Jill Lepore refutes her own argument against originalism.
H arvard law and history professor Jill Lepore’s cover story in The Atlantic promises to tell us “How Originalism Killed the Constitution: A radical legal philosophy has undermined the process of constitutional evolution.” It’s an excerpt from Lepore’s new book, and it argues that originalism was the reason that Americans no longer amend their federal Constitution.
It should not surprise readers of the anti-originalist genre that Lepore’s case is not only unpersuasive but has the cause-and-effect chain completely backward. Indeed, in places she acknowledges as much. Her account is also riddled with some hilarious misreadings of constitutional history.
The People’s Constitution Is the People’s to Change
The power of the people to amend the Constitution through the Article V amendment process has long been one of the central arguments for originalism. Originalists argue that they are bound to follow the text as it was written and understood at the time it was ratified by the people, because the Constitution itself assigns to the people — and not to judges — the sole legitimate power to amend it.
No less a figure than George Washington — not only our first president but also president of the Constitutional Convention — warned in his Farewell Address nine years later against changing the meaning of the Constitution without the people’s consent through the amendment process:
The basis of our political systems is the right of the people to make and to alter their constitutions of government. But the Constitution which at any time exists, till changed by an explicit and authentic act of the whole people, is sacredly obligatory upon all. . . . Towards the preservation of your government . . . resist with care the spirit of innovation upon its principles.
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
That’s the originalist case in a nutshell. It reflected the influence on Washington’s thinking of Alexander Hamilton (likely the first drafter of that section of the Farewell Address), who wrote in Federalist No. 78 that “until the people have, by some solemn and authoritative act, annulled or changed the established form, it is binding upon themselves collectively, as well as individually; and no presumption, or even knowledge, of their sentiments, can warrant their representatives in a departure from it, prior to such an act.”
As Chief Justice John Marshall would go on to argue, the fact that amendment was hard was an argument against excessive rigidity in construing the powers of the political branches. You can’t always ask the people for immediate clarification. Moreover, the Supreme Court sometimes concludes that some question of the allocation of powers that wasn’t quite explicitly resolved by the text has become settled over time by centuries of unbroken practice by the political system. Nonetheless, Marshall — an ardent Federalist and Washington biographer who venerated the Father of his Country — agreed with Washington’s basic view of constitutional legitimacy, writing in Marbury v. Madison:
That the people have an original right to establish, for their future government, such principles as, in their opinion, shall most conduce to their own happiness is the basis on which the whole American fabric has been erected. The exercise of this original right is a very great exertion; nor can it, nor ought it, to be frequently repeated. The principles, therefore, so established, are deemed fundamental. And as the authority from which they proceed is supreme, and can seldom act, they are designed to be permanent.
Lepore doesn’t even attempt to quarrel with this reasoning. Nor, for that matter, does she even offer a theory of how the public arguments of originalists — which by today would comprise enough volumes to fill the Library of Alexandria several times over — is critical of the amendment process or has in any way turned the public away from amendments. Her argument begins instead with the post hoc ergo propter hoc reasoning that originalism was born in 1971 and (with the exception of a 1789-drafted amendment ratified belatedly in 1992) we haven’t had a successful constitutional amendment since then.
I was born in 1971, too, and I’m pretty sure it’s not my fault.
Beyond just asserting her conclusion as fact, about the closest Lepore can come to a theory of how or why originalism killed the amendment process is to argue that pro-lifers and gun rights activists got interested in the theory because it seemed a more promising way of attaining their policy ends (hardly a novel phenomenon) and to quote one 1984 memo from conservative legal activist James McClellan that “urged conservatives to ‘kick the habit’ of Article V. ‘There is something fundamentally wrong with our system if we are driven to amend the Constitution so as to restore its original meaning,’ McClellan wrote. ‘We should resist efforts to add amendments to our fundamental law to correct misinterpretations rendered by the Supreme Court.’”
But of course, McClellan was right that it should not be necessary to amend the Constitution in order to undo judicial decisions that rewrote it without an amendment. What was done by judicial fiat can be undone the same way. And Lepore’s own account of this history concedes this.
Who Really Killed the Amendment Process
The real story of what happened to the federal amendment process is right there in plain sight in Lepore’s own words. To start with, periods of inactivity on the amendment front are not new: “No amendments were ratified in the 61 years from 1804 to 1865,” and “no amendments were ratified in the 43 years from 1870 to 1913.” With some creative license, Lepore connects the periodic bursts of amendment to eras of war (such as tying two amendments in 1913 to the First World War, which had yet to begin). Why, she asks, is it that “the Second World War did not awaken Article V?” Her answer: “because mid-century liberals abandoned amendment in favor of the exercise of executive and judicial power.”
We have, Lepore writes, “a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.” The downside? “The pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics.”
In other words: It was the availability of anti-originalist rewriting of the Constitution that put liberals off the amendment process, destroyed public faith in Article V and democracy in general, and accelerated polarization — and all of this was well underway before the post-1971 originalists arrived on the scene. Lepore makes Antonin Scalia the main character of her story, but even she concedes that when Scalia was nominated to the Court in 1986, the amendment “process was by then no more than a chimera.” Maybe if it was already dead, Scalia didn’t kill it?
