Originalism and Modern Political Instability

Hey there, it's Chhemita. I am still out on parental leave, but in light of the fourourth of July and the United States celebrating its two hundred fiftieth anniversary, we wanted to bring you this episode from our archives about one of our founding documents, the US. Constitution. Enjoy This is In Conversation from Apple News. I'm Shemit Basu. Today is the US. Constitution too hard to change Historian Jill Lapur has spent a lot of time studying and writing about the US. Constitution. And she says, there's one big problem with it, a problem that feeds many other issues with our politics right now. We're not amending it enough We have really abandoned the practice of convening to deliberate over fundamental law as citizens There's a vicious circle in which Partisanship and polarization make amending the Constitution more difficult and failing to amend the Constitution makes polarization and partisanship worse Jill has spent the past few years working on the Amendments project, a catalog that attempts to compile and classify every single attempt to revise the US Constitution from seventeen eighty nine to present day And that process has yielded a fascinating archive of Wuda Kura shutas throughout our nation's history If you look at all the failed attempts to amend the Constitution, together They constitute And if inccredible record of the political yearnings of the American people But becausecause amendment is almost impossible to achieve doesn't mean that what people propose is irrelevant, right? Like It actually then becomes a kind of index of the popular will. Jill is now out with a book called We the People, A History of the US Constitution, in which she makes the case that the modern unwillingness to amend the Constitution underlies many of the challenges we're now facing pololarization, power struggles between the branches of government, and a deep sense of democratic fatigue Note here that Jill and I spoke before the fatal shooting of Charlie Kirk and the subsequent renewed conversations about free speech and First Amendment rights, so you won't hear us discuss that We started our conversation by talking about how the Constitution is still changing all the time, just not through the formal amendment process The idea of amendment is you should be able to make fundamental changes as a people using this mechanism, this little special device that we have here And if you can't You're going to have to seize power in other ways So the end runs that we have made around our broken amendment provision are one most frequently over the course of American history. During eras when it's too difficult for whatever reasons to do with partisanship generally, to amend the Constitution, people go to the courts instead. Sure. Go to the Supreme Court instead and the Constitution is changing all the time. The court changes its interpretation of the Constitution all the time Generally, the pattern works. eventually people get really fed up with the court having all that power. The court loses legitimacy There's a kind of political revolution, and amendment, again, becomes possible for a while. So you're saying it's a bit cyclical for. It's s of hydraulic. Yeah. I mean, the constitution iss gonna change, right? It's just gonna to change. like circumstances change. And if it isn't changing by amendment, it's going to change in another way. At the moment, sure, the court is changing the Cstitution all the time, but at the moment, we're in this very weird situation where the president is changing the cononstitution all the time simply by declaring it to be so And there's nothing in the Constitution that provides for that. It is not among the duties of the executive to reinterpret the Constitution to suit. political agenda But we are in a in some ways in very new territory in terms of the executive authority over the Constitution. Yeah. I mean, I feel like the first few months of Trumps second term in office, the phrase constitutional crisis was being used a lot. Are we in a constitutional crisis? Does this justify? does this categorize itself as a constitutional crisis I feel like I'm not hearing that phrase as much anymore I am hearing more authoritarian turn kind of language I don't know how you feel about that as a phrase constitutional crisis. What does a moment like this reveal about The limits or the weaknesses of the Constitution as it currently stands Yeah, I think, you know, honestly, some of the fading away of the generally, I would say pointless public debating of whether we are or not or are not in a constitutional crisis is that the language of crisis is what has justified the usurpation on the part of the executive of so many powers of the legislative branch of our government, right? So I write for the New Yorker and I wrote a piece about the first hundred days of Trump's administration. and of the second term and I wrote a lot about the use of emergency powers, emergency declarations, which you know it's not that other presidents haven't declared emergencies and used emergency powers. And it is a way to bypass Congress and secure more essentially lawmaking power for the White House And in fact, Democrats did that first, right? Like that in terms of the modern over use of emergency powers, that is on Democrats But Trump's use of declarations of emergency and emergency powers just outpaces everyone else's by an extraordinary measure. and I think therefore Talking about crisis is exactly how Trump has seized the kinds of powers that he has seized. in other words. So I actually think a lot of people kind of backed off talking about crisis because talking about crisis, everything becomes an emergency. I mean, I argued in this essay, you know, we live in this era of emergency politics Yeah. And if everything's an emergency, then nothing is an emergency And it's impossible to do anything So Jill, in this book, you write that one of the Constitution's founding purposes was to prevent change. Another was to allow for change without violence