Countries amend their constitutions fairly regularly—just not the United States. The last meaningful amendment to the U.S. Constitution was in 1971, when the voting age was lowered to 18. For legal scholars who are originalists, the fact that the Constitution seems fixed in amber is a source of some pride. Jill Lepore strongly disagrees. “The philosophy of amendment—the idea that we can repair, improve, correct, make amends, mend our ways,” she says, “is central to the founding of the United States.”
In her new book, We the People: A History of the U.S. Constitution, Lepore recounts the long history of attempts to amend the Constitution—sometimes by unlikely figures such as prohibitionists and abolitionists—and builds to her larger point that political paralysis today has made it virtually impossible to force the Constitution to evolve alongside a changing population. I spoke with Lepore on the latest episode of FP Live, which is now available on the video box atop this page or on the FP Live podcast. What follows here is a lightly edited and condensed transcript.
Ravi Agrawal: You describe how the U.S. Constitution has one of the lowest amendment rates in the world. Why is that?
Jill Lepore: The U.S. Constitution is one of the most influential constitutions in the word. Many national constitutions are modeled on it, inspired by it, derived from it. It has also one of the highest difficulty rates of any constitutional amendment provision in the world.
When the framers drafted the Constitution in 1787, they meant for amendments to be difficult but not too difficult—sort of a Goldilocks kind of perfection. It turned out that the mechanism was much more difficult to use than they had anticipated.
We tend to forget that the United States was founded at a time when there were no political parties. The framers considered partisanship to be inimical to a republican form of government, that it would be impossible for the republic to survive if there were to be parties.
The mathematical formula they came up with for a double supermajority for passing and ratifying a constitutional amendment turned out to be a much higher bar than they anticipated. From the start, it was just very, it was difficult to amend the U.S. Constitution. In periods of polarization, like the era that we’re in today, it’s effectively impossible.
RA: In global terms, how unusual is that polarization?
JL: Polarization began arising in the United States after about 1968, and then a little bit more steeply after, say, 1972. It actually tracks fairly well with rising income inequality. If you put them both on the same graph, you can see how closely they parallel one another. It becomes much more difficult for a polarized community to address forms of inequality, as political scientists have demonstrated.
That hasn’t stopped American states from amending their state constitutions all the time, at a similar rate to that of constitutions around the world. National constitutions are amended all the time in other countries, and other countries have constitutional conventions pretty often.
That’s not to say frequent amendments or frequent conventions are essentially a good thing—that’s debatable. Some people would argue that America’s prosperity and stability is dependent on the difficulty of amending the Constitution. I don’t happen to agree with that, but that’s a defensible position.
RA: Let’s talk about the government shutdown. Should a constitution have provisions for something like that? The fact that we are so polarized right now makes it seem like a doom loop, of sorts.
JL: If you’re making a list of deformities in American politics right now, the shutdown is on that list. Polarization is on that list, too, but it’s a fairly long list.
Yes, Congress can’t agree on a budget to go forward and keep the government open, but Congress can’t really do anything. Over the last few decades, Congress has ceded much of its authority and power to the executive branch. It’s the impotence and ultimately the uselessness of Congress that explains a lot of the difficulty Americans face as they try to lead their lives—the ability to have health care, keep their jobs, buy homes, build homes. There’s so much that’s just not working in this country because of Congress’s dysfunction.
RA: You assert in your book that the Constitution was never meant to be a fixed document for all time. Does this idea of a fixed document run counter to America as a dynamic, constantly changing, and evolving place?
JL: I argue that the philosophy of amendment—the idea that we can repair, improve, correct, make amends, mend our ways—is central to the founding of the United States and to our system of written constitutionalism.
Written constitutions were new in the late 18th century. The former colonists were quite determined to write down their system of fundamental law because they were so opposed to the absence of one in England, which interfered with their ability to tell Parliament, “What you’re doing is unconstitutional.” (England, of course, still doesn’t have one.)
But they knew that if they were going to write down a constitution, they needed to provide a mechanism to change and update it. Constitutions need to change because circumstances change.
