Weekend Listen: America in Free Fall? Historian Jill Lepore on the US at 250

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2:42Jill Lepore, Pulitzer Prize-winning historian of the United States. I think from your voice, I feel that this weighs very heavily on you this moment in time. I think it weighs heavily on everyone, whether it's their job to think about it all day or not. We are in freefall off a cliff here. I don't know when we land. From Bloomberg Weekend, this is the Michelle Hussain Show. I'm Michelle Hussain.

3:16America's big birthday is upon us. It was on the 4th of July 1776 that a relatively short text, the Declaration of Independence, was formally adopted in Philadelphia. A final departure of British troops from the United States was still some years away, and so was the other key foundational document of the country, the Constitution, which wasn't even drafted until 1787. And that's the text that's our route into America's story this July 4th. The Harvard historian Jill Lepore joins me to take us through her monumental work, We the People. It's a book on how the Constitution came about, and crucially, how there was an expectation that it would likely change over time.

4:15This is not, however, an episode entirely set in the past, because Jill Lepore is acutely alive to the pressures of our time, to a contested sense of what America is or what it should be. She's also unusual in her background, and we'll talk about this early on. She's very far from an ivory tower type historian. She's served in the US military, and her route into teaching history at Harvard is a sideways one. Plus, she's prolific. Articles, a podcast series on Elon Musk, and many books. We the People has just won her a Pulitzer Prize, And her next book, The Rise and Fall of the Artificial State, which is about technology and democracy, is out next month.

5:11So here is Jill Lepore on America Past and Present. Oh, hello. Thanks so much for having me. Anything in particular on your mind today that you're particularly thinking about or state of the world? Yeah, you try to think about lunch just to get through the day, really. I mean, that's my plan. I'd love to begin with a sense of you before we move on to your work, particularly because I was struck by the fact that you are one of the foremost scholars and writers on American history, and yet you have an unusual background as a professor of history because neither of your first two degrees are in history.

5:52None of my degrees are in history. Yeah, I always wanted to just be a writer and graduated early with a degree in English. I couldn't afford to stay in college. I worked as a secretary, actually here at Harvard for a while, and wrote novels during the workday and sat in on classes. I was a high school athlete, you know, Girl Scout, person with a great sense of civic duty, had no money for college, and I got an ROTC scholarship to go to college. Which is the system by which your tuition fees and other expenses are paid for in exchange for agreeing to serve in the military afterwards. And agreeing to serve, yeah, yeah.

6:29So then what happened? What changed? You're talking to us now about your books on constitutional and other history, but you could have been sitting in the Pentagon listening to Pete Hegseth speak. I do sometimes think about that, yeah. And all my friends in college were ROTC kids. You know, you incur a service obligation when you enter your sophomore year. And I actually loved ROTC, But at the time, Reagan's foreign policy was really interventionist, for instance, in Haiti. And in particular, Reagan was exploring what was colloquially known as the Star Wars program, the strategic defense initiative.

7:06He was going to build a missile shield, something like the Israeli Iron Dome right around the planet to end the Cold War. and so all the students were engineers and everyone thought the Star Wars plan was completely nonsensical as an engineering design and I thought politically it was also nonsensical and I went and had a meeting with my commanding officer and I said I don't think I could work on that and he said you know cadet and you can't be in the military you don't get to choose this is not going to be for you if you're going to be evaluating the projects that are coming out of the Pentagon on as to whether or not you're ethically willing to comply with them.

7:46He was a lovely person and he was a very wise man. So it was a fork in the road moment. So how did history come into it then? Did it happen while you were working at Harvard as a secretary? I don't think that my interest in history is necessarily the same as that of many of my wonderful and distinguished colleagues who I think often are interested in the debates among historians about how to interpret moments or forces of change. I am interested in the relationship between the past and the present in a very vernacular way, right, in the sense of I think we all walk through our lives wondering how we got to where we are, how the institutions we work for, the companies we work for, or the farms on which we work got to be where they are.

8:35I'm just really interested in inquiring into the relationship between the past and the present and finding explanations that, in my mind, often offer a way for me to think about how to escape sometimes what feels like difficult present moments. I'm also wondering to what extent the past and your relation with America's past was there in your family life, because you're the grandchild of immigrants, aren't you? Italian immigrants. Is it true that your grandmother never spoke any English? You could never actually communicate with her? Yeah, no, she didn't. And as far as her Italian, we were always told mainly she was swearing.

