Chapter 1: What is the main topic discussed in this episode?
This is the 99% Invisible Breakdown of the Constitution. I'm Roman Mars.
And I'm Elizabeth Jo.
Today, we are discussing Article 5, which lays out the ways to amend the Constitution. And from the beginning of this series, we knew there was only one person we wanted to have for this episode, historian and writer Jill Lepore. Jill is an American history professor at Harvard, a staff writer at The New Yorker, and author of one of my favorite books, These Truths, A History of the United States.
This fall, she published a new book, We the People, A History of the U.S. Constitution. And Jill tells the history of the Constitution through amendments, ones that succeeded and ones that failed. Article 5 is just one long sentence, one long, boring sentence. Here it is.
by the Congress, provided that no amendment shall be made prior to the year 1808 shall in any manner affect the first and fourth clauses in the ninth section of the first article, and that no state without its consent shall be deprived of its equal suffrage in the Senate.
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Chapter 2: What is Article 5 and why is it significant?
In her book, Jill Lepore argues that the Constitution is designed. It is truly meant to be amended. And before we go any further, it's important to define what a constitutional amendment really is, because the definition is broader than what most people probably think.
The word amendment just keeps taking on all these adjectives. So legal scholars like to talk about formal Article 5 amendments.
Chapter 3: Who is Jill Lepore and what is her thesis about the Constitution?
And a formal Article 5 amendment is a constitutional amendment that is properly adopted and ratified into the U.S. Constitution through the methods that are described in Article 5. But because an amendment just really means a change or a revision or a correction or a repair,
And because the Constitution is changing and being corrected, repaired, and altered all the time, amendment happens in other ways. And so then legal scholars come up with other adjectives to describe other kinds of amending the Constitution. Informal amendment is a common way of describing a kind of creeping change that comes about Almost by habit or practice.
And then there are amendments that are often described as de facto amendments that are really judicial decisions that have the consequence of changing how we understand a provision of the Constitution. We could make more piles than that. I would say those might be the three main ones.
Yeah.
And just importantly, that when you say that, you mean for those listeners who might not understand when the Supreme Court, for instance, I think you're saying makes a new interpretation of the Constitution. We can consider that an amendment as well, even though the Supreme Court may not say that explicitly.
Yeah. So no matter what you're. political preferences, people don't like to admit that the Supreme Court is actually often amending the Constitution. In my observation, you may have a different view of this because technically the Supreme Court's not supposed to be amending the Constitution.
So there's a kind of nudge, nudge, wink, wink when the Supreme Court says, oh, there is such a thing as presidential immunity. In my mind, that's an amendment to the Constitution. That's not in the Constitution. They have invented and devised that.
Or when the Supreme Court said, you know, in Griswold versus Connecticut in 1965, there's a right to privacy that extends to birth control for married couples. You know, conservatives said that's not in the Constitution. That's an amendment to the Constitution.
Usually when you say something, the court is amending the Constitution, you are denying the legitimacy of the change rather than accepting the legitimacy of the change. Right, right.
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Chapter 4: What challenges exist in amending the Constitution today?
you know, they have to have a convention to write a new constitution is because the other thing is unamendable. So this is where a long explanation for why there exists Article 5. It was completely non-controversial at the convention in 1787. Everyone understood this thing had to be amendable. No one was going to ratify it if it couldn't be changed. So that's where it comes from. But the
Provision itself is, it's kind of a pig's breakfast. Like it's got all these compromises in it. And they just sort of guessed about what might be the right bar. Like they have this Goldilocks problem, right? Like they're writing constitution. They want it to be amendable. But they don't want it to be impossible to amend it.
It needs to be amendable, but they don't want it to be too easy to amend it because they want the thing to be sort of stable and, you know, get its legs before people start knocking it over. So they come up with this double supermajority provision, right? The two thirds of both houses of Congress have to pass it. Then it goes to the states and three quarters of the states have to ratify it.
And I don't know, that doesn't seem crazy from the vantage of 1787, but it turns out very quickly, it's much harder to achieve that double supermajority than they anticipated.
And in fact, there are two different routes, actually, right? So maybe you could talk to us about that and which one became the de facto route.
