We the People

 

Jill Lepore, We the People: A History of the United States Constitution, (NY: Liveright Publishing Co., 2025) 581 pages

We the People begins with an introduction establishing America’s 18^th century colonists expected constitutions will be amendable. Toward the end of this 22 page introduction author Lepore explains the “book is a history of American constitutionalism as told through a collection of stories about constitutional change.” It relies on an archive of every significant proposal to amend the U.S. Constitution, assembled as part of a personal project of the author.

The book has four parts with each part subdivided into three, or once four, chapters. Parts follow in chronological order with Part I from 1774 to 1791; Part II 1803-1896; Part III 1905-1959; Part IV 1961-2016. A brief epilogue ends the book.

Part I opens with the First Continental Congress in September 1774 when the colonies sent delegates to draft a constitutional document to replace British colonial government with a system of self-government. Lepore takes readers through state conventions drafting and attempting to ratify their constitutions and then to the drafting of the 1781 Articles of Confederation.  Narrative continues with the arguments writing our U.S. Constitution at the 1787 Constitutional Convention, the difficulties getting it ratified, and the ultimate drafting and adoption of the bill of rights.

Small groups drafted these many constitutions and then made them public hoping to get them ratified, but mostly they got a torrent of criticism and demands to change them. Opposition to slavery was strong and attempts to end it and define the rights of blacks brought lots of arguments, as did the constitutional status of women and Indians. When the delegates that worked through the summer of 1787 finished their work, there were renewed demands for amendments. Since their new constitution included Article V detailing an amendment process, James Madison convinced opponents they could amend after ratification. He succeeded in getting the constitution ratified as originally written by condensing the many proposals into ten amendments put at the end of the constitution as the Bill of Rights.

In 1787 it was not obvious amending the constitution would be as hard as it has turned out to be. In each of the remaining three parts Lepore has pages with lists of proposed amendments made as part of political party platforms. The lists provide topics for narrating the repeating demands for change by formal amendment, for narrating alternative constitutional interpretations and for reviewing Supreme Court rulings on constitutional disputes brought to it.

Part II has a thorough discussion of controversies over citizenship, the 1843 Seneca Falls women’s rights conference, voting rights, the nullification claims of John C. Calhoun and the claims of Chief Justice John Marshall to make the Supreme Court the final arbiter of constitutional disputes. Discussion of many Supreme Court cases and their influence on law and politics begin here with Marbury v. Madison and continues through the narrative where readers meet more justices with new views and new cases, often contesting and reinterpreting disputes.

The narrative considers the legal and constitutional chaos of the Civil War and reconstruction. Members of Congress proposed many amendments as a hope to avert war. One, the Corwin Amendment, would have prohibited amendments to abolish slavery. It would come again in March 1956 as the “Lost Amendment.” There is a thorough discussion of the 13^th, 14^th and 15^th amendments and the effort to define citizenship and guarantee civil rights to all. Lepore considers the controversies over rights to self government for those living in U. S. territories, especially Hawaii and Hawaiians, but also Chinese, Japanese and American Indians.

The Part III period 1905-1959 included the amendments 16 through 19 ratified from 1913 to 1920, where three of the four amendments – income tax, prohibition, and women’s suffrage – came after decades of protest. An amendment to abolish child labor began appearing on party platforms in this era, mostly as a response to the Supreme Court refusal to allow it; it failed. Lepore gives a thorough review of the Brown v. Board of Education of Topeka Supreme Court decision, the protest that followed and demands to repeal it by defiance or amendment.

In the Part IV years 1961-2016 readers meet Indiana Senator Birch Bayh who took over the Subcommittee on Constitutional Amendments in 1963. He convinced the country and the Congress to ratify amendment 24, 25 and 26 and almost succeeded abolishing the electoral college via another amendment. It was an era of well funded interest groups which brought an unprecedented number of Article V applications for constitutional conventions. Lepore explores a variety of amendment proposals for the right to life, school prayer, a balanced budget, busing, campaign finance, Indian rights and the controversies over judicial appointments. There follows another lengthy discussion of women’s rights and the ERA that includes the efforts of Patsy Takemoto Mink, Phyllis Schlafly and Supreme Court nominee Robert Bork, along with a review of gay rights, black rights and calls for significant changes to the constitution.

The last chapter before the epilogue features the life and career of Justice Antonin Scalia during the years he served on the Supreme Court: 1986-2016. Featuring Scalia appears to be a device to narrate the polarizing jurisprudence of a period when constitutional amendments became impossible. Since Scalia left a trail of academic writing and did not hesitate to give speeches, conduct seminars and offer his judicial views in television interviews, his claim our constitution had an original intent to guide jurisprudence free from politics and personal preference generated significant public argument in these years. Lepore narrates these arguments, emphasizing Scalia’s gun rights opinion in D.C. v. Heller, which captures the hypocrisy of it all.

In her brief epilogue Lepore reminds us our founding fathers believed in reason and progress, but mentions “outdated constitutions undermine democratic governance.” Then she questions if there is a point beyond which a constitution cannot be stretched but breaks. Our Constitution feels obsolete, to be charitable. In We the People Lepore makes it feel much worse than obsolete. By covering events from 1774 to the present Lepore establishes the same disputes occur and then recur as unresolved politics from one century to the next: women and minority rights to wit. Powerful interests have repeatedly exploited the undemocratic features of our constitution to block and stall and impose their will without regard to compromise or democracy or public welfare as the many events Lepore narrates here so clearly prove. Legislation is hard enough to pass in our bicameral Congress, but given the Supreme Court expects to nullify laws passed by an elected Congress, disputes that could and should be resolved with legislation become amendment proposals instead: abortion to wit. Since Article V makes amendment difficult to impossible, change comes to a halt while protest continues or returns in a new generation. The book fully captures the rambling, hurtling cycles of anger, frustration and chaos in a perpetually polarized country. In the 21^st century money alone governs America, where our outdated constitution undermines democratic governance.