Jill Lepore cuts corners in her case against originalism.

J ill Lepore, writing in The Atlantic, advances the bold thesis that originalism “killed the Constitution” by crippling the amendment process. She cuts corners to make her case.

One: She opens by presenting Justice Antonin Scalia as though he were hostile or dismissive toward the amendment process:

Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it. “The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” This is not true. One of the Constitution’s founding purposes was to prevent change. But 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.

Scalia’s sentence, in isolation, is both incomplete and hyperbolic. But come on, it’s part of a speech. And way before he gets to “the whole purpose” comment, he says this of the Constitution: “What it meant when it was adopted it means today, and its meaning doesn’t change just because we think that meaning is no longer adequate to our times. If it’s inadequate, we can amend it. That’s why there’s an amendment provision.” Societies can change the basic law, he is saying, but not by crafty reinterpretation by government officials and not by mere simple majorities.

Two: Lepore makes the familiar, and obviously fallacious, argument that because the term “originalism” is modern so is the thing itself:

The Constitution has not been meaningfully amended since 1971, right when the political parties began to polarize. Polarization would ultimately make the double-supermajority requirements for amending the Constitution impossible to meet. Tellingly, 1971 marked another turning point in the history of American constitutionalism. That year, a method of constitutional interpretation that became known as originalism was put forward by a distinguished legal scholar, the Yale law professor Robert Bork. The word originalism didn’t enter the English language until 1980, and it had virtually no currency before 1987.

The idea seems to have had some currency with James Madison! Here he is, writing in 1824:

I entirely concur in the propriety of resorting to the sense in which the Constitution was accepted and ratified by the nation. In that sense alone it is the legitimate Constitution. And if that be not the guide in expounding it, there can be no security for a consistent and stable, more than for a faithful exercise of its powers.

Three: Lepore writes about conservatives’ supposed turn against constitutional amendments in the 1980s:

It wasn’t voters who were opposed to amendments. The hurdle was Congress — and, more and more, conservatives. In 1984, James McClellan, who had left his position as a staff member on the Senate Judiciary Committee to become the president of a newly formed Center for Judicial Studies, 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.”

The quote itself suggests only skepticism toward amendments directed at correcting Supreme Court decisions — not skepticism toward amendments per se. McClellan appears to have favored a Balanced Budget Amendment. Conservatives have continued to push for that amendment and others in the decades since 1984.

Four: There is a more obvious link between non-originalism and the decline of constitutional amendments than between originalism and that decline. Progressives did not need to amend the Constitution formally when they had judicial allies willing to do it informally: a point Lepore raises only obliquely and euphemistically. And once they saw what creative judges could do with constitutional language, conservatives became more skeptical of some proposed amendments (notably, the Equal Rights Amendment) — a point Lepore does not raise at all.

But perhaps we should not judge Lepore too harshly for failing to mention counterevidence and ignoring nuances. The Atlantic gave her only 10,000-some words to make her case, and maybe the new book it excerpted does a better job.