I like to get a bit of the back story of any given piece I am editing, but that is especially true when I am working with the historian Jill Lepore, because the answer is always revealing. |
"I wanted to try to understand how the Constitution became unamendable," she told me, when I asked how she got started gathering every proposed amendment to the Constitution into one searchable database. Or as she puts it in her guest essay, "How to Stave Off Constitutional Extinction," "No one has ever taken stock of this history of failed amendments, an America that never was." |
Of course, it is still technically possible to amend the Constitution, but there hasn't been a meaningful change since 1971, when the voting age was lowered to 18. "The consequences of a constitution frozen in time in the age of Evel Knievel, 'Shaft' and the Pentagon Papers are dire," Lepore writes. |
Lepore started drilling down on her database, which eventually became The Amendments Project, in 2020. It gathers "every notable documented attempt to amend the U.S. Constitution. It includes at least 11,000 proposals introduced on the floor of Congress between 1789 and 2022, tagged with topics devised by the Comparative Constitutions Project; about 9,000 petitions submitted to Congress between 1789 and 1949, from the Congressional Petitions Database; and many, many more proposals made outside of Congress, by everyone from political parties to activist organizations and people posting petitions on Change.org." |
"Whatever is going on, we need a better historical record," Lepore told me. With the Supreme Court adding "traditionalism on top of originalism" in many of the decisions it made in 2022 and 2023, she said, "it seems to be more urgent that we have better available records of the Constitutional ideas of people outside the ratifying conventions. That's not going to convince the court that these should matter, but the records should be available in case anybody decides they do matter." |
So what would be in this historical record? Here's one example: After the Declaration of Independence was issued in 1776, Lemuel Haynes, a 23-year-old Massachusetts man who was the son of a Black father and a white mother and who had fought in the Continental Army, wrote an amendment: "An affrican has equally as good a right to his Liberty in common with Englishmen: Consequently, the practise of slave-keeping which so much abounds in this land is illicit." (All of the sources in the piece are in their original spelling.) |
There is a lot more, much of it quite moving. In 1788, a group of Black men in New Haven, Conn., submitted a petition to the State Legislature addressed to "all mankind." They asked the government, Lepore reports, "to 'grant us a liberration'; and criticized 'eni law' — any law or constitution — that sanctions slavery, asking, 'Is this to be rite and justes?' Their answer: 'No it murder.' " |
A petition presented by an ordinary citizen or oppressed group might have "no constitutional meaning" to an originalist, but, Lepore asks, "Isn't this, too, a kind of proposed amendment? How would incorporating it into an originalist canon alter American jurisprudence?" Thinking about constitutional meaning making with this all-encompassing approach changes our shared history. |
The good news is that it will all end up in a book. Lepore told me she is "writing a history of the Constitution through how desperately people have been trying to change it all these years." |
Here's what we're focusing on today: |
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