Title: Jill Lepore on the American Constitution

[music]

Brian Lehrer: It's The Brian Lehrer Show on WNYC. Just to clarify a little bit on that Brian Kilmeade statement and apology, just so that we don't overstate or understate, he did say on Fox & Friends when he apologized that in discussing the murder of the woman in Charlotte, North Carolina, that's where it was, not Baltimore, and how to stop these kinds of attacks by homeless mentally ill assailants, including institutionalizing or jailing such people so they cannot attack again.

I'm quoting now, "Now, during that discussion, I wrongly said they should get lethal injections. I apologize for that extremely callous remark. I'm obviously aware that not all mentally ill homeless people act as the perpetrator did in North Carolina, and so many homeless people deserve our empathy and compassion." He left open the idea that he really meant to suggest after an attack, but that's where the controversy was.

Back with us now, Harvard historian and New Yorker Staff Writer Jill Lepore. Her new book is called We the People: A History of the U.S. Constitution. Part of it is a history of the original document and the many successful and unsuccessful attempts to amend it. Part of the book is an argument to make the Constitution easier to amend. I will definitely ask if that's a good idea per her values in today's polarized country. Interestingly, one of Professor Lepore's roles is Director of Harvard's Amendment Project, which says it aims to compile, classify, and analyze every significant attempt to revise the Constitution since 1787.

Jill Lepore was last here for her 2023 book, These Truths: A History of the United States. Jill, we always appreciate it when you come on with us. Welcome back to WNYC.

Jill Lepore: Thanks so much, Brian. Great to be here.

Brian Lehrer: After writing your ambitious history of the United States as a whole, why a history of the Constitution in particular?

Jill Lepore: I had a really fun time writing the history of the United States that I tried to pull together in these truths. A lot of readers wrote to me and said how much they valued the constitutional history in that book. They hadn't found that in other U.S. history books. I thought it would be really interesting to try to pull together an account of the history of the U.S. Constitution.

Though I actually want to quibble at the start, Brian, with the idea that the book is an argument for making the Constitution easier to amend. I'm fascinated by that characterization. I'm a historian. I'm not a policymaker or a policy proposer or even a political pundit. The book doesn't make such a recommendation. I don't have a list of amendments that I propose in the book. It is a reflection on the extended history of the difficulty of amending the U.S. Constitution in distinction to the state constitutions, which are, in general, quite easy to amend. I take stock of what it might mean that it has been difficult to amend the U.S. Constitution. I don't have a policy brief. I just don't. I don't have one.

Brian Lehrer: Well, maybe I was over-interpreting what I saw as an implication from some of-

Jill Lepore: Fare enough.

Brian Lehrer: -the history in the book about how difficult it's become over time and how reluctant both Democrats and Republicans have become to try to push for constitutional amendments. We'll get into some of that, but since you mentioned the states, since your book does touch on state constitutions, it got me curious to look up how many times some state constitutions have been amended. We know the U.S. Constitution has been amended 27 times.

I looked up the politically diverse, or maybe opposite states, of New York and Mississippi. Ballotpedia says New York's Constitution has been amended at least 207 times, 20 of them just since 1996. Mississippi's 123 times. It's a lot in both cases compared to 27 for the U.S. Constitution. I didn't look deeper to analyze where the amendments go in opposite, left, right directions, but I have a guess. Do those raw numbers say something about state versus federal constitutionalism?

Jill Lepore: Yes, that is a very big contrast. Although the U.S. Constitution we've ratified 27amendments, about 12,000 have been introduced on the floor of Congress. It's a little bit difficult to count in the states, but if you look across all the states, something in the order of 12,000 amendments have been proposed to state constitutions, of which about 8,000 have been ratified, so for a 75% success rate in the states. If something gets proposed in the states, it has a much easier path to ratification. A lot of legal scholars would say, "Well, the state constitutions are a mess, and people are actually putting in constitutions what are really just ordinary statutes that don't belong in constitutions."

