How A ‘Brittle’ Constitution Broke U.S. Politics with Historian Jill Lepore

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23:40Kara Swisher:So let's turn to the Supreme Court and its role in interpreting the Constitution as it changes, which is part of what scholars call the informal amendment process, which they're always interpreting it different ways. The 14th Amendment, my favorite amendment, was ratified to protect formerly enslaved people from discrimination in the wake of the Civil War. Its language is fairly broad and was used to underpin two of the biggest Supreme Court decisions of the modern era, Brown v. Board of Education, which desegregated public schools, and Roe v. Wade, which established the former constitutional right to an abortion.

24:11Kara Swisher:The broad scope means it can be used to expand rights for Americans, gay people, things like that. It's been used in a lot of ways. It's like it's a real turducken of an amendment. But it's also left it vulnerable to attacks from conservatives. Is there a better version of that, of the 14th Amendment and what it would look like to make it more defensible, I guess? Yeah, that's an interesting question. I mean, how I think about the 14th Amendment is, you know, if the Constitution is the trunk of a tree, the 14th Amendment is the strongest limb. Like, it's a really strong branch. But the claims that are made on the 14th Amendment, we are out at the very kind of twiggy end of that branch, and the twig just keeps breaking.

24:54And the reason for that is that over the course of the 20th century, certainly beginning with Brown v. Board in 1954, people who are disenfranchised, they have no chance at amending the Constitution, right? Like in the Jim Crow era, black people just can't vote in most of the country. And there's just, I mean, although there's been the Great Migration, there just aren't enough black voters. And like, you're not going to win civil rights legislatively. You're not going to win a civil rights constitutional amendment in the 30s, 40s, 50s, and the segregated. Like, it's not possible. That is what the Supreme Court is for, is to protect the fundamental rights of minorities whose rights can be violated in the tyranny of the majority.

25:36So, you know, Thurgood Marshall, when he, you know, helps establish the NAACP's Legal and Education Defense Fund in the late 1930s, his strategy is, here's the only way we can change the Constitution. We're going to go to the court. And we're going to make this argument that the 14th Amendment, you know, says this. And Earl Warren, who's the chief justice, is like, okay. And he asks, you know, the argument is heard twice, and he sends back both parties to, like, provide better evidence. Like, what does the 14th Amendment, what was it for? Does it indeed prohibit segregated schools? And in the end, Warren says, you know what?

26:16We can't actually turn back the clock, and we're not going to turn back the clock to the moment when this thing was written. We live in a different world. And this is the right thing to do. And building on that are all of the decisions that follow from it that are under the Warren Court that grant rights that are crucial and vital rights for other political minorities, including reproductive rights and rights, gay and lesbian rights. It's under the 14th Amendment that anti-sodomy laws are declared unconstitutional. So a lot is built out on that very, very strong limb of the tree. But not achieving those things via constitutional amendment means that they can always be reversed by the court.

27:03Kara Swisher:Right. Race and racism is a common thread that weaves through the history of the Constitution. It shaped Article 5 and the 14th Amendment. And you can draw a line between, as you said, the Supreme Court, Cijan Brown versus Board of Education. But then the rise of originalism, and that's the judicial philosophy that says courts should only consider what a given constitutional provision meant at the time it was written and adopted. Original intent was used by segregationists in the South, obviously. So why do we keep coming back to the idea of original intent, and especially when it relates to racism in constitutional history?

27:40Yeah, I mean, I think you could say, well, it's clear why people with certain political preferences would favor an originalist interpretation of the Constitution. What's harder, I think, to understand is why it has gained such a purchase, not just among jurists, but as a matter of popular culture. Like, if you do polling and ask people, like, how should you interpret the Constitution? People say, well, you should obviously figure out what the original words meant and what their intention was and how they were understood at the time. And that's not lacking in sensibility, but it's actually a really unique American thing.

28:23this great legal scholar at Columbia Jamal Green once wrote a paper in which he compared ideas about constitutional fidelity in all of England's former colonies like let's take Australia, Canada, the United States look at all of them none of them have originalism except for the United States but why is it so strong in the United States and he came up with this He looked at all these different factors that distinguished the U.S. from places like Canada and Australia. And he came up with fundamentalism because the predominance of a certain branch of Protestantism in the United States that cherishes a literal reading of the Bible as fundamental truth.