It almost sounds like those two things are contradictory. So what do you mean by that? And what is the central argument that you're laying out here in this book? Well, one of the things we tend to forget is that written constitutions were new in the eighteenth century. They were a sort of innovation, a technological change and When you write down fundamental law There's a great advantage to doing so and that provides stability even across generations, right? We can write this document for ourselves and our posterity And it can endure and provide stability and predictability And it also holds rulers accountable to the fundamental law because it's stated, you can, you know, waive a constitution and say what you're doing is unconstitutional. You can point, you know, Toms Fain said like you could put it in your pocket England has an unwritten Cstitution and this was a big grievance of the colonists during their struggle against parliamentary authority. So Here's this great idea. Look, we're going to write it down. We want to see the fine print. What is The government we are setting up, what are the rules What are the powers of the different branches of the government? We can inspect that and then we ourselves, the people will ratify it So that's the sort of preventing change part. But at the same time The people who were framing this document and discussing whether or not to ratify it knew that there's also kind of a problem when you write something down because it can't change And before the Constitution was written in seventeen eighty seven The Union of States that was the United States was governed by the Articles of Confederation. And the amendment provision of the Articles of Confederation was, if all the states agree, we can amend these documents And nobody ever agreed. Members of the Continental Congress would propose amendments to the Articles of Confederation And someone would put the kaiibosh on. Usually it was Rhode Island People called it Rogue Island because wouldn't agreed anyay. So the reason that we have a Constitution is because the articles of Confederation were effectively unimendable That was a problem that the framers of the Constitution knew going into it. So they borrowed a device that was used in early state constitutions, especially in Massachusetts constitution of seventeen eighty, which was to provide a mechanism within the document for its own amendment not by the legislature, know not by an executive, not by the judiciary, but by the people themselves by ratifying an amendment And without that provision, the Constitution would never have been ratified because people really there was a huge opposition to the Constitution And it really was the promise of amendment that made its ratification possible. Wow I just want to know that you're referring to them as the framers I think a lot of people probably went to school and heard them being called the founders or founding fathers even. Why do you use this terminology Founding Fathers is an expression coined in nineteen sixteen by Warren G. Harding, who was a Republican and what we would call a constitutional conservative And he was concerned about the then progressive era progressives, who were both Republicans and Democrats. altering the Constitution through Constitutional amendment, things like At the time, people were quite concerned about the two newest constitutional amendments. One was that the people themselves could elect the Senate previous to that amendment The U. S. Senate was elected by state legislators And progressives had also gotten through the progressive income tax. So constitutional conservatives who wanted to stop the amending wave of the progressive era tried to sort of offer up a new interpretation of the founding that presented it as a kind of sacred like Moses and the Ten commommandments kind of engraved in stone moments. so Part of that political move was to begin to describe the drafterters of the Constitution who had always been referred to as the framers as the founding fathers. It's part of an era of constitutional veneration that we also associate with The First World War. It's a few years after that, nineteen twenty four that the Constitution is first put on display the Library of Congress under class and as a kind of shrine And you could agree with all those things. you could say, you know what I do think of them as founding fathers, And I do think it's a sacred document and I do think it should be a national shrine But that is a political position. not, you know, and one could defend it. I don't happen to share that position. but I think it's worth questioning the origins of that language and the role that it plays in making our Constitution more brittle and less malleable than it was meant to be Well, let's get more into that because I mean, that's so much of the crux of the book. Also, I mean, the idea of amendments being so crucial to the Constitution even existing in the first place, being agreed upon to exist And yet, you know, as we know, there are twenty seven amendments, right? The process has successfully yielded an amendment. twenty seven times How would you say this process is functioning of adding amendments to our Constitution? Well, you could think about it comparatively. So there are twenty seven amendments. The Constitution has been amended really only seventeen times because the first ten, the Bill of Rights were kind of all at one at the same time R. And the rest really have come in bursts. We have kind of periods of amendment drought and then we have amendment frenzies. And we are in one of the longer eras of drought The Constitution was amended Meaningfully last in nineteen seventy one, the twenty sixth Amendment lowered the voting age from twenty one to eighteen. Really something it comes out of the student anti war movement, right? you could be drafted to go fight in Vietnam, but couldn't vote The twenty seventh Amendment was ratified in nineteen ninety two but it had first been proposed in seventeen eighty nine. It's not really a new idea. So