There's a very active debate about what is a good amendment rate, but the U.S. Constitution, compared to other national constitutions, has one of the lowest amendment rates. Whereas American states, that amendment rate, something on the order of 75%, is common across national-- The U.S. states look a lot like national constitutions in that way. Also, most of our states have replaced their constitutions, not just amended them.

Brian Lehrer: You write that the U.S. Constitution rests on three 18th-century beliefs. The first is that the Constitution is a machine. What do you mean by the Constitution is a machine?

Jill Lepore: The framers of the Constitution were very much living in the shadow, or maybe in the bright light, we might say, of Newtonian physics. The incredible intellectual revolution that we think of as the scientific revolution of the 17th century, or a set of ideas, we think of as mechanical philosophy. The discovery of the law of gravity led to a really deep-seated belief that all of the natural world could be understood in relationship to physical laws, as if the world itself were a giant machine. People sometimes talked about it as a giant clockworks that had been set in motion by a creator, by God.

The framers of the Constitution applied this idea of mechanical philosophy to politics itself. Alexander Hamilton talked about the new science of politics, that what distinguished the moderns, that is, the 18th-century political philosophers, from the ancients, was this idea that even the act of government could be analyzed and reduced to forces that could be kept in check, like the gears of a machine. When we talk about checks and balances in constitutions or the separation of powers, these, for the framers, were really somewhat more than a metaphor of thinking of the Constitution as a mechanism. Very precisely.

This is among the reasons the U.S. Constitution has not been amended. If you have this perfectly designed clockworks where one force holds in abeyance another force, and when you wind something up, it engages an engine, then you don't want to tinker with it. In that sense, they really did understand constitutions as machinery.

Brian Lehrer: The other two 18th-century beliefs that you cite there, which I guess are related, are that the human mind is driven by reason and history moves in the direction of progress. I'll ask you in a minute if the 21st century, if you think the founders of the Constitution-- I realize you said you're not a pundit, but I'll at least ask if you think that the founders would still think that the human mind is driven by reason and history moves in the direction of progress. What was the 18th-century, the 1700's context of those? Because if they believed in progress, then one would think that they would be open to amendment, not to have a static document that was written in 1787 or so.

Jill Lepore: Right. Progress is the watchword of the 18th century. It's a different word than we use today when we talk about progress. I think most people, when they use the term progress, they're actually thinking about technological progress. I would think that's especially true with younger people. That, when you talk about progress or change over time, people are like, "Well, which version of the iPhone did I have, or is this before or after Twitter, or before or after the Internet?" We tend to index change by technological progress, and that's how we tend to think about it.

Brian Lehrer: I guess I tend to think of Martin Luther King, the arc of history bends towards justice. Right?

Jill Lepore: Yes. That notion of moral progress, that is the way that people in the 18th century used the term progress or thought about progress. They thought of the American Revolution, and later the French Revolution, although they were very ambivalent about the French Revolution, as the great English radical Richard Price said, "A great amendment in human affairs."

That the end of monarchy, the throwing off of monarchy, and the devising of written constitutions that guaranteed rights and allowed for the consent of the governed and declared the equality of all people marked this great amendment in the history of human affairs. A complete break with the past. Paine said, "We begin the world anew with the American Revolution." They understood, though, that this isn't a one-time thing. They very much believed in the incrementalism of the findings of the scientific revolution. There are big ideas, like the Copernican Revolution or the Newtonian Revolution, and then there are findings and adjustments, and changes.

For the framers of the U.S. Constitution, they borrowed an idea that they got from the state constitutions, which was that there should be a fairly generous provision for amending the Constitution. Remember, they had gathered in Philadelphia in this hot summer of 1787 in order to revise the existing frame of government for the union of the 13 states, which was the Articles of Confederation, which were amendable, but only by the unanimous consent of all 13 states, which meant that people kept proposing amendments to the Articles of Confederation and they could never achieve them. It was just like too high of a bar.

They knew that they needed to have an amendment provision, and they wanted it not to be too easy because they were trying to write down a Constitution in order to provide stability across time or across generations. They wanted this constitution to be durable, but they didn't want it to be too hard. Because if you don't have a way to make corrections, improvements, repairs to a written constitution, then the only way to change the government in any fundamental Sense is insurrection. They had just been through a terrible, horrible war. They were trying to come up with a peaceful means of changing the frame of government.