Think about the geographic, technological, and population changes in the United States. Think about our moral revolutions and new ideas. In many cases, those changes have been constitutionalized by way of formal amendment. Think of the Civil War and Reconstruction amendments—the 13th, 14th, and 15th amendments, which ended slavery, guaranteed equal protection of the laws for all people, and guaranteed Black men the right to vote, respectively. Around 750,000 Americans died in the Civil War for those fighting for or against those constitutional changes.
But because amendment has proved so difficult for most of American history, constitutional changes have often happened by way of the Supreme Court. In eras when it’s difficult or impossible to amend the Constitution, the court assumes a far more prominent role in our system of constitutionalism than it was meant to have.
Think about the great public spectacles that are confirmation hearings for Supreme Court justices. The court is meant to be immune to popular opinion, and yet we televise these hearings. People campaign for and against. It’s like the Oscars or something. It’s a whole world of political spectacle. Our justices are celebrities. They write memoirs and children’s books. They go on book tours. We care about their wives. They’re threatened with assassination.
That’s an extraordinary deformity of our constitutional system. The expanded role that the court plays is because that’s the only place you can change the Constitution any longer. And that’s not meant to be the case.
RA: How does the idea of constitutional originalism come up against this need for change?
JL: Beginning with the New Deal, liberals sought constitutional change through the courts. [President Franklin D. Roosevelt] did so with his infamous court-packing plan in the late 1930s. They gave up on constitutional amendments.
It follows that a liberal court issued rulings in the favor of liberals throughout the ’50s, ’60s, and ’70s, like Brown v. Board of Education, which found segregated schooling to be unconstitutional in 1954.
Social and fiscal conservatives in turn argued that the court should not have this power. They thought the justices were amending and legislating from the bench. The whole critique that conservatives made over these decades was the court had exceeded its authority.
Meanwhile, conservatives themselves couldn’t get an amendment ratified. They sought a right-to-life amendment after Roe v. Wade in 1973. They sought an amendment to overturn Brown v. Board of Education. They sought a constitutional convention to overturn the “one man, one vote” rule that came out of the civil rights revolution of the 1960s. They sought a balanced-budget amendment. They just did not have the votes. Amendment no longer really worked.
They realized that in order to pursue their own constitutional objectives, they needed to gain control of the Supreme Court. But if they were going to gain control of this Supreme Court—having argued for decades that the court should not have the power to change the Constitution by way of interpretation—they needed a new justification for constitutional change.
Over the course of the 1970s, they devised “originalism,” a new theory of how to interpret the Constitution, which argued that it could only be interpreted with reference to its original intent. They packaged what was an agenda for constitutional change as constitutional restoration. “Now that we’ve taken over the federal judiciary, we’re not changing the Constitution because we don’t think the court should have that authority. We’re undoing what these liberals did that was wrong. We’re restoring the original meaning of the Constitution.”
It’s a very ingenious political and legal strategy and has been extraordinarily successful.
RA: How do you combat that today? There are so many surveys that show broad public support to amend the Constitution for term limits for members of Congress or age limits for Supreme Court justices. It strikes me that for these to be the will of the people—but simultaneously a no-go—signifies a failure of democracy at some level.
JL: I’ve read legal scholars who say that when amendment is no longer possible, the Constitution loses its legitimacy. In a democracy, the legitimacy of the Constitution does, in fact, depend on the people’s ability to amend it. George Washington always called the amendment provision the “constitutional door” and argued that it should be always left open. It was never really open. Often, it’s locked.
It’s not impossible that amendment could happen. As recently as between 1961 and 1971, the Constitution was amended four times. What tends to happen is a buildup of frustration over judicial supremacy and over the people’s impotence in the face of constitutional change.
Eventually there becomes a kind of significant political force—a kind of ganging up and trying to push open the door. It requires fairly unusual circumstances for such a force to take place. But that is generally how amendments have come. They’ve come in these little storms.
What would have to happen for that to be possible? Many Americans would be terrified of the idea of amending the Constitution. Progressives in particular are very opposed, especially about a constitutional convention, because they fear that the process will be corrupted by the amount of money in politics that would deform a democratic process.
RA: When these amendments do happen, they happen in a rush, often during periods of war. I know you don’t love this question, but are we in a moment of a constitutional crisis? How will we know when we are?