nineteen seventy one, that's a long time to go without amending the Constitution There's also another way quantitatively to consider amendments. So compared to other national constitutions, The U.S. has one of the lowest amendment rates at some points in American history, and it has had the lowest rate altogether It is one of the most difficult constitutions to amend just in terms of the hurdles that an amendment must pass And that is also true with comparing the US. Constitution to state constitutions. You know, most listeners can remember the last time their state cononstitution was amended Although to be fair, a lot of Americans don't even realize they have state constitutions. I was going to say, mayaybe if I turn over their ballot p attention to those kinds of questions. So yes state constitutions are amended all the time. Now just by ballot initiatives. If you think about after the Dobbs decision in twenty twenty two that overturned Roe versus Wade, a number of states considered in some ratified constitutional guarantees of reproductive rights, say that's within people's memory What states don't do anymore is hold constitutional conventions. that used to be extremely common. The last time any U.S state held a constitutional convention, it was nineteen eighty six, that is say a full dress Constitutional cononvention. That was Rhode Island, Rhode Island, Rhode Island. And there are a number of states that have in their state constitutions the requirement that every I think' usually every ten years, the voters are asked on a ballot question Should we hold a constitutional Convention So a lot of states have been asked that question since nineteen eighty six and voters always say no, because people no long it's not so much that don people think there could be important changes to consider to their state constitutions, but we have really abandoned the practice of convening to deliberate over fundamental law as citizens And that used to be a pretty kind of healthy way for You know people sometimes resent jury duty. but on the other end, people really believe in jury service, right? Like it is an opportunity to join with your fellow citizens, to share in a civic duty that requires paying attention to evidence deliberating what's true and what's not true and coming up with a verdict And I think that when people complete their jury service They're very proud of it. And there's a kind of renewal in your faith that ordinary people should be making big decisions and participating in that civic activity holds us together. It's like a family reunion, right? Like you o, we are all together.ike we do have things in common and we have a lot that we disagree about and we're different and we're alike. And you know, you could gripe about it, but the fact that it happens is a meaningful renewal O our basic commitment to govern ourselves I really feel like there are two types of people, ones who really do not want to be called for jury duty and those like me who are like, whyy have I not been called yet? I am dying to be called. I would love to do this. Yeah It's like theres almost some people might even have two sides of the same coin in themselves. Yeah. It depends on the time in your life being called. Yeah. Perhaps it does I mean, I think that a modern day, close to modern day example that people have in their minds when they think about amendments and the amendment process is the ERA, the equal rights ammendment. This was an amendment that would have guaranteed equal legal rights regardless of sex It was first proposed in nineteen twenty three. It was Congress in nineteen seventy two, but it was never fully ratified. What just the story of the ERA say about how amendments and how the amendment process has functioned in American politics Yeah, it says so much. It would be really fun just to write a book about, you know the lessons of the ERA.. But there's a few things that are interesting about it. So the ERA, in brief, as you say, introduceding Congress in nineteen twenty three, three years after the nineteenth Amendment granted women the right to vote In nineteen twenty four, Congress passes a constitutional amendment, the Child Labor Amendment, which is going to prohibit child labor. The Child Labor amendment looks like it's going to be ratified instantly. This tremendous amount of support for it Again, the Constitution has just been amended four times between nineteen thirteen and nineteen twenty. Yeah. We're anendment frenzy, It just feels like we're in a frenzy. And I think the Ch Labor amendment passes Congress the day it's introduced. Like it's like, oh it's going to go to the states. It's like so obvious. But the people who support the Child Labor amendment do not have a good ground game in the states. They don't set one up. They're overconfident. They're like ratification is going to be easy. Our problem was going to be Congress They know that public support for ending child labor is huge. What they haven't really thought about is how much money The national manufacturers who are interested in defeating the amendment because they want to be able to continue to employ children, especially textile mills in the south. These people have enormous money and they're really good at political organizing. and they successfully defeat the Child Labor amendment. And it's really kind of the end of the progressive era. So when you get to nineteen seventy two when that ERA finally passes Congress, it's almost the same story. It's a little heartbreaking if you're an ERA fan It's the same thing, like the whole problem was always going to be Congress. once it is do Congress like it's spending like eighty percent of Americans support the ERA in nineteen seventy two. Just ratified an amendment the year before in nineteen seventy one Lowering the voting age is just like a no brainer. it's gonna immediately just gonna be a question of like how much time it gets to get through these statehouses But the proponents of the ERA had no ground game in the states And they did not anticipate the kind of