I do think that this commitment to political progress, legal progress, but also moral progress, because the word amendment has a real moral meaning to it in the 18th century, is foundational to American constitutionalism. They did not expect that it would become so difficult to amend the U.S. Constitution, nor that it would become so easy to amend the state constitutions. How are they to know what to expect? I think we have kind of forgotten how foundational this principle, this philosophy of amendment, was to the founding of the United States.

Brian Lehrer: Those 18th-century beliefs, the human mind is driven by reason, and history moves in the direction of progress, do you ever wonder, as a historian, or speculate, if the framers were alive today? Maybe they would think the human mind is driven more by passions, and history just rotates between progress and reaction.

Jill Lepore: I've yet to meet a historian who imagines what people from the past would think of today in the sense that people from the past are actually rooted in the past. Their entire worldview is a product of the period in which they lived. Just like you can't extract-- Benjamin Franklin once said, oh, he really wished that he could be preserved in a vat of Madeira wine because he wanted to see what the country was going to be like in 100 years. People in the past are interested in what life would be like in the future, but you can't just pull somebody out of a jigsaw puzzle and put them in your own jigsaw puzzle. It's a piece from a different puzzle. It doesn't really fit.

That very question it's actually really interesting. What would the framers do? You actually see that emerging in American popular culture after this book is published by one of the founders of fundamentalism, What Would Jesus Do? This is in the 1890s, when fundamentalism, the religious movement, is being founded in the United States in opposition to Darwinism. Then it extends to buttress what emerges in that era, which is the first modern form of constitutional conservatism, where constitutional conservatives during the Progressive Era keep asking, "What would the founders do?" This is when they coined the phrase the Founding Fathers. They begin to deify and worship the drafters of the Constitution.

That very move, it's very interesting, what would the founders do, is a constitutional fundamentalism that itself has a quite interesting particular political history. It's been a very big part of, say, the Tea Party movement. It's, of course, the logic, to some degree, behind the mode of constitutional interpretation that's prevalent on the Supreme Court, that's known as originalism. That we should always be asking, what would James Madison say? Oh, could you bring an AR-15 to an elementary school? What would James Madison say?

Even that very question, I don't mean to litigate the question, Brian, because it is an interesting question, but to even engage in the logic of that question is to choose a mode of understanding constitutionalism that's not the one that frankly, the founders subscribe to.

Brian Lehrer: It's really fascinating for me, and I'm sure for the listeners to hear you as the historian that you are, reflect on that question that many people probably speculate, and I dared to ask out loud, what might the framers think about one thing or another? If you're just joining us, my guest is Harvard historian and New Yorker Staff Writer Jill Lepore. Her new book is called We the People: A History of the U.S. Constitution. Listeners, you can call or text 212-433-WNYC. Anything you want to say or ask Jill Lepore, relevant to her book, 212-433-9692.

You mentioned the Tea Party, and I was interested in that section of your book where you note that the Tea Party movement sprang up in 2009, right after President Obama was elected, with the motto, the Constitution means what it says. Then, as you also note, they wanted a constitutional convention. How do you understand the Tea Party at once digging in on the Constitution, "as it is," means what it says, and wanting to throw it open for a rewrite?

Jill Lepore: Holding a convention is entirely constitutional. I take your point, but I don't think the two things are necessarily in conflict. What has happened over the course of American history is the Constitution is changing all the time. I'm sure you had many shows about constitutional change. A Supreme Court decision comes down, we think about the Dobbs decision overturning Roe or Obergefell in 2015, constitutionalizing protecting same sex marriage under the protections of the 14th Amendment. The Constitution is changing all the time.

At the moment, it's being changed in this very odd way in which the President of the United States, in the office of the executive, declares that, for instance, birthright citizenship is not in the Constitution. As if by fiat, that is so. Always reminds me of Captain Picard, make it so. That's completely unconstitutional. There is no role for the president in interpreting the Constitution in such a way or in offering. He can say whatever he wants, but it doesn't make it so.