Yeah, I mean, they have, they don't, they don't give this enough attention is one thing to say. Like, remember, like, they don't even get to this question. It's, it's, They've made so many compromises and there's like so much blood on the floor by the time they get to Article 5. People are like, all right, yeah, so it's going to be amendable.
But then there's a little bit of discussion of like, well, how would that work? And so there's a few different plans and you could sort of see they're just like, all right, whatever, put it all in there. Like, OK, so you can actually... States can petition Congress to amend the Constitution, and that's a way to introduce a possible amendment. States can also hold a convention.
There can be a second constitutional convention. And if Congress passes an amendment and goes to the states for ratification, it can be ratified in a number of ways.
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Chapter 5: What are the different types of constitutional amendments?
Like the state legislature can just vote on it or the state could decide to hold a ratifying convention. And some of these things have been done and some of them have not been done. We've never had a second constitutional convention. It just failed as an idea.
It didn't work.
Yeah.
Yeah, yeah. I mean, immediately after the Constitution is sent to the states for ratification in September of 1787... Imagine that there was a new constitution and it went to the states today. The first thing that would happen would be California would be like, well, we want this and this and this and it. And Texas would say, we know we want this, this and this.
And Michigan would say, we like it just as it is. But Minnesota would be like, we just have this one thing you want to add. And New York would be like, we have three things in here. We will not sign this unless these are out. Immediately what happened, and there's only 13 states, but they all were like, We have some requests.
And so it was immediately a political problem of ratification was the possibility of amendment because a bunch of states said, well, like New Hampshire was like, we're not even going to vote because we can't even. But Massachusetts and Maryland were like, we'll ratify it only if you promise to add these 13 amendments that we're going to officially send to you.
So then all the states were like, oh, you mean we can we can actually add amendments? And the Federalists kept going out there with like their whole spin on the thing was. ratify first, amend later. Like they're like, you picture the cheerleader, ratify first, amend later. Like this is their chant, ratify first, amend later. Like we just got to ratify the thing.
But two states say we actually need a second constitutional convention because there've been over 200 amendments proposed in the state ratifying convention. So finally the federalists win the argument and they promise, they promise, they promise like Cross my heart and hope to die. The first thing we'll do, if you guys agree to ratify this, is we will amend it in Congress.
We'll hold a special session. We'll look at all the amendments that were proposed in the states and we'll we'll send amendments back to the states. So that's and that's the only reason we even have this Constitution, because eventually the states are like, OK, that seems fine.
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Chapter 6: How did the framers of the Constitution envision the amendment process?
Because, you know, there wasn't a lot of precedent of longstanding constitutions. And when they're not amendable, I don't know, maybe the one before this was longest lasting was 20 years, you know, like outside, you know, like, you know. And so how did they treat the desirability of not just the necessity, but the desirability of amending the Constitution?
So they talked about Parliament's behavior during the years before the American Revolution as having been unconstitutional. So England does not have a written constitution, but that doesn't bar the Sons of Liberty and the Resistance from saying all the time, you know, when they say, you know, we oppose the Sugar Act, the Stamp Act, the Townsend Act, the Tea Act, the Chorus of Acts.
They said because they're unconstitutional, because of no taxation without representation. So they had no remedy for being faced with tyrannical, unconstitutional acts on the part of their government, except revolution. And the Revolutionary War is so distant in time, and we have so little sense of the kind of suffering that 18th century warfare meant. But
There are types of misery that are just unfathomable to us in terms of the daily suffering of people in wartime. Modern war is more lethal, for sure. The machinery of modern war is more lethal. But people are living in such a general state of deprivation with essentially zero medical care and hardly any food to begin with.
These are people who, by the time you get to 1787, you know, they're only a few years from the Peace of Paris. They're not that far from Yorktown. Everybody has lost someone, seen the tremendous amount of suffering that that Revolutionary War led to.
The idea that the only way you could successfully deal with a government that was acting unconstitutionally would be by bloody violent revolution was horror, a terror to them. And they were very self-conscious and indeed quite self-congratulatory about the method of... what they would have said, a peaceful revolution.
Amendment was the great, the genius idea of the American Constitution in many ways. They, you know, the framers themselves said this all the time because they had invented a method by which the people could peacefully change fundamental elements of their government. Whereas in all previous time, The only method was violence and insurrection.
