How To Read the Constitution Like a Scholar

Jill Lepore, We the People: A History of the U.S. Constitution

When the militants behind the American Revolution wanted to build a government, the idea of a “constitution” already existed, but was mainly abstract. European countries like France and Spain derived constitutions from scattered law, tradition, and judicial practice; to this day, the British constitution remains unwritten, and high court proceedings often include debates about what, exactly, the constitution is. America’s Founders pioneered another idea: writing the constitution down.

Harvard historian Jill Lepore has written about the social and political forces which shape American politics. With this volume, she focuses specifically on the forces which shape our Constitution: not only the text itself, but legal interpretations, public debates, and amendment process. Though Lepore doesn’t say it, she tacitly acknowledges that America’s constitution far exceeds the document, comprising also the institutions and handshake conventions created to make the document enforceable.

Americans once loved the constitutional process, Lepore writes. Not only the national, but the local. Ratification of the current Constitution was the subject of lengthy, sometimes combative public discussions, and the original text as written satisfied nobody, though it became the text Americans could live with. Meanwhile, for over two centuries, state constitutional conventions happened, on average, once every eighteen months, and state governments almost aggressively amended themselves.

Then we stopped. America hasn’t seen a state constitutional convention since 1986 and, although the states ratified the 27^th Amendment in 1992, it was a procedural asterisk; the federal Constitution hasn’t been meaningfully amended since 1971. Certainly we can’t say that the need for developing institutions has dwindled; if anything, events of the 2010s and 2020s revealed how fatally outdated and unresponsive our Constitution has begun. What caused the change?

Lepore answers that question through the debates which surrounded the original Constitution and its amendments, successful and unsuccessful. The Founders, mostly Enlightenment rationalists, believed government could operate smoothly as a machine if removed from frail human hands, and when the original Articles of Confederation proved unsuccessful, the 1787 Convention proceeded with the attitude of social engineers. Lepore compares the 1787 Convention with concurrent developments in clockwork technology.

Dr. Jill Lepore

Almost immediately, though, Americans began demanding amendments. The original Constitution was almost entirely procedural, and omitted the moral imperatives which drove the Revolution and Shays’ Rebellion. The first Congress wanted to shepherd through a Bill of Rights, but Article V didn’t even include instructions for “correct” amendments: should changes be incorporated into the original text, or tacked on as appendices? Congress chose the latter, after some contention.

As written, the amendment process proved cumbersome. Savvy news and history readers already know this. But Lepore delves into procedural hurdles that well-meaning lawmakers, Left and Right, have faced, and how they overcame them. Sadly, one tool for overcoming intransigence is, apparently, war. After the first twelve amendments ironed out procedural and rights quirks, subsequent amendments have mostly happened in clusters surrounding the Civil War, World War I, and Vietnam.

Despite the Founders’ vision, the state machine didn’t prove immune to human influence. Lepore describes how intervening events, like the Civil War or the annexation of Hawaii, changed the Constitution’s meaning. The text didn’t vary, except where amended, but as circumstances made Americans reevaluate themselves, we also reevaluated our unifying text. America’s political leaders changed their constitutional reading to allow, say, annexing Hawaii whole, which changed our shared identity.

Likewise, powerful people—mostly unelected—changed the Constitution by changing relevant practice. Supreme Court cases like Plessy and Roe read certain interpretations into procedure; Brown and Dobbs read them back out. Philosophies like “Originalism,” which arose in tandem with changing opinions about abortion, created interpretive lenses which courts used to create or abolish rights, until they didn’t. The text hasn’t changed in 55 years, but the Constitution has changed wildly.

Reading this book, I recall constitutional scholar Mary Anne Franks, who compared constitutional adherence to religious fundamentalism. If the Constitution has become holy writ, then Lepore’s telling reads like a history of hermeneutics, the processes of scriptural interpretation. Just as Christians have read and reinterpreted the Bible considering surrounding cultural influences, Americans have reinterpreted the Constitution to reflect the conditions in which our country lives.

This religious comparison isn’t flippant. Late in the book, Lepore writes that nations treat new constitutions as tools, but old constitutions, not just America’s, become venerated. The American Constitution was once esteemed so lightly that the original sheepskin parchment got misplaced; now it’s a sacred relic of state sacrament, hardened against nuclear attack. If Americanism is a religion, then changing hermeneutics deserves serious, almost monastic study.