There is constitutional change happening all the time. The way that constitutional change is written into the Constitution and provided for is through Article 5 of the Constitution, which provides for free formal constitutional amendment, either by an amendment being passed by two-thirds of both houses of Congress and sent to the states for ratification, or by the states calling for a constitutional convention to propose amendments that then go back to the states for ratification.

Those are the two things we never do. We've never had the convention, and we don't very often do the amending, but we nevertheless change the Constitution. It's going to happen. There are adjustments required, and there's been this odd push me, pull me in constitutional history in that there are flurries. There are moments when what George Washington called the constitutional door is opened, and suddenly a slew of amendments get ratified, like the Civil War and Reconstruction Amendments that are so important to our constitutional order. Then the door shuts. Then it takes decades for another series of amendments to even be publicly discussed.

In the periods between these little flurries of amendments, is determining what the Constitution means. Because changes its mind- not often. The court attempts to not frivolously change its mind, but the court does change its mind on what the Constitution means. That is the way that our Constitution most often changes, which, because that's a long-standing practice, but it's not in the design, if you think about that mechanism, then the clock is a little out of kilt. We're losing five seconds a day. Eventually, you lose a year.

Every time the Constitution changes by way of Supreme Court interpretation, the balance of power between the three branches of government, the way that the people are supposed to have a checking power, that no longer really exists. You probably remember time before Supreme Court appointments were so newsy, so controversial. Everybody was fixated on them. It's really not. It's only since about 1987, with Robert Bork's nomination by Ron Reagan, that pressure on these Supreme Court nominations has been such a matter of public contestation. That's because so much is at stake, given that the Supreme Court is the only currently operating mechanism for changing the Constitution.

Brian Lehrer: Oh, that's so interesting as a reason why it's become so political every time there's a Supreme Court nomination. Even looking further back, your section on basically the whole 1800s, 1803 to 1896, is called the contest over interpretation, beginning with a chapter called Let's Examine the Word White. Were there constitutional battles before, after the Civil War, over interpreting the word white or what were the battles over interpretation in the 1800s, if not via the Supreme Court?

Jill Lepore: It's a really dynamic period. The contest in the 1800s is over who gets to decide what the Constitution means and how to amend it. Pretty quickly, it becomes clear that Article 5 isn't going to work. That mechanism was like, "Let's try to have that Goldilocks bar, not too hard to amend, but not too easy." Seemed like a pretty rational compromise, I'm sure, in 1787, but that was before political parties existed in the United States. By 1800, there are political parties. Suddenly, it's really hard to get a two-thirds vote for anything in Congress.

Then the sectional divide that existed in 1787 gets much more severe as the Southern slave states really dig in on defending the institution of slavery by the 1830s. The northern states are now all free states. They're really opposed to slavery. How are you going to get to the two-thirds bar if you have political parties and you have sectional divisions?

Brian Lehrer: Just so people know the numbers, to amend the Constitution, because I don't think we said it out loud, it takes two-thirds of each house of Congress and three-quarters of the states. Is that accurate?

Jill Lepore: Yes. You think about that, it's decades of no one can propose an amendment that deals with slavery. After 1833, because of a gag rule that's imposed by the Southern slave power, you can't even read out loud a petition opposing slavery on the floor of Congress. There's no way that slavery can be defeated by constitutional amendment in that period because of these forces that the framers didn't intend.

You go from 1803 to 1865 without any constitutional amendments. That's not to say there's not a lot of constitutional contestation because, of course, one of the things that's happening is abolitionists who, early in this period, really denounce the Constitution. William Lloyd Garrison, the founder of the American Anti-slavery Society, famously burns the Constitution. He calls it a covenant with death, an agreement with hell. He says it sanctions slavery.

Then Frederick Douglass, the great Black abolitionist, breaks with Garrison and says, "You know what? No. Let's just say the Constitution does not sanction slavery. Let us defend the Constitution as an anti-slavery document." Abolitionists really led by Black abolitionists, what they do in these years is they essentially constitutionalize the Declaration of Independence. We hold these truths to be self-evident, that all men are created equal. They take that language that we are created equal and essentially make it a part of the Constitution. On the back of that argument, they defend the Constitution.

