Who Gets To Rewrite History? (with Jill Lepore)

What It Covers

Harvard historian Jill Lepore discusses constitutional amendment processes, originalism's flaws in Supreme Court decisions, why the Constitution should be easier to amend, and how historical interpretation shapes modern legal battles and democracy.

Key Questions Answered

• •Constitutional Amendment Difficulty: Article Five's amendment formula was designed before political parties existed, making it accidentally impossible rather than intentionally difficult. This deformity concentrates excessive power in the Supreme Court and presidency, forcing constitutional change through judicial appointments instead of democratic processes involving the people.
• •Originalism's Historical Problems: Originalist Supreme Court opinions are willfully partial, examining only fragments of historical records rather than the entirety that would make accounts recognizable to people who lived then. Key founding documents like Madison's notes were unavailable until the 1840s, making originalism historically impossible as a founding principle.
• •Brown v Board Alternative History: If originalism had been the prevailing Supreme Court doctrine in 1954, Brown v Board would likely have failed. Earl Warren explicitly rejected historical evidence as inconclusive, stating that deferring to segregation's history and tradition would perpetuate it, demonstrating originalism's incompatibility with civil rights progress.
• •Prohibition as Women's Rights: The Eighteenth Amendment emerged from women's rights activism when women could not vote, own property, or charge husbands with crimes. Outlawing alcohol was a strategic protection against domestic violence and economic abuse, not irrational moralism, given women had no other legal recourse against abusive husbands.
• •Presidential Term Limits Codification: The Twenty-Second Amendment limiting presidents to two terms represents successful norm codification after FDR's four elections. A single non-renewable six-year presidential term, frequently proposed since 1787, could reduce executive power concentration and eliminate reelection incentives that distort governance decisions.