JL: The reason not to participate in this debate is that the language of crisis and emergency has been such an effective political weapon for the Trump administration from the very first day, as he’s bypassed Congress and the courts to seek change that he has no authority to enact.
He’s the most likely person of all to declare a constitutional crisis, and therefore the crisis we’re in is that if the president says it’s constitutional, it is. If he doesn’t, then it isn’t. The place where many legal scholars believe a constitutional crisis—by the narrowest definition—will come upon us is if the Supreme Court rules against Trump, and Trump proceeds anyway.
RA: Let’s take some subscriber questions. One argues that the current administration and the government as a whole is neglecting the Constitution. Would you agree with that?
JL: Absolutely. Project 2025 and the president’s agenda at the beginning of the administration—which is something he’s had years to plan for—was to just do what he wanted to do, Constitution be damned. He’d rather ask forgiveness, not permission—although there won’t be any request for forgiveness forthcoming, to be clear. There’s much celebration of the Constitution as an icon, and American constitutionalism as fetish, but there’s very little fidelity to it.
RA: Another subscriber asks whether the Constitution could be overturned. A lot of other democracies have gone through multiple constitutions, often in moments of turmoil. Is that something you envision could happen in the United States?
JL: Our Constitution will not last forever, but in the short term, I doubt it will be overturned. At an event in Seattle to promote my book, I asked the audience to say “yea” if they were in favor of upholding and defending our Constitution, and “nay” if they thought we should start over. Maybe 10 people out of 500 said “nay.”
Frederick Douglass once said about slavery that the problem is not in the Constitution but in the moral blindness of the American people. That seemed to be the sentiment of the room. The problem is not the Constitution. It’s our inability to revise it.
RA: One lovely phrase you used in your book was “a restless and unruly spirit of amendment.” That feels like such an American feeling. Do you think that’s gone now?
JL: I’m very curious to see what happens in 2026, with the 250th anniversary of the country and our first written Constitution. It might be an occasion for Americans to rethink their relationship with the Constitution and to reconsider their duties and obligations as citizens to one another as a political community.
There was a great deal of hope about that for the bicentennial in 1976, with mixed results. It was a not dissimilar moment to today. It was right after Watergate and Nixon’s resignation, there had been years of terrible political violence, and the United States was in the midst of a terrible recession. Yet there were conversations in those years about what the country is and what Americans wanted to be, some of which I think were really meaningful. I guess I hope for that.
RA: Your next book is called The Rise and Fall of the Artificial State. My sense is there’s a line of continuity between everything we’ve been talking about and this idea that the more that automated processes replace democratic deliberation and human interaction, the polarization that you’re describing as the heart of the problem with the Constitution is only going to get worse.
JL: My next book argues that we should be concerned that the liberal nation-state no longer exists. It has been replaced with what I call the “artificial state,” in which public discourse is owned by multinational corporations and is predominantly populated by robots.
All social media platforms at this point are more bots than humans. We have yielded the town square to robots owned by corporations whose objectives have nothing to do with democracy or constitutionalism, whose CEOs have no interest in what states are or could be, what democracy means or ought to mean, how to preserve it, and why it matters.
People were first warned about an automated state around the 1950s. They talked about a cyber-nation, and there was real concern that depersonalizing and automating communication would be incompatible with civil society, democracy, and human community. The isolation, the loneliness epidemic, and the radicalizing nature of encounters online were all accurately predicted in minute detail in the 1950s and 1960s. There were also warnings that policymakers set aside and continue to set aside to this day.
President [Donald] Trump’s AI Action Plan is a good illustration of the problem of not being able to amend the Constitution. It insists that the new kinds of data centers that are required for artificial intelligence are under no obligation to any environmental provisions whatsoever. In the late 1960s and early 1970s, when Congress passed a raft of environmental legislation, there was also a proposed constitutional amendment for environmental protection. If that had been ratified, Trump couldn’t overturn all these laws passed by Congress.
So there is continuity between my book about the history of constitutionalism and the new book, which is about how we don’t actually have a Constitution in a meaningful way, because the fundamental laws that are governing us are actually algorithms that are written by and owned by corporations.
RA: This conversation has had elements that are quite depressing. Are you at all hopeful about America’s future?
JL: Hope is cheap. I’m determined.