9:14She was a hilarious, very earthy woman. But do you remember thinking about America's past in this very real way? It was a country that your grandparents chose. Yeah, absolutely. I mean, my father was born here in 1924 and was given the middle name Amerigo after Vespucci. but because he was born in the United States in 1924 is also the year that Congress passed the Immigration Act that essentially closed the doors of the United States to immigrants, certainly from Eastern Europe and to a significant degree from Western Europe as well. I don't know. I remember my dad telling me about that. He, when he was confirmed, he changed his middle name to Edward.

9:52That was his confirmation name. And there was a real kind of erasure. He was one of those second generation immigrants who he was completely fluent in Italian, but never spoke it with us. He didn't want us to learn to speak Italian. You mean because he was embarrassed? I don't know. I think most Americans grow up with some version of, you know, their account of the nation's history as a version of their family story, whether you yourself are an immigrant or, you know, your family has been in this country for generations upon generations. Do you think your father changing his middle name was a deliberate act of integration to try and be like everyone else?

10:24I think he was maybe a little bit embarrassed by it, but I once wrote an article called the Everyman Library about my father's books, because when he died, I inherited these books that he had, which are basically his college textbooks. And he had a copy of the Aeneid that he had really marked up, you know, which is a journey about trying to get home, much like the Odyssey. And I think my father had a very complicated relationship with the idea that he had come from someplace else. He was so rooted in the United States. I think for anyone also in Italian-American fighting in the Second World War.

10:59Fighting, you know, against the Axis powers that included Italy was really complicated. My mother was descended from Germans, and her father had worked for the Navy during the First World War, but was a German-American who was essentially pushed out of that kind of work. He had been at MIT, and German-Americans were considered a security risk during the First World War. So I don't think there's anything unusual in my story. You know, I really I do think we are a very complicated country with a very complicated relationship to family, community, the idea of the nation state, the tension between the universal and the particular, what makes America both distinctive and the fountainhead of universal ideas or ideas that have been embraced around the world.

11:44I think all Americans kind of wrestle with that, celebrate that, wrestle with it, wonder whether we have lived up to the nation's ideals. I think these are questions maybe more at this moment than in any other as we're on the eve of the nation's 250th anniversary. We're swimming in our history right now. The question is really whether we're drowning in it. Yes. So let's come right up to the present day then and your book, which is heavy in its subject matter and physically heavy as well, because it's a big work. And it's about the U.S. Constitution, we the people. Tell us about it, particularly the fact that you focused on how it was intended to be a living document, not a tablet of stone.

12:24Yeah, I think we have, to the degree that Americans kind of carry around with them any sense of the Constitution as having a history, as opposed to just being, you know, a piece of parchment that you could go see at the National Shrine and the National Archives, or something that members of Congress will wave these kind of pocket editions at one another. To the extent that we have an idea that has a history that we could trace it over time, that idea really relies on the Supreme Court. So like in law schools, I'm speaking now from the Harvard Law School, law students are really taught to learn a series of Supreme Court decisions.

12:57And that's how lawyers and judges are going to argue about the meaning of the Constitution. This is in reference to earlier decisions of the Supreme Court. And as an American historian interested in the story of the people as a whole, that always seemed to me something of a problem. because it presumes that the court itself has created a fiction about, which is that the Supreme Court is the only authority on the Constitution and the only mode of constitutional change that is possible is seeking change by way of the Supreme Court, when in fact, that is absolutely a crucial way that the Constitution changes and the Supreme Court has an unparalleled role in changing the Constitution.

13:35But if we think about the history of the Constitution only that way, We miss that the Constitution was written in an age that celebrated what I call the philosophy of amendment. The idea, very Enlightenment idea, kind of almost Panglossian, like the world is getting better every day in every way. The idea that if you're going to write down a Constitution, which was new, which was a new idea in the 18th century, if you're going to write down a Constitution, and it's an ingenious thing because then it's going to be transparent, the powers that government has, the limits to the powers of government, the rights of the people, all those things are going to be written down.

14:07We can inspect them. We can hold the government accountable to those things. We can insist on those limits. We can insist on those rights. This is a genius idea. But if you're going to write something down, there has to be a way for it to change over time. And it can't be changed by the forces of tyranny, which will be the inevitable mode of change that all of human history explained to the framers of the U.S. Constitution, that humans for almost the entirety of human history have been ruled by tyrants, been ruled by force and violence. So you have to have a mechanism for change, and that mechanism is amendment.