29:15So I think there's a nice comportment. I'm not saying that there are a lot of Catholics who are originalists too, right? And I think that's in some ways a different strain.

29:22Kara Swisher:So that's how you explain the rise going from Brown v. Borg? No, I mean, I think that's a way that I understand why it seems so logical to so many Americans. Right. So you also read that one of the stranger paradoxes is the difference between how the framers came to view their constitutionalism versus how the architects of originalism understood it. And you mentioned veiled Supreme Court nominee Robert Borg, late Justice Scalia, and Clarence Thomas. Talk about that paradox. Yeah, so it is important to originalists that originalism is original. And there they are simply wrong. Like, the historical record does not support that contention.

30:01All of these people, Madison and other framers, change their mind about the Constitution all the time. And they change their mind about how it ought to be interpreted. So at some points when it was politically to their interest, they might have said, oh, we should go back. But the originalism, as advanced by Bork and Scalia and now practiced by Alito and Thomas, say, confines the historical record to a very small set of sources. Like, if you want to figure out, like, what does a phrase in the Constitution mean, you need to look at the Constitution, of course. You need to look at the notes that James Madison kept at the Constitutional Convention.

30:41You need to look at the records of the state ratifying conventions, and you should look at the Federalist Papers, which are 85 essays written by supporters of the Constitution. And you're like, all right, that's very interesting, because those things were generally not available to people reading the Constitution in the 19th century. So Madison's notes weren't published until after his death. The Federalist Papers were printed in newspapers only really in New York in 1787 and 1788. They were compiled in later volumes, but they weren't like highly circulating, like large print runs. The records of the ratifying convention, some of them I think weren't even published until the 20th century.

31:22So originalism actually in this weird way is really only possible in the digital age. So it really can't be original if you need a keyboard to tap out into a search bar what it is that you're looking for. You need to search through these corpuses. I mean, one of the things that Madison warned about was that constitutions become more brittle as they get old because people have a tendency to venerate them in the way that they venerate things that are just old. Right.

31:49Kara Swisher:They even say that. Jefferson, there's so many quotes from all of them saying aversion. Yeah. So it's not their view that the Constitution needs to be read the way Antonin Scalia or Robert Bork said they should read it. They came up with that argument for very particular historical political purposes. And, you know, that doesn't distinguish them from other jurists, left or right. They're not unique in that way. But, you know, constitutional conservatives in the middle decades of the 20th century watched the Warren Court hand down decision after decision and were furious at their lack of judicial power and political power.

32:29and they also couldn't get any amendments through. So after Brown v. Board of Education, all the Southern segregationists, in addition to saying we won't honor it, like we're going to have this campaign of massive resistance, they all started trying to pass constitutional amendments, constitutionalizing segregation and they couldn't get anywhere. Same thing after Roe v. Wade in 1973. Immediately, opponents of Roe introduced right to life amendments. They couldn't get anywhere. What they needed to do was take over the court and they knew that. But they also really quickly came to understand they needed to abandon Article 5 and come up with a different argument about what the Constitution is and how it should be read.

33:08Kara Swisher:And what it says. So there are obvious flaws with originalism, including the unavoidable fact that, as you pointed out, women, black people, non-white immigrants and Native Americans were excluded from the writing and voting on the Constitution. But nonetheless, the Supreme Court is using originalist arguments in landmark rulings that redefine the Constitution recently. In example, in an opinion overturing Roe, Justice Samuel Alito wrote, abortion is not deeply rooted in the nation's history and tradition. So they're reinterpreting it again, right, to suit their needs. Yeah, so they are. And again, that's what people do.

33:43That's what judges do. They're pretending that they're not, but like that's what's a little weirder about it. But the way that works, though, what is that history and tradition? Like, one of the examples that I—I'll give you two examples that would suggest why that is an indefensible proposition as a matter of historical investigation. So Robert Bork was once asked, if George Washington had written a letter to his wife Martha explaining what he meant by direct taxes in the Constitution, would that be admissible for your understanding of the constitutional phrase direct taxes? And Bork says, absolutely not.

34:20That has nothing to do with how I could possibly understand the Constitution. Like what Martha might have written to George is well beyond the pale, right? And yet the claim of originalists is that the reason this is the right method of interpreting the Constitution is because it's the most democratic, because the delegates were elected. But if you were to widen the aperture of your lens for looking at the past, you would see, for instance, vast numbers—well, not vast numbers, but sizable numbers—of petitions by enslaved men and women, mostly men, in the 1770s and 1780s, insisting on their human right to be free.