opposition there would be in this case, led by Phllis Schlafy in the Stopy area movement. and they are eventually defeated. And sometimes, you know, you sort of one of the one of the arguments you can make as a historian is They really ought have looked at the child Labor amendment because there were lessons to be learned. But the thing is amendment happens so infrequently that we actually don't learn the lessons of I don't think any political organization in the country really has any particularly good idea. If you really wanted to run an amendment campaign, no one knows how to do that. in living memory, it hasn't even happened And I mean, they're not going to do it because it's not possible. energy. But like even if it seemed like there was a window of opportunity to do it, how how would you do it? No one knows anymore. So it's a weird way. it's like Madison always said James Madison, we think of as the framer of the Constitution, the chief architect of the Constitution that we have That a danger of cononstitutions is that the older they get, the more we tend to venerate them just because they're old And then the less we're willing to change them when they need changing, there's another pattern too, which is like the less frequently we change them, the less able we are to do the work of changing them Let's talk about the courts more because you've mentioned them so many times now as part of this sort of informal process of changing the Constitution, really, is how we see it most often interpreted is through the courts and through the Supreme Court I mean, I think it's fair to say that the current Supreme Court has a majority of originalists or originalists leaning justices right now. Your book central argument really stands in contrast to originalism. Can you start by just defining what is originalism and how did it emerge Yeah. In general, it is the idea that the only fair tr just and even democratic way to interpret the Constitution is to defer to the original intent, meaning and especially understanding of the original Constitution and the way then do that is to determine that original intent, meaning, and understanding. and what you need to do is lookook at a specific set of historical documents. The Constitution itself, obbviously, we should look at the Constitution. Madison's notes on the Constitutional Convention The Federalist papers, which are eighty five essays written by proponents of the Constitution, explaining why it is the way it is. The records of the state ratifying conventions. those specific documents can be consulted to understand the meaning of the Constitution. So the idea is just like, okay, what we don't want to do is just decide What do we need now? because that would be judges acting as as lawmakers, that would be judge made law. That is a, I think a I hope a fair description of what originalism is One of the things that originalists claim is that originalism is original That is to say, this is how the Constitution was always meant to be read. This is the method that the framers themselves intended And that just doesn't bear up under historical scrutiny. And there are a lot of reasons for that. But I think that you know most people, certainly including the justices on the Supreme Court, who are originalists or subscribe to originalism, do so perfectly in good faith. Sure, it may also happen to align with their political goals and their policy objectives. Originalism maps on very well to consonservatism in its current form. I take that all in good faith I'm just trying as a historian to show Originalism is an invented mode. It is invented in the nineteen seventies and nineteen eighties. It has a specific political and social history In the seventies eighties pretty recently. It's a fairly recent idea. There are eras in American history where it is popular there to say, we need to defer to the framers It was not a thing, for instance, that Madison said. It's not a thing that would have been possible throughout the nineteenth century. The sources that originalists say are the only sources to use to understand The Constitution were just generally not available to most lawyers or judges in the nineteenth century. So it's an odd viewpoint and has But it also has a lot to do with Conservives attempt to gained back some control over the meaning of the Constitution in an era when it was lost to them. So if you think about going back The civil rightights movement says, you know, where we will gain civil rights, we're not going to be able to do this by amending the Constitution We you know, we can't vote, right? How can we you need an enormous amount of popular support. to change the constitution by way of constitutional amendment. We we don't even have votes in Congress. What we can do is go to the courts. This is what an oppressed minority can do. That's one of the huge reasons to have a court and to have the court have so much authority. Because when fundamental rights are being stepped on by state law or federal law, you can go to the court for a remedy Liberals and civil rights activists are going to the court to change the Constitution They completely abandon Article five amendment. So if you want to say like who abandoned Article five first in our modern era, Re really, it is a civil rights movement and tw century liberals. So when originalists frustrated by each of these opinions, the constitutional change of the nineteen sixties especially The establishment of the right to privacy that is made possible the decriminalization of birth control starting in nineteen sixty five and of abortion in nineteen seventy three with R V. Wade. Conservative legal theorists say, this is just the judges making law This is not how the constit this is the same thing that I'm saying that progressives have said in different areeras. like we don't like who's on the court, We don't like what they're doing. If you want to change the Constitution, like have something like right to an abortion, you should get an amendment passed And so they for a long time are kind of endorsing