Now there's two competing constitutions. The first thing the Southern states do when they secede and form the Confederacy is they write a new Constitution. There is a Confederate Constitution that says, "Slavery is allowed within this Constitution." We could think of, at the federal level, all the constitutional contestation being over who gets to decide, is slavery allowed or not allowed under the terms of this Constitution?

There are a lot of players in that debate. It's not just members of Congress duking it out. It is also the hundreds and hundreds and hundreds of Black men who meet in effectively constitutional conventions all across the free state. Starting in, I think, 1829, they hold more than 200 of these Black conventions that are de facto constitutional conventions where they're making arguments, offering constitutional interpretations. At the same time that the states are holding their own constitutional conventions, another 200 constitutional conventions are going on in the states where only white men are participating.

What the states are generally doing in those years are dropping property qualifications for voting. It used to be you had to be a taxpayer, own a certain amount of real estate, or a certain amount of cash in order to vote. Because of the democratization of American society, the states are dropping those property requirements. Once they do that, that means that Black men could vote. Black men tend to be very poor. Although in some places eligible to vote before this, in this period, free Black men are likely to be enfranchised. They're going to be enfranchised if property qualifications are dropped.

A big thing the states are involved in doing is introducing the word white as a qualification for voting in the states, which is partly what the Black conventions are all about. These are people organizing around trying to defeat the introduction of the word white into state constitutions in the same way that later suffragists would have to work after the 15th Amendment, introduces the word male into the Constitution. It takes suffragists, and as they say, 50 years to get the word male out of the Constitution.

There is this whole world of constitutional agitation and struggle interpretation that I think we tend to leave out of U.S. Constitutional history because we're really focused on the court. The court is immensely important. I don't mean to gainsay that, but back to your question. Why did I want to write this book? I just think it's actually really useful to realize that people were fighting over the meaning of the Constitution and over who had the authority to decide what the Constitution means. That's been the case all throughout American history.

Brian Lehrer: Jill Lepore, Harvard historian and New Yorker staff writer, with us on her brand new book, We the People: A History of the U.S. Constitution. David in Omaha, you're on WNYC with Jill Lepore. Hi, David.

David: Hi. I would like to add that although I don't disagree with the Founding Fathers looking at a mechanistic development of the Constitution using Newtonian physics, these men were extremely well educated in the Latin and Greek Catholic classics and the Bible. They recognized the basic weakness of human nature. With that, they were, unlike maybe a lot of people say, worried about it becoming a monarchy again, and as we would maybe put these days, an authoritarian government.

Now, back in the day, Congress held the maximum power. I think that our Congress has given up its prerogative to make the laws, largely because, in a way, we have too much democracy. If a congressman doesn't want to get primaried, he has to go to the most extreme position either-

Brian Lehrer: Of the party's space.

David: -either on the right or the left.

Brian Lehrer: David, thank you. I'm going to leave it there. Jill, there's a lot in there, but maybe you want to comment on his take on the framers reflecting on something you had said earlier.

Jill Lepore: Yes, no, that's absolutely the case. If men were angels, we would need no governments. They have a very dark view of human nature. They have an especially dark view of what Hamilton referred to as an excess of democracy. This is how we end up with, for instance, the Electoral College, because they get to the point of, "How are we going to elect the president?" Someone says, "Well, what if we just had the people elect the president?" It was like, "No, no, it's the last thing we can possibly do."

There are reasons for that. They were like, "Don't think anybody could possibly know anyone outside of their own state." Whereas it takes weeks to travel, how are people going to know a national candidate? The next proposal is, "Well, let's have Congress elect the president." Well, we can't do that. That violates our separation of powers, and our clock will be out of whack.

They come up with this other idea and a lot of the mechanisms that are in the Constitution, which we would now call aristocratic provisions, for instance, that the state legislatures elected members of the Senate. The people didn't elect the Senate before the 17th Amendment. These aristocratic provisions were designed to essentially filter the popular will because, exactly as the caller says, of the real and very informed fear of demagoguery and of the possibility that a demagogue could influence ordinary voters and seize power, and even seize unlimited power. The checks that we have in the Constitution are meant to avert that.

