WE THE PEOPLE: A History of the U.S. Constitution, by Jill Lepore
One of President Joe Biden’s last acts in the sepulchral twilight of his presidency was to try but fail to amend the Constitution. On Jan. 17, 2025, Biden declared that the Equal Rights Amendment, or E.R.A., first passed by Congress in 1972, was finally ratified. This would have made it a 28th Amendment on sex equality. Yet because Biden didn’t instruct the archivist of the United States to formally publish the amendment, his announcement fell dead from the bully pulpit.
As the Harvard historian and New Yorker writer Jill Lepore explains in “We the People,” her startling and innovative recasting of Americans’ intermittently successful, but now increasingly futile, efforts to change the country’s basic laws, the struggle over the E.R.A. is just one recent eddy in a long current of discontent with the U.S. Constitution and its forebears.
In 1776, when Abigail Adams famously instructed her husband to “remember the ladies,” John Adams was helping to craft the new nation’s first legal frameworks. He responded to his wife by defending the importance of “our Masculine system.” As Lepore makes clear, many people were quick to challenge that system’s legitimacy. In the late 1700s, before and after the advent of the U.S. Constitution, women, Indigenous peoples and Black Americans convened, debated and voted on their own contrary constitutional visions.
For Lepore, the Constitution’s history cannot be traced simply from its drafting in Philadelphia in 1787 to its ratification by the states in the following three years, nor even through the centuries of formal amendments and judicial interpretation after its passage. While her account touches on these familiar landmarks, it also decenters them, drawing attention instead to the repeated attempts to enlarge what was meant by “People” in the country’s most foundational laws.
To build this narrative history, Lepore draws upon a gargantuan, N.E.H.-funded research effort called the “Amendments Project.” Working with data scientists, political scientists and a team of about a dozen Harvard undergraduates, she has assembled a publicly searchable full-text archive of more than 11,000 constitutional amendments proposed in Congress between 1789 and 2022, more than 9,000 amendment petitions introduced in Congress between 1789 and 1949 and thousands more proposed amendments that never made it to Congress.
Each of her book’s 13 chapters offers a vivid portrait of mostly unfamiliar voices of constitutional demurral from this archive and beyond. These range from Anne Willing Bingham, a Philadelphia socialite who ached to be a part of political life as she hosted the men of the Constitutional Convention in her parlor in the 1780s, to U.S. Senator Birch Bayh, the “stern-jawed” architect of the 25th and 26th amendments who died in 2019 and who was one of the last legislators to take seriously the opportunity and obligation of constitutional change. Most of these voices were animated by what Lepore calls a “restless and unruly” spirit of amendment. They rebuked the Constitution for its ample deficiencies, rather than revering its perfection.
Even the Constitution’s drafters and ratifiers readily conceded their handiwork called for a second or third look. Lepore draws on the Stanford historian Jonathan Gienapp’s brilliant work showing that early Americans were themselves uncertain about what exactly the “Constitution” was — a piece of parchment with specific rules or a larger set of principles about national power and state authority. She also relies on equally pathbreaking scholarship by the Boston College scholar Mary Sarah Bilder on how the Constitution’s main cheerleader, James Madison, doctored his notes at the Philadelphia Convention for ideological ends. The very notion of an “original understanding” of a single constitutional text, Lepore writes, is a non-original afterthought.
This is no less true of the amendments, especially ones long in the making. Take the E.R.A.: Would its ratification have pleased both its erstwhile and modern-day proponents? In November 1977, the Democratic representative Patsy Mink promised the amendment would make women “persons under the Constitution.”
But what does that mean in practice? How would the E.R.A. have shaped debates on gender medicine and the place of trans kids on sports teams? The E.R.A. speaks of equality being “denied or abridged” on “account of sex.” It does not define “equality” or “sex,” in effect punting large discretion to the Supreme Court. Liberals who urged President Biden to affix the E.R.A. to the Constitution might have had a nasty surprise if it had actually become made law.
Despite the often fugitive meanings of proposed amendments, Lepore persuasively contends that we still can learn from the long trail of would-be amenders and constitutionalists. She rightly deepens the bench of con law heroes to include less successful struggles that are nevertheless illuminating. A sharp-eyed and moving chapter on Hawaii’s last queen, Lydia Kamakaeha Liliuokalani, describes how she helped draft an Indigenous constitution in 1892, only to have it replaced with a different document inspired by Jim Crow after the United States overthrew Liliuokalani’s government the following year.
While Lepore’s selection of amenders leans toward those likely to nurture sympathies on the modern left, she also gives space to those, like the Republican activist Phyllis Schlafly, who labored against progress by warning that the E.R.A. would do little more than enshrine “lesbian privileges.” Still, there are blind spots. Lepore mentions only briefly the role of evangelicals in Progressive-era constitutional campaigns against alcohol. These groups helped convince a new generation of Americans that the foundational categories of “federalism” and “commerce” could accommodate changing moral sensibilities — a boon decades later for, among others, the proponents of gay marriage.
The villains of Lepore’s account do not take center stage until her book’s last third. Starting at the beginning of the 20th century, she explains, a kind of “constitutional conservatism” founded on “opposition to constitutional change of any kind” seized the nation. Its modern iteration is the so-called philosophy of originalism to which so many members of the Roberts court notionally subscribe.
Lepore is not the first to call out the spurious logic and free-floating, pick-and-mix history that allows originalists to reliably reach results favored by their Republican Party allies. But she also tenders a deeper criticism: Constitutional conservatism has frozen the popular constitutional imagination. Beguiled by originalism, more and more people take the Constitution as cast in amber; they have forgotten their intrinsic and inalienable right to amend.
As Lepore notes, the last amendment to the Constitution — on legislator salaries — passed 33 years ago. The period between the passage of the 12th amendment — on presidential elections — and the 13th — on slavery and involuntary servitude — was nearly twice as long, but it only ended, Lepore writes, after Americans’ will to amend, the “sleeping giant,” was roused again by the deadliest war on the nation’s soil.
Left hanging in the air at the end of this rewarding book is a dark question: At what cost have we abandoned amendment? Textual change has long been seen as an alternative to political violence. So what happens when a nation rived by polarization, seemingly incapable of addressing its pathological fiscal situation and profoundly unjust legacies of oppression, cannot fix itself by constitutional reform? Does it abide in suffering? Or does it explode?
WE THE PEOPLE: A History of the U.S. Constitution | By Jill Lepore | Liveright | 702 pp. | $39.99
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