In “US Constitution: Hiding in Plain Sight,” Daniel Lazare noted the difference between the Constitution’s preamble and what comes next.
The Preamble, for instance, seems to advance a straight-forward theory of popular sovereignty in which ‘we the people’ can do whatever they want ‘in order to form a more perfect union, establish justice, insure domestic tranquility,’ and so forth.
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But the rest of the Constitution goes on to say something very different. Article I establishes a complex legislative process whose purpose is clearly to limit the people’s decision-making abilities. Article II establishes an equally roundabout way of electing presidents. Article III says that federal judges may ‘hold their offices during good behavior,’ which effectively means for life even if the people want to remove them mid-stream.
How can a supposedly sovereign people submit to restrictions on their own power? Finally, there is the amending clause set forth in Article V, which imposes the most astonishing restriction of all. It says that the people cannot change so much as a comma without the approval of two-thirds of each house of Congress plus three-fourths of the states.
This contradiction between the democratic promises of the preamble and what follows is a central (if not fully unacknowledged) part of Jill Lepore’s new book, We the People, which details successful and unsuccessful Article V amendments to the Constitution. The title is surely meant to conjure images of vitality, energy, and potential. We are all the ones who can create change. Allusions to nature abound. Constitutions of old “began with stones and seashells, with old books and oak trees, with sheepskin and goose feathers.” Our social contract was written by quills “fashioned from the feathers of molting geese,” dipped in ink from the “buds of oak leaves, swollen to the size of musket balls by the eggs of wasps.” Nature changes, and the Constitution presumably can too.
Yet, “for long stretches of American history,” Lepore notes, “amending the Constitution has been effectively impossible.” No meaningful amendments have been ratified for fifty-plus years. Today, Article V is a “constitutional barricade,” a “door slammed shut,” and a “sleeping giant” that usually awakens only during war.
What’s to be done? Lepore presents the history of constitutional dynamism in order to “get people to be willing to imagine that they could have a better Constitution.” If we examine how and why something was done in the past, it may help us do something similar in the future. History may help us “learn again to amend.”
Why should the Constitution be changed? Lepore briefly mentions the document’s “aristocratic provisions” like the Electoral College, the malapportioned Senate, and life tenure for Supreme Court Justices. She points to Steven Levitsky and Daniel Ziblatt’s phrase “the tyranny of the minority,” apparently with approval. But that’s about the only explicit critique. Other books—including Lazare’s The Frozen Republic, Levitsky and Ziblatt’s Tyranny of the Minority, Aziz Rana’s The Constitutional Bind, and Erwin Chemerinsky’s No Democracy Lasts Forever—have focused on the Constitution's problematic features far more extensively than Lepore.
Why the lack of critique? Does Lepore assume her audience already knows (or at least intuits) that the Constitution is undemocratic (assuming “undemocratic” is how she would even describe the problem)? Is she weary of making prescriptive changes lest they impede the project of bringing “the people” together?
There’s a lurking knock on the federal Constitution in Pennsylvania’s 1776 Constitution—the “most radical of the early state constitutions,” notes Lepore, that “targeted every trapping of aristocracy,” including bicameralism, a powerful executive, and lifetime appointments to the Supreme Court. But Lepore isn’t interested in Pennsylvania’s Constitution because of its unicameral legislature, its executive council of twelve men that carried out the law but did not veto legislation, or its removable Supreme Court justices. She focuses on the document’s amendment provision, which “made clear that a commitment to the idea of constitutional amendment had emerged.”
The Pennsylvania Constitution had plenty of critics who were “alarmed at its excess of democracy, the unchecked tyranny of the majority.” Lepore writes that its creators had “failed to anticipate how vulnerable a unicameral or single-house legislature would be to demagogues and passing enthusiasms.” This is one of a few areas where Lepore’s impartial voice is frustrating. Is she taking a swipe at unicameralism, or is she paraphrasing John Adams?
The Pennsylvania Constitution also had plenty of supporters, including Benjamin Franklin, his grandson Benjamin Franklin Bache, and Tom Paine. Why the exclusion of their voices? (An interesting article by Franklin Lebovitz details how the Pennsylvania Constitution influenced the 1789 French Constitution, and how the French Revolution in turn spurred an attempt by Paine and others to democratize America’s 1787 Constitution.) Furthermore, Lepore knows the ideological weaponry deployed by defenders of the existing Constitution, including the idea that majority rule is tyrannical. These myths have real power and aren’t things to be thrown around without some sort of disclaimer—unless, of course, one believes them to be true.
What would it look like for Americans to “learn again to amend,” as Lepore puts it? Many of us learn by doing. But as Lepore understands, the Constitution’s structural provisions make amendments essentially impossible. Perhaps “desire” is a better word. But there was an overwhelming desire for a 1969 amendment to abolish the Electoral College, only for the Senate to block it. So passion only goes so far. You can’t learn something that can’t be done. In the end, “Americans might learn again to amend” is just another way of saying that maybe, at some unknown point, Article V can be used to fix the Constitution. Maybe, just maybe, the Constitution can solve its own problems.
But that’s wishful thinking—and somewhere deep down, I think Lepore knows. “Americans might learn again to amend,” she writes, “or else they could invent a new instrument to guarantee liberty, promote equality, nurture families, knit communities, thwart tyranny, and avert the destruction of a habitable earth.”
Lepore’s We the People is another indication of a growing ideological change in how Americans think about the Constitution. It’s also a lengthy admission of uncertainty about the way forward. There’s nothing wrong with uncertainty. But political action demands a choice. In this regard, the book’s either/or conclusion is unsatisfactory.
It’s time to put Article V to rest. We need to write a new set of rules, a social contract that truly embodies the Declaration of Independence’s proclamation of universal and equal rights. Right now, advocates for a democratic constitution are scattered across the country. Neither political party represents our democratic values. But change is happening—if not yet on paper, then at least in people’s minds. We the People is another marker of change.
