We the People: A History of the U.S. Constitution

by Jill Lepore

The U.S. Constitution was intended to be amended. “The whole purpose of the Constitution,” Supreme Court justice Antonin Scalia once said, “is to prevent a future society from doing whatsoever it wants to do.” 1 This is not true. One of the Constitution’s founding purposes was to prevent change. Another was to allow for change without violence. Amendment is so essential to the American constitutional tradition, so methodical and so entire a conception of endurance through adaptation, that it can best be described as a philosophy.

Every ordered society is governed by a set of core rules, customs, and principles. This is true for every species that lives in a structured community: a pack of wolves or a pod of whales, a hive of honeybees or a colony of ants, a herd of deer or a flock of geese, a clan of elephants or a tribe of apes and even a forest of trees.2 Only humans devise constitutions. Devising constitutions, or fundamental laws, is so elemental to human society that the collective noun might be a constitution of humans.

The idea that the object of a constitution is the common good dates to antiquity.

The revolutionary idea that the ruled rather than the rulers decide the rules emerged only haltingly.

All the same, a written constitution is a different creature from an unwritten one. Committing a constitution to writing offers stability, a form of endurance akin to inheritance, but it also presents a problem: how is a