Article five, but they come up with a different plan because they're also discovering that they can't get an amendment passed So Conservatives are able to defeat the ERA Another big push in the nineteen seventies is for a right to life amendment doesn't succeed they don't have the votes to get through a right to life amendment. So there is a kind of long game that the Conservative legal accademy engages in, which is, you know, we're going to win a new argument about how to interpret the Constitution while we're also trying to take over the court and appoint conservative justices, which you know really starts happening under Reagan in the nineteen eighties So What they're doing is offering a new interpretation of the Constitution, but packaging it as if it's a restoration of the original and exclusively authentic and democratic way of interpreting the Constitution. Yeah. and to ask you to reflect a little bit on today's court and today's politics What are the present day consequences of relying so much on judicial interpretation rather than Democratic amendment processes. I think it lies behind a lot of our Political instability. It's not a sustainable system to kind of go through these pereriods of tremendous concern about the legitimacy of the court from either side. I think it is important to have a legitimate whose legitimacy is understood and appreciated and admired and I don't think we always have that because of the nature of this, but I also think it's the case that If you think about Like when Trump took office and started with doge and firing tens of thousands of federal government workers and dismantling effectively the Department of Education and different parts of the federal government and different agencies You could look back to another effort of the nineteen seventies and eighties to amend the Constitution, which was the balanced budget amendment which, like the ERA, had about eighty percent popular support And Reagan endorsed it when he took office in nineteen eighty two, it passed the Senate like the ERA, it looked like that would become the next amendment. And there was a lot of A lot of concern about federal government spending in the nineteen seventies and eighties. and I'm not sure I think the balanced budget amendment would have been a good thing But if you think about what Trump did when he first took office, that kind of gutting of the federal government It is part of what Americans had been agitating for constitutionally for a long time and not getting And so there is an insurrectionary feel to Trumpism But Insurrection was exactly what amendment was aimed to avoid So if we live in an age that feels like It is dominated by insurrectionary politics I think one reason for that is that we have abandoned the philosophy of amendment, which is meant to be a more peaceable change and one that involves the popular will being heard. You know, I've been thinking about this about Trump's first term in office And how at that time, there was also a lot of sort of pocket constitutions and sort of this as a and I should say as a response to Trump politics as a response to the waving of the flag as a patriotic act. There was sort of this other side of Trump resistance waving their constitutions What does the Constitution even mean in today's politics? Like as a symbol, what do you think it means for people? And what do you think it should mean today Yeah, you know, I've been thinking a lot about two thousand nine because I covered the teea Party movement at the time. Yeah. So I spent a lot of time with people in the tea Party here in Boston, which was just fun because they were the Boston tea party. And they were very into that and it was very fun. But I was thinking about those people, some whom I got to know real well At the time when I, you know, went to watch one of these new Kings parades. marches. And you know, you see people engaging in the same cosplay. They've got their tr cornered hats. their don't tread on me flags Save our Constitution signs And a very sad thing is The Ta Party and the No Kings people to one another and They are using the very same symbols and deeply care about the very same things in a fundamental way And we have completely failed as a civil society to bothoth. celebrate those things that we share and set out at a dinner table All the things we don't share and find a way to have the meal together all the same. One of the things I find very powerful about the idea of amendment is the word itself. It has the same root, obviously is the word mend An amendment term and an idea that embodies not just the idea of peaceful change but change that is ethical and right and moral. in the way that we talk about mending your ways that is like becoming a better person or making amends making up for something some way in which you've wronged someone and I just find that very beautiful. Like I think making amends and meending your ways are commitments, you know, good people make to themselves and to their communities and How would we think about that politically, not just constitutionally, but politically? These are probably my naive sentiments about the possibility of peaceful civil society, we don't have that We have mass shootings with great frequency We have a president who has said he'd doesn't believe his obligation is to uphold the Constitution We have Sool board meetings where people seem like they're about to smack one another in the face over vaccine requirements I don't think we are in any position amending the Constitution. But we're very, very for mending our ways and making amends. Well, Joill, thank you so much for your time. I really enjoyed speaking with you. Thanks a lot. It was a lot of fun. Thankks so much You can find We the People, a History of the US. Constitution by Jill Lapore on Apple Books. We'll include a link to it on our show notes page. And every weekend you can find new episodes of Apple News in Conversation in the Apple News app. Just tap on the audio tab, that's the little headphones at the bottom to find out