14:41And it's within the document, because I'm holding one of those pocket versions, and it's there, Article 5, setting out the way that the Constitution can be amended, which was essentially a key part of how it ended up getting passed in that, agreed to in the summer of 1787. Because without it, it was the way to bridge the disagreements to say, this is the document we're agreeing to right now. Yeah, I mean, it was necessary at the convention in the summer of 1787, where there was a tremendous disagreement. And the entire Constitution is the subject of very strenuously fought compromise. But everyone understood there was going to be an amendment provision, because that's why they were there in the first place, because the previous frame of government was essentially unamendable, required unanimity to amend what was essentially the treaty that united the 13 states, the Articles of Confederation.

15:31So they were there to come up with a new constitution because the other version couldn't be amended. So they knew they're going to have to make it amendable. And they did, but it would not have been ratified. So in September of 1787, the Constitution is sent to the 13 states, at least nine of which have to approve it in order for it to become law. But in practical terms, all 13 states have to approve it because what's going to happen to the other four? They're just going to walk away. So it's a very close call. People have a lot of problems with the Constitution. They have the states propose some 200 amendments to it even before it's they're willing to ratify it.

16:04And so the federalists who are the proponents of the Constitution say, look, it's OK. We know it's not perfect. We did our best. None of us are really entirely happy with it either. Everyone had a problem with something in the Constitution or something that wasn't in the Constitution. And so their whole kind of slogan was if it was a bumper sticker, it's ratify now, amend later. You know, just let's ratify it. Like we're in chaos here as a country. We have to have a constitution. Please just ratify that. We promise the first thing we'll do when Congress sits for the inaugural Congress is we will send amendments to the states.

16:37And in fact, they did. That's what the Bill of Rights is. But over time, over the sweep of these 250 years since independence, not since the Constitution, it has been amended very little. Why is that the case? Yeah, there's a whole field of political science that studies amendments, amendability, amendment rates, amendment difficulty. The U.S. Constitution, while undoubtedly the most influential constitution in the world, is one of the least amended and one of the most difficult to amend. It's not at the top of that list, but it's very, very high up in both of those counts. It has been amended really only 17 times.

17:12It has proven to be the case that for most of American history, it's very difficult, if not impossible, to amend the Constitution. And then something pushes that door open and then a flood of amendments come in. Then the door slams shut again. And then for decades and decades and decades, it's impossible to amend the Constitution. We are in a period now where it's effectively impossible to amend the Constitution. It requires a two-thirds super majority in both houses of Congress and then a three-fourths ratification, a ratification in three-fourths of the states. And the degree of polarization in the country today just effectively makes that impossible.

17:48I mean, think about two thirds is also the necessary bar in the Senate for impeaching a president. Yeah. So in your view, is that a good or a bad thing? Do you dislike the idea of it being amended or do you think it's an important and necessary function of democracy and we should be able to get there? I don't honestly have a prescription. I do think it's important to recognize that the The Constitution hasn't been meaningfully amended since 1971. That means that because change is going to happen, you know, like a river is going to find you can put a dam in, but the water is going to go somewhere.

18:22The water runs to the Supreme Court. And then the Supreme Court has far more power than it was intended to have, which is a deformity of our politics. Then Supreme Court nominations become hugely controversial. The public is really engaged in them. The Supreme Court justices have become really celebrities, personalities, characters. People know about them, their lives, they write memoirs, they go on book tours. That's not how the Supreme Court was meant to function. And I think it has contributed to presidentialism. That is to say that the celebrityification and magnification, exaggeration, amplification of the role of the executive, who in this instance, in this iteration of effectively an amendment drought, this president's view is that whatever he says is in the Constitution is in it and what he says is not in it is not, I think that's actually essentially a continuation of the kind of deformity of the separation of powers that has been out of whack since the Constitution became unamendable.

19:24So there's another argument why it would be good to amend the Constitution more often, and that is that I would suspect most Americans don't know the U.S. Constitution is amendable, for one thing, and we don't feel ourselves to be the authors of our own Constitution. And that is the principle on which the nation was founded and arguably is crucial to the legitimacy of the Constitution. So a lot of the political instability, constitutional instability we see now, I think we would describe as insurrectionary. And amendment was the mechanism that was meant to prevent insurrection. If you as a people wanted to fundamentally change the government, adjust something significantly, like impose term limits on Congress, for instance, you ought to be able to do it peaceably.