35:02those I think ought to be considered proposed amendments right like they are a political expressions by people who have no ability to influence the constitution and the state constitutions but they are attempting to and they were set outside the record of constitutional agitation at the time but why should we set them outside like on what grounds do we not look at So there are like 200 conventions held by black Americans in the 19th century. They're called colored conventions. They're essentially constitutional conventions where they're held all over the free north. These people get together multiple times a year and debate the Constitution and how they can achieve the end of slavery and how they can guarantee the equal protection of the laws.

35:44These are the guys that write the 14th Amendment. But if you're trying to interpret the 14th Amendment right now, no Supreme Court decision has ever quoted any of those convention proceedings. Those are somehow outside the world of the allowable, admissible historical record.

35:59Kara Swisher:What rights are the most in this originalist bent? What are the most vulnerable rights that were hung, I guess, on the 14th Amendment largely? Well, right now, everything is vulnerable because we live in a system where what is constitutional is determined by the President of the United States. Right. So, you know, in some ways, the book, which I just finished last year, feels dated. It ends in 2016. But it describes a world in which Congress and the Supreme Court sort of vie for authority to interpret the Constitution. And that authority has been seized by the executive office. So when the president can say birthright citizenship is not in the Constitution and the vast machinery of an entire political party supports that, it's true if he said it and he has at his command the National Guard, he's commander in chief of the armed forces.

37:10this is exactly the situation that the constitution and its amendment provision was designed to avert

37:18Kara Swisher:we'll be back in a minute

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39:53Kara Swisher:So let's pivot and talk about Trump and the Constitution. You wrote in The New Yorker that Trump, quote, has set about dismantling much of both of the federal government and the Constitution system to checks and balances. Can you talk about this? Because it is it seemed easy at this point, although he's being stopped by certain courts. Yeah, Ian, I still do think he will be stopped in much of this. It's the bluster of, if I say it, it's true. If I say it more loudly, it is even truer. That is his one big move. And that has been hugely successful for him. So I don't mean to undermine or understate the power of that move.

40:40But I think Trump and Trumpism are also a product of a world where the Constitution became unamendable. I mean, after the ERA, the amendment that Americans most seriously considered in the 70s and 80s was the balanced budget amendment, which had, like ERA, about 80 percent popular approval, like, say, around 1979 or so. There's just a lot of people who were really worried about federal government spending. So that essentially constitutional frustration of a large segment of the American public, I think Trump tapped into that. Right.

41:15Kara Swisher:But so liberals had hoped, obviously, the courts would be a way to stop Trump's authoritarian impulses. The tactic has worked. Case after case has then reached the Supreme Court where the administration is pretty consistently won, at least for now. We keep hearing, are we in a constitutional crisis, mainly centered on whether Trump is defying the courts? But what about when the Supreme Court lets him undermine the Constitution? There's no remedy for that, right? If the Supreme Court always gives him what he wants in the end. There is no remedy for that except the election of 2028, which is a real remedy and not to be sneezed at.

41:52I think that those who live by the court die by the court. So people who are opposed to the agenda that Trump is imposing have a lot of political organizing and electoral work to be doing. I'd love your thoughts on what will happen here. Historians just make piss poor profits. Okay. Just really do. You know, it is many people will say, and I think this is true, that the federal judiciary is the only part of the federal government that's currently working. Congress has abdicated most of its power to the president. So but, you know, much hinges in these decisions on their appeal to the Supreme Court.

42:36And we don't know what's going to happen then. And the constitutional crisis piece of it is when the court inevitably, in at least some of these cases, rules against Trump and upholds, say, the lower courts that have found his actions to be unconstitutional. What will Trump do? He has many tools in his toolbox for undermining the court if he chooses to do so.

43:05Kara Swisher:And one of the things today I was noticing, there was a bunch of federal judges who were decrying the Supreme Court. And then at the same time, there was a story saying John Roberts is trying to play the long game with Trump. It's giving him a little so that preventing him from hurting judges themselves. Yeah. I mean, I happen to be, I believe that each justice on the Supreme Court is acting in good faith with their beliefs. and I think it is important to not undermine the court and no matter how vehemently I disagree with it and how infuriated I am by decisions in particular that compromise the rights of really vulnerable fellow citizens of mine and immigrant aliens in this country.