And so they said, you know, we are preventing an insurrectionary politics from befalling our republic by introducing this peaceful provision. So that's another reason, like, I don't know, that I really ā I'm such an ameliorist. I'm just not a revolutionary. I'm a reformer.
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Chapter 7: Who was Birch Bayh and what was his impact on constitutional amendments?
I like reform. Yeah. Like the idea that like you could just make things better by saying, hey, bunch of us got together. We disagree about a lot of shit, but we agree about this little thing. Can we do that, please? Like that. I like that a lot.
That's kind of how I roll. Well, but even the amendment process itself, I mean, maybe you could talk about these two polar opposites in your book. One is like, let's have an amendment. An example would be like right after Brown versus Board in 1954. Let's have an amendment to make it easier to change the Constitution.
And at the other end of the scale, you have the Corwin Amendment right before the Civil War. Let's make sure that we keep slavery and we make sure that that can never, ever be amended ever again. I think the technical term is entrenchment or something like that. And these happen in our history where we have this anxiety. Should we make it a lot easier or should we make it impossible?
I wonder what your thoughts are on that.
Yeah. And yet neither of those efforts has ever succeeded.
Mm-hmm.
If you go into the amendments project is this database that my students and I put together. And if you could search by topic and the topic amend will pull up results that are amendments that try to make ā that revise Article 5. It's like a meta-amendment. Or more difficult to amend. I would say ā You know, it was maybe 2020.
The National Constitution Center had three different teams of constitutional scholars write a kind of revised constitution. They had conservatives, progressives and libertarians. And they they were very interesting things that they came up with. But they all changed Article five. Yeah.
They all made it easier to amend the Constitution, which was interesting that that was a thing that they recognized as a shared concern. But yeah, because Article 5 doesn't work anymore, you can't revise Article 5.
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Chapter 8: What future possibilities exist for constitutional amendments?
So you already have that. And then the next kind of big crisis is in the 1830s when South Carolina starts threatening secession over the tariff. There's a whole kind of... By the 1830s... Is it really that there's concern that the Article 5 doesn't work? It's more like it's become clear by the 1830s that there are different understandings of what the Constitution even is.
So that's when John C. Calhoun says, you know... If we don't like a law passed by Congress, we don't have to obey it. Right. We can just nullify it. Because we're not really... The federal government isn't sovereign. Only the states are sovereign. And, like, they're just, like, light recommendations that Congress will offer us. So, like, it's just a league. We are a confederacy.
We are not a union. Right? Like, you already have that. So, I'm just musing now, like, over, like, when does... But like as a historian, it's clear that why Article 5 is kind of a dead letter before the Civil War is the only thing that really matters that people really care about constitutionally is slavery. And that cannot be addressed by Article 5.
Not because the slave trade thing that is prohibited from Article 5 revision until 1808, but because there's just no way for three quarters of the states to agree on slavery. Like they barely agreed on it in 1787. So it's like you can't get the engine to turn over because the key, like it's all about slavery.
Yeah, yeah, yeah. But what's remarkable then, of course, are the Reconstruction Amendments. They happen all at once, seemingly, historically, right? They happen very quickly. And that seems like a real turning point, right? And maybe you could help us understand, like, why do moments like that happen in the Article V story? That's a big success, right?
Yeah. So the 13th Amendment, which is 1865, the 14th Amendment is 1868, and the 15th is 1870. Those are the dates of their ratification. So what the South said at the time, and what many Southerners, certainly Southern segregationists, said for decades was, is that, in fact, those are unconstitutional constitutional amendments because the South was not in Congress.
So the 39th Congress that comes up with the 14th Amendment... it's only the union states that are there, or then there are elected delegates, representatives from the South. But since anyone who served in the Confederate military is disqualified from holding office, like the South would say those were carpetbaggers.
And then in order to get back into the union and recognized as a state in the union country, the former Confederate states are required to ratify the 14th Amendment. So they would say like, yeah, well... we didn't vote for it in Congress and we ratified it like at the point of a gun.
So like I should have led with, yes, the Civil War and Reconstruction, the 13th, 14th, 15th Amendments are amazing and they reconstitute the country and they are generally thought of by historians as essentially a second constitutional convention, especially the 39th Congress is essentially a constitutional convention.
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