Lepore quarrels with a 1996 Scalia speech in which he said that “the whole purpose of the Constitution is to prevent a future society from doing what it wants to do.” Lepore rejoins: “This is not true. . . . Another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection—the only way to change the fundamentals of government without recourse to rebellion.” She doesn’t quote Scalia’s entirely characteristic endorsement of the amendment process in that very speech: “If it’s inadequate, we can amend it. That’s why there’s an amendment provision.” He cited as his example “the 19th amendment, adopted in 1920. That is the amendment which guaranteed women the right to vote. As you know, there was a national campaign of ‘suffragettes’ to get this constitutional amendment adopted, a very big deal to get a constitutional amendment adopted. Why? Why did they go through all that trouble? If people then thought the way people think now, there would have been no need.”
The Constitution “was intended to be amended,” Lepore agrees in describing its 1987 bicentennial, “but it was no longer amendable. Instead of producing constitutional amendments, liberals achieved landmark legislative gains and rights-protecting Court decisions whose importance was matched only by their reversibility.” Yes, exactly. And they did that by means of those decisions, to which originalism was a reaction.
Lepore moans that “the abandonment of amendment has meant that constitutional history since the 1970s has turned on presidential nominations to the Supreme Court, placing pressure on that institution that it has proved nearly unable to bear. Presidential elections no longer involved campaigns to amend the Constitution. They involved campaigns to appoint justices. Nomination hearings have become spectacles.” Why does that sound so familiar? Because it is exactly the argument Scalia made in 1992 about the impact of Roe v. Wade:
Roe’s mandate for abortion on demand destroyed the compromises of the past, rendered compromise impossible for the future, and required the entire issue to be resolved uniformly, at the national level. . . . Roe fanned into life an issue that has inflamed our national politics in general, and has obscured with its smoke the selection of Justices to this Court in particular, ever since. . . . As long as this Court thought (and the people thought) that we Justices were doing essentially lawyers’ work up here—reading text and discerning our society’s traditional understanding of that text—the public pretty much left us alone. Texts and traditions are facts to study, not convictions to demonstrate about. . . .
If [the Court is to decide questions of liberty by its own value judgments], then the people should demonstrate, to protest that we do not implement their values instead of ours. Not only that, but confirmation hearings for new Justices should deteriorate into question and answer sessions in which Senators go through a list of their constituents’ most favored and most disfavored alleged constitutional rights, and seek the nominee’s commitment to support or oppose them. Value judgments, after all, should be voted on, not dictated; and if our Constitution has somehow accidently committed them to the Supreme Court, at least we can have a sort of plebiscite each time a new nominee to that body is put forward. . . .
By foreclosing all democratic outlet for the deep passions this issue arouses, by banishing the issue from the political forum that gives all participants, even the losers, the satisfaction of a fair hearing and an honest fight, by continuing the imposition of a rigid national rule instead of allowing for regional differences, the Court merely prolongs and intensifies the anguish.
If it’s silly to blame Scalia for a phenomenon simply because he diagnosed it, it is doubly silly to do so when Lepore herself agrees with his diagnosis.
Federal and State
Lepore also compares the relative paucity of constitutional amendments to the frequency with which states have amended their constitutions. But this would have been encouraging to the Framers, and it reflects the differing role of states and the federal government in our system. States are supposed to do most of the governing: They’re closer to the people, and they’re more homogenous than the country as a whole. States are typically more small-d democratic: Today, they all directly elect their governors and have proportionally representative, directly elected state senates. Many have directly elected or non-life-tenured supreme courts. Several allow constitutional amendments by simple majority vote in a single referendum. The federal government was designed to function in domestic lawmaking only by supermajority, partly because this would require disparate states to compromise, but partly also because the default in the system is that when the federal government can’t act, the states will remain the primary form of government.
Presidents and Justices
Finally, Lepore claims that the Reagan-era practice of “screening judges” to try to get a Court that would overturn Roe v. Wade “was, at the time, both novel and controversial.” This is preposterously ahistorical, especially with regard to the Supreme Court. Presidents have often used their nominations to bend the Court in a desired direction, and done so by picking administration loyalists and/or people with records sympathetic to the president’s aims. George Washington carefully vetted his choices to pick justices who had been involved in writing or ratifying the Constitution, only late in his term (after having appointed the entire Court) picking a justice who had been an anti-Federalist in 1787–88. Andrew Jackson wanted justices who backed his initiatives, especially against the Second Bank of the United States. Abraham Lincoln wanted men who would support his war powers and move the Court away from Dred Scott. Ulysses S. Grant aimed, successfully, to use his appointment power to get the Court to reverse course in the Legal Tender Cases. Franklin D. Roosevelt loaded the Court with New Dealers, conspicuously drawing from his Justice Department, from pro–New Deal academics, and from New Dealers in Congress.
Lepore doesn’t like originalism. But her indictment of it should be amended.