43:54So I guess I stand by my hope that the court will stand up. And as much as I disagree with a lot of decisions of the court, I am also very open to being persuaded that some of the decisions I disagree with might have been the right ones. And I don't know, you know, like I remember, I still hear from people who say the presidential immunity decision, without that, Joe Biden would be in prison. and Barack Obama would be in prison. And I actually think history may show that that is what that decision was for the most part about, rather than giving a free hand to President Trump.

44:40Kara Swisher:So every episode we get a question from an outside expert. Here's yours. Hi, I'm Neil Katyal. I'm a law professor at Georgetown and a Supreme Court lawyer. and I have a question about the professor's very powerful argument about the Constitution and constitutionalism. And my question is, is the Constitution really relevant today, particularly in a world where amending the Constitution is so hard? Chief Justice Marshall in McCulloch v. Maryland said the great thing about a Constitution is that it's flexible and intended to endure for ages to come. But when we look at our now Constitution today, Is that really true?

45:20Kara Swisher:It was written by dead white men. It doesn't even really truly guarantee your right to vote. It lacks all sorts of protections for individual rights that other countries have. It tolerates barbaric punishments. And it presupposes, most of all, a Congress that's actually doing their job instead of just rolling over as this Congress is. So why should we care, Professor, about the Constitution and constitutionalism? Or should we just start over? There you go. Okay, great. Thank you very much for that. Fantastic question. You know, anti-constitutionalism is a very strong strain of the American political tradition.

46:02There have been Americans from the start who have said, let's scrap this thing and start over. You know, that was the case in 1787. It was the case, you know, throughout the 19th century. You know, most people remember learning in high school about how William Lloyd Garrison burned the Constitution, called it a covenant with death because of its sanctioning of slavery. There are a lot of people in the progressive era who said, let's just start again. We can't even fix Article 5. Let's just scrap the whole thing. If Article 5 is not working, nothing's working. And that actually is the argument, right?

46:35If Article 5 is not working, the Constitution's legitimacy is really to be questioned because it is foundational to constitutionalism that you should be able to fix it and improve it, make amends, amend your ways. And there I actually agree with the questioner, right? Like I do think there's a real question about the legitimacy of the Constitution when it can no longer be amended by the people. And it's not – but I would say that is not just the Constitution as a document. That is a civic problem because all of our state constitutions can also be amended, right? They can also be amended by convention.

47:12And we have not had a state constitutional convention, a full one in this country, since 1986 when Rhode Island held the last one. Rhode Island, again with Rhode Island. Rhode Island, I'm telling you, it's all Rhode Island. But, you know, Americans just aren't going to sit down in a room with a bunch of people they disagree with and feel that they can work out fundamental law. Like, we have lost—it's as if someone said, let's have ChatGBT fulfill jury duty for the next 20 years. We just will figure, like, it's a pain to go serve on a jury. You know, the algorithms could do it better. And then 20 years from now, we're like, let's do jury service.

47:47And no one even knows—no one would think they have the capacity to do it. Right. Like, you could sit in a room with 12 people, be presented with evidence, and agree on what was true and what was not true. But that is actually what a convention is, right? Like, we just don't do that anymore. So it's not just the failure of Article 5. In a way, that would be the easier thing to fix. It's that we cannot sit together and argue about fundamental questions and agree to abide by a decision of a group.

48:18Kara Swisher:I mean, the framers even suggest the idea of scrapping the Constitution, the Declaration of Independence are quite explicit. Yeah, that's a right to alter and abolish. Yeah, let me read it for people who don't know. Whenever any form of government becomes destructive of these ends, it is the right of the people to alter or to abolish it and to institute new government. Do you see that happening? You know, I actually, I think the thing that seems like a very, very big straw on the back of that camel is artificial intelligence. Explain why. I just think that we live in a world where, I was listening to an interview that Sam Altman gave in 2016, in which he said, you know, the thing is, I've been reading Madison's notes on the Constitutional Convention because this is going to be so— That might actually be true.

49:07Kara Swisher:Might be true. This is going to be so big. It's going to be so big. We're going to have to have a worldwide constitutional convention to figure out what fundamental law even is again. He didn't say it in this way. He said, we'll have a world governance board, whatever. Like, oh, they'll have to be like, because, and he says, because I mean, I'm in it. But if I wasn't, I wouldn't want these fuckers making all these decisions for me. Well, I say that to them all the time, Jill. which is what constitutionalism is right like these fuckers don't get to decide so uh i that is still true that was 1787 and it is true now i don't see how even if you think that like one teaspoon out of every liter of that snake oil is not snake oil we are at the beginning of a new era in the human condition.