I would say, though, that this does tie the caller's question. I didn't go there, but this question does tie to the difficulty of amendments. A lot of the states had very aristocratic provisions as well, especially the 13 original states. Not all of them, but some of them had legislatures that elected the governor. They had very aristocratic provisions. In the democratizing constitutional revolutions of the 19th century, most of the states amended out all their aristocratic provisions. Some of them, for instance, added things like term limits for their legislators because those were considered more democratic.

That's the kind of thing that you can't do, although people have tried and tried and tried to the U.S. Constitution, do something like imposing term limits because of the nature of the amendment mechanism. I absolutely agree with the caller about the fecklessness of Congress and its general impotence. Many people have observed that it's one of the many dysfunctions of our federal government right now. I think it is worth reflection that among the possible remedies for those dysfunctions, not available to the people is amending the Constitution right now.

Brian Lehrer: We have about 10 more minutes with Jill Lepore on her book We the People: A History of the U.S. Constitution. We will bring it more into the 20th and the 21st century and take more of your questions and comments. Stay with us.

[music]

Brian Lehrer on WNYC as we continue with Harvard historian and New Yorker Staff Writer Jill Lepore. Her new book, We the People: A History of the U.S. Constitution. Moving into the 20th century, I think your timeline is that first the Democrats, beginning with FDR in the 1930s, and then the Republicans came to de-emphasize amending the Constitution even more. You were just talking about how hard it was from the beginning of our country. Each of the parties in the 20th century chose instead to work more- Supreme Court to interpret or influence the Constitution. Is there a moment or a reason when you can say that the emphasis started, and why?

Jill Lepore: There's a big rush of amendments in the Progressive Era. There are four amendments ratified between 1913 and 1920. They're all progressive amendments. The court is really conservative at that time. Progressivism and conservatism in that era don't map onto the party system. There are conservative Democrats and progressive Republicans. This is new in American history. That's what our polarization is. This is big. People are like, "Oh, we're amending the Constitution." Also, we have this court. They're checking one another in a certain kind of balance.

Then that begins to fall apart. In 1924, Congress passes a new amendment, the Child Labor Amendment, granting Congress the power to regulate the labor of children and therefore prohibit it, which the Supreme Court had said the Constitution does not grant. This was a way to overturn a Supreme Court ruling. There's a huge movement arrayed by, really, the owners of Southern textile mills to defeat the Child Labor Amendment because they want to keep employing very young children, especially young Black children, in their textile mills.

They're really successful. In the 1930s, when FDR is confronting the still conservative Supreme Court, which is beginning to strike down the New Deal, people say, "Oh, well, we should just constitutionalize the New Deal. Let's go get some of these things ratified in the form of constitutional amendments." FDR looks at the Child Labor Amendment. Now, it's been 10 years, 12 years since it passed Congress, and it's going nowhere.

Eleanor Roosevelt had been really involved in the Child Labor Amendment. FDR is like, "We're just not going to--" You only need a million dollars to defeat a constitutional amendment in this country at this point. That seems like not a lot of money, but it was a lot of money in the Depression. He decides to brazen his way through the court, essentially bully the court. This is where the court-packing plan comes from, when FDR proposes to just add justices to the court. He's going to get his constitutional agenda by hook or by crook.

Ever since that time, there have been some amendments ratified since then. The way much of the last hundred years has really involved both sides going to the court as the mechanism of constitutional change. Whether that means trying to get people on who will make those decisions or offering up new arguments to the court, it generally means both of those things, but that has really changed the role of in our constitutional arrangements.

Brian Lehrer: You have a chart in the book. Amendments Pledged on Party Platforms 1984-2024. Party platforms, of course, being what each party adopts in the presidential election years. There are 44 of them between 1984 and 2024, though they keep recurring. Along partisan lines, the Republicans keep proposing right-to-life amendments, balanced budget, parents' rights, banning flag desecration. The Democrats keep proposing campaign finance reform. I guess that's to counter Citizens United, the Equal Rights Amendment. I don't know that any of those 44 party platform constitutional amendment planks in the last 40 years have gotten through. Is it zero?

