We the People

We the People, Jill Lepore. Liveright (ISBN: 9781631496080) 2025.

Summary: A history of the Constitution, focusing on the amendments and how difficult it has been to amend the constitution.

Do you know what amendment took the longest time to ratify? It was the most recent, the 27th Amendment, concerning congressional pay, which took 203 years to ratify, finally in 1992. Do you know the last amendment to be proposed and ratified in modern times? It was the 26th Amendment, which was ratified in 1971, giving eighteen-year-olds the right to vote, just in time for me to vote when I turned 18! Depending on how you count, it has been 34 or 55 years since the last amendment proposed was ratified. It’s not for lack of trying, as historian Jill Lepore observes in this book. Notably the Equal Rights Amendment, broadly favored by Americans never was ratified by enough states. Although a majority would like to see this, no amendment has passed out of Congress to abolish the electoral college.

We the People is a constitutional history which focuses the history of constitutional amendments of which there have been only twenty-seven in our 250 year history. But why so few? It all comes down to Article V of the constitution. First, two thirds of both houses of congress must approve an amendment. Then either legislatures or special conventions of three-fourths of the states must ratify the amendment.

Lepore observes that amendments tend to come in clusters. The first twelve were between 1791 (the Bill of Rights, numbers One to Ten) and 1804. The next amendments, Thirteen to Fifteen, followed the Civil War, between 1865 and 1870. Then Sixteen to Twenty-One, which included Prohibition and its repeal, income tax, and women’s suffrage dated between 1913 and 1933. Finally, the most recent group came between 1951 and 1971, Amendments Twenty-Two to Twenty-Six, addressing presidential term limits, DC electors, eliminating poll taxes, presidential succession, and voting for 18-year-olds. Then there was that oddball, the 27th, on congressional pay raises, resurrected from 1789 and finally ratified in 1992.

Lepore traces the periods of amendment and the intervening periods of quiescence. Of particular interest is the growing significance of the Supreme Court, at various times treating the constitution as a living document, adapting it to changing cultural needs. Then at other times, especially more recently, originalism treats the constitution as “dead, dead, dead” in Justice Scalia’s words. All the court may do is interpret and apply it original meaning. Everything else must be addressed by Article V.

But how are amendments possible in such a polarized congress and society? And what happens when neither amendments nor court interpretations address emerging societal realities? Lepore expresses concern about the possibilities of unrest as well as moves away from constitutional democratic governance. She sees neither an activist or originalist court as the answer but a return to a more robust embrace of amendments as the needed “safety valve” that properly allows for constitutional rule that grows with the needs of the country.

She concludes:

“No constitution can be kept forever, like a butterfly under glass, tacked down with pins. In danger of wilting. To constitute is to become or establish; to amend is to mend, correct, repair, and improve. Americans might learn again to amend, or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth” (p. 581).

Lepore has done a tremendous work of historiography. She also has left us with good questions. But I have a hard time seeing a way forward in our current political context and that concerns me. Attempting to draft a new constitution scares me more, the implication of “invent a new instrument.” Some of the basic premises about human nature and political philosophy that the original drafters shared are no longer shared. I cannot foresee anything but chaos ensuing. It seems to me that a critical beginning is a renewed sense of shared congressional vision, leadership, and collaboration. But will we awaken to that necessity?