49:57And how is this 18th century technology, which has barely held us together as a country for nearly 250 years, how is it going to rise to this particular set of challenges? Certainly, Congress is not going to rise to that.

50:13Kara Swisher:But, you know, interesting, your next book is The Rise and Fall of the Artificial State, and it's about AI. Give us a sneak peek then. You're grappling with it, obviously, as it relates to the Constitution. Yeah, I'm just really trying to think through kind of how did we get to this place where— These fuckers, you may say it. These fuckers decide everything. But like so much of our public discourse is mediated by—is basically owned by corporations. And four people, four or six people, ten people. Yeah, a handful of people that control public discourse. That is the doomsday narrative of every work of science fiction from like 1899 on.

50:54you know, it's sort of, now it is a canard to be like, why do these people read those books and read them as instruction manuals? They do. They're cautionary tales.

51:02Kara Swisher:They do. That's why we need an amendment to the Constitution against tech pros, you see. There shall be no. I think, I do really think constitutionalism is one of the great inventions of modernity. I don't think it's necessarily at this moment, given our civic culture, up to the task of addressing the oligarchy of those six corporations. You know, they're at the White House right now on the Rose Garden Club. Oh, great. They can help fund the ballroom. They're on that new patio that took all the grass out. Yeah. Yeah. Well, soon all the roses will be gone. They're gone. It's a Joni Mitchell world.

51:42Yeah, it is. They paved over Paradise and Park.

51:45Kara Swisher:They paved over the Rose Garden. Yeah, well, they're all there right now. Tim Cook, Sam Altman. They didn't invite Elon. They were just trying. He didn't invite Elon. Don't feel bad. I don't for a minute feel bad for him, but he must feel bad. Anyway, but you're right. This is something I'm glad you're right about. This is what I yell about all the time. Why are these six, seven, ten people making all these decisions for the rest of us? And it's yours to make decisions over, which is difficult, because then what levers of power do you grab when they have all of them, including the money, including...

52:15Kara Swisher:And control of our public sphere. Let's assume, last question, we're not going to start over, but that instead Trumpism leads to a catastrophe so great that it creates an AI opening for new amendments, new changes. Or as you put it, quote, from the burning scorched earth, new ideas might arise once more. That's a very, you know, it's Phoenix-like. It's, you know, that's a very potent metaphor often in history. How do you amend the Constitution then to fix this existing flaw as an insurer can survive another couple hundred years? One of the failed amendments that I spent most time thinking about, the kind of what if, Gaylord Nelson, the Wisconsin senator who started Earth Day in 1970, kind of after the moon landing, like we have to care about Planet A, introduced that same year, a constitutional amendment, environmental protection amendment.

53:06And that, too, seemed like, hey, that could probably get through if we weren't for, you know, first we're going to do ERA. And watching the dismantling of the EPA, which is one of the more nefarious and more consequential actions of this administration. Well, if the Environmental Protection Amendment in 1970 had actually been made part of the Constitution and ratified, you couldn't dismantle the ERA in that way. So, you know, when is the best time to amend the Constitution? It's the same time it is to plant a tree, which is 20 years ago.

53:41Kara Swisher:Oh, so what's the tree you're planting right now? I'm really just trying to get people to be willing to imagine that they could have a better constitution. All right. On that note, Melette. Thank you so much, Jill. Thank you.

53:58Kara Swisher:Today's show was produced by Christian Castor-Russell, Kateri Yoakum, Michelle Eloy, Megan Burney, and Kaylin Lynch. Special thanks to Bradley Sylvester. Our engineers are Fernando Arruda and Rick Kwan, and our theme music is by Trackademics. If you're already following the show, you get a free trip to Rhode Island. If not, go sit with those bros in the paved over Rose Garden. Rose Garden Club. Sorry, President Trump. Go wherever you listen to podcasts, search for On with Kara Swisher and hit follow. Thanks for listening to On with Kara Swisher from Podium Media, New York Magazine, the Vox Media Podcast Network, and us.

54:33Kara Swisher:We'll be back on Thursday with more.

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