Jill Lepore: Oh, it's zero. Really, they're just political theater. The big dynamic of the last few decades is really that social and fiscal conservatives were very critical of the court enacting constitutional change under the Warren court in the '50s and '60s. They kept proposing constitutional amendments to overturn decisions of the Warren court, insisting that Article 5 was the only way to change the court, that Supreme Court decisions are not allowed to change the meaning of or reinterpret the Constitution. They couldn't get any of those fiscal, mainly the right to life amendment and the balanced budget amendment, a social and fiscal conservative amendment.

They found, they found out, as FDR had found out, that the amendment mechanism no longer works. Then they created originalism and, in the Reagan years, began filling with jurists who subscribed to this new constitutional judicial philosophy and enacting the constitutional change that they sought by way of judicial appointments instead of by way of Article 5 amendment.

Brian Lehrer: You do have Reagan as among the more interested among temporary presidents in trying to amend the Constitution. I'm just curious if that connects at all with the quote at the very start of the book that the Constitution is intended to be amended. It comes from the great constitutional scholar, Bugs Bunny, speaking in 1986 during Reagan to leading intellectual, Daffy Duck. I guess there was an actual cartoon in 1986. Did it reflect something about the Reagan era, or is that just a coincidence?

Jill Lepore: Remember Schoolhouse Rock!? That was during the bicentennial revolution in 1975, 1976. Looney Tunes tried to do something for the bicentennial of the Constitution, which is 1987. That's where you get the Bugs Bunny, Daffy Duck. It's actually just a great video. It didn't really take off the way Schoolhouse Rock! did.

I argue that, that moment, the bicentennial of the Constitution is really, really important because it's what launches originalism into the public mind through the Bork hearings in 1987, which are taking place even as you can't go into a gas station without being handed a copy of the Constitution because it's the bicentennial. Your kids can't turn on TV without Bugs Bunny lecturing them about the Constitution. That is actually a really important inflection point in the history of the Constitution.

Brian Lehrer: We've just got about a minute left. Here's a comment from a listener who writes, "I do not want a constitutional convention. Ever since the ERA Amendment failed, I do not believe that amendments presented to the electorate are understood. I think that the right-wing propaganda machine influences a minority of voters that are party regulars and are more likely to vote than other eligible voters." It goes to something I suggested in the intro to the segment that you chastised me for. Would you say anything about, wouldn't progressives have more to fear today from a constitutional convention, or if it were easier to amend the Constitution in this political climate?

Jill Lepore: That is absolutely what progressives believe. I think the caller has a really good point. I wasn't chastising you, Brian. I just want to clarify my own views. I think that the issue that I wanted to raise in thinking about the inability to amend the Constitution in whatever fashion is, it creates all kinds of problems to hold a constitutional convention. Constitutional amendments really have no future except by constitutional convention right now, which also I don't think has any future. That says maybe, but I do think it's worth figuring out how did we get here and what is lost in abandoning the very idea that the people have any authorship in the Constitution.

Brian Lehrer: Harvard historian and New Yorker Staff Writer Jill Lepore. Her new book is called We the People: A History of the U.S. Constitution. Thank you for the book, and thank you for this conversation.

Jill Lepore: Thanks so much.

Brian Lehrer: That's The Brian Lehrer Show for today, produced by Mary Croke, Lisa Allison, Amina Srna, Carl Boisrond, and Esperanza Rosenbaum. Our intern this time is Vito Emanuel, and we had Juliana Fonda and Amber Bruce at the audio controls. Stay tuned for All Of It.

[music]

 

Copyright © 2025 New York Public Radio. All rights reserved. Visit our website terms of use at www.wnyc.org for further information.

New York Public Radio transcripts are created on a rush deadline, often by contractors. This text may not be in its final form and may be updated or revised in the future. Accuracy and availability may vary. The authoritative record of New York Public Radio’s programming is the audio record.