20:04You ought not to need to use political violence to secure that result. That was the genius of the amendment provision in the first place. I suspect that we're going to go back and forth in time, founding fathers present day, quite a lot in this conversation, because those are the threads you're already touching on. But let's hear then from President Trump. I'd like to play you these words from him when he was being questioned by NBC News about the deportation of Kilmar Brigo Garcia. Wrongly, as U.S. government officials acknowledged, to El Salvador. Your secretary of state says everyone who's here, citizens and non-citizens, deserve due process.

20:43Do you agree, Mr. President? I don't know. I'm not a lawyer. I don't know. Well, the Fifth Amendment says it's not. I don't know. It seems it might say that, but if you're talking about that, then we'd have to have a million or two million or three million trials. Don't you need to uphold the Constitution of the United States as president? I don't know. I have to respond by saying again, I have brilliant lawyers that work for me, and they are going to obviously follow what the Supreme Court said. What you said is not what I heard the Supreme Court said. They have a different interpretation. So when you heard those words, as I'm sure you did at the time, what did you think?

21:23He can't not know that it is his duty to uphold the Constitution. That is the oath that he swore one taking office. I think the overwhelming majority of the legal scholars consulted across the political spectrum are now convinced that we are in a considerable crisis regarding the rule of law in this country. Because Trump's behavior has been entirely different in this administration in this second term, which is to do whatever he wishes to do and hope that the court blinks without regard to its constitutionality or its legality, to just proceed and do it and see what happens. I think from your voice, I feel that this weighs very heavily on you this moment in time.

22:03I think it weighs heavily on everyone, whether it's their job to think about it all day or not. We are in freefall off a cliff here. I don't know when we land. Can you explain what you mean by freefall and what it is that you see that leads you to believe that it is so serious and indeed unconstitutional. Is that what you're saying, that the president is acting unconstitutionally? I think that many of this administration's actions, many federal courts have declared to be unconstitutional. It's not my personal view as a citizen. I may have my own evaluations of it, but the courts have declared much of it to be so.

22:47Is the central position in all of that the use of the executive order or the use of emergency powers? I think that has been an engine for Trump, characterized by an extraordinary number, not only of executive orders, a record-breaking number, but a record-breaking number of declarations of emergencies, an immigration emergency, an energy emergency, which gave the executive new powers to take action. And he was not the first to do that. In fact, the Democrats were the first to really use declarations of emergency for these purposes. Which Democrat would that have been? You see a lot of the use of the emergency powers by Bill Clinton, for instance.

23:24And there's, you know, there are a lot of declarations of emergency during what George W. Bush called the global war on terror. There are circumstances that to some degree or others would seem to necessitate declarations of emergency. Those that Trump offered up seemed, I think, to most observers far more opportunistic. But, you know, there's a larger story about the impotence of Congress, the relinquishment on the part of Congress of its powers to the presidency. That has been happening for decades. The press's fascination with the office of the presidency has been a real contribution to its exaggerated powers.

24:00I think Americans believe the president is far more powerful than the president is constitutionally meant to be because the press has become fascinated with the presidency. That really started in the 1990s at a time when Trump himself was becoming a celebrity, right? The sort of lifestyles of the rich and famous was something that Bill Clinton really participated in. Obama really participated in. there are larger historical forces at play here that make Trump's presidency possible that have to do with distortions of the separation of powers and have to do with the cult of presidentialism. So I guess what I mean about falling off a cliff to get back to this isn't, I feel like I've, I've veered too far away from your question as if I'm in a presidential debate and I have actually completely failed to answer your question, but it's an important question.

24:45So I'll go back to it and dutifully attempt to answer it. One of the things that I will confess annoying as an American political historian is being asked all the time, is this unprecedented? Really, every query I've gotten from every journalist has been, is this unprecedented? Is there a precedent for this? And I have recently decided I simply refuse to engage in that conversation, this is entirely without precedent. The kind of authority that this administration has claimed for itself and exercised over Congress, the Supreme Court, the states, the American people, citizens, immigrants, aliens alike, is without precedent in American history the end.

25:31Is with precedent in the histories of other nations, there is no precedent for this presidency in the history of the United States. American history is not a map that you can go to to see what's going to happen next. It's just not, we are off that map.

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