For The Atlantic’s October cover story, “How Originalism Killed the Constitution,” Jill Lepore argues that the Constitution is not a “dead” document as originalists contend—but rather, that the Founders intended for it to change and be amended over time, as the document itself makes plain. Failing to amend the Constitution as needed and desired is a lost opportunity and sets a dangerous course. Originalism’s dominance, Lepore explains, is not really an attempt to return to an “original meaning” intended by the Founders. Instead, it is a way to effect constitutional change while pretending otherwise. Lepore’s cover story is adapted from her forthcoming book, We the People: A History of the U.S. Constitution (publishing September 16).
Lepore writes: “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. Amendment is so essential to the American constitutional tradition—so methodical and so entirely a conception of endurance through adaptation—that it can best be described as a philosophy. It is, at this point, a philosophy all but forgotten.”
Lepore continues: “The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media.”
The U.S. Constitution has not been meaningfully amended since 1971, just as political parties began to polarize. That same year also marked a turning point in the history of American constitutionalism, Lepore writes, when the idea of originalism was put forward by the distinguished legal scholar Robert Bork. Justice Antonin Scalia brought originalism to the Supreme Court, “trapping the Constitution in a wildly distorted account of the American past at a time when ordinary Americans found their ability to amend and repair a constitution to which they had supposedly given their consent entirely thwarted.”
Lepore writes that, nearly a decade after Scalia’s death, originalism lives on in Trump’s appointment of three originalist justices (Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett) to the high court. But it is a strange sort of originalism, one that tailors “original intent” to ideological ends: “In a series of crucial cases, the Trump-era Court cited history if the history supported a preferred outcome; if history did not support that outcome, the Court simply ignored the past. As the liberal justice Sonia Sotomayor observed in a scorching dissent in the presidential-immunity case Trump v. United States, ‘It seems history matters to this Court only when it is convenient.’” Lepore continues: “The Constitution is dead! Scalia liked to say. To many Americans in the early decades of the 21st century, it has begun to seem that way.”
Jill Lepore’s “How Originalism Killed the Constitution” was published today at TheAtlantic.com. Please reach out with any questions or requests.
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The post The Atlantic’s October Cover Story: Jill Lepore on How the Radical Legal Philosophy of Originalism Has Undermined the Process of Constitutional Evolution appeared first on The Atlantic.
