven't lost some hope that the hoopla around the 250th, you know, much of which is either jingoistic or silly, could be a way for people to talk a little bit more about constitutionalism.

1:09:49And I think there's some real possibility that some states, a number of states have, like every 10 or in some cases 15 years, have a question on the ballot. Should we hold a constitutional convention? And everyone has said no since 1986 when Rhode Island held one. But we used to have state constitutional conventions all the time, and I think they're really good for civil society. Even if the constitutions don't mean amending, it's fine to just get together and say, yes, it's all right. Leave it as a stat. But I think there's a fair chance that there'll be some state constitutional conventions coming about.

1:10:22So I don't know. I think things are stuck until they're not. And the Berlin Wall comes down. Yeah. Well, Jill LaFore, thank you so much for talking with us. Thank you so much. I'm such a fan of your work. I really appreciate your time. Thanks to you both. It was a real honor to be on your show. I really appreciate it. If you want to learn more about constitutional amendments, I highly, highly recommend Jill Lepore's new book, We the People. It is engaging, it is funny, it is full of fascinating side stories. And if you're into audiobooks, she reads the audiobook herself, and it's just fantastic.

1:10:56Join us next month for the constitutional breakdown of Article 6, which includes the Supremacy Clause and Article 7. The 99 % Invisible Breakdown of the Constitution is produced by Isabel Angel, edited by committee, music by Swan Real, mixed by Martine Gonzalez. Kathy Tu is our executive producer. Kurt Kolstad is the digital director. Delaney Hall is our senior editor. The rest of the team includes Chris Berube, Jason DeLeon, Emmett Fitzgerald, Christopher Johnson, Vivian Leigh, Lasha Madon, Joe Rosenberg, Kelly Prime, Jacob Medina-Gleason, Talon and Rain Stradley, and me, Roman Mars. The 99 % invisible logo was created by Stephan Lawrence.

1:11:36The art for this series was created by Aaron Nestor. We are part of the SiriusXM podcast family, now headquartered six blocks north in the Pandora building in beautiful uptown Oakland, California. You can find the show on all the usual social media sites as well as our own Discord server where we have fun discussions about constitutional law, about architecture, about movies, music, all kinds of good stuff. You can find a link to the Discord server as well as every past episode of the Con Law Book Club and every past episode of 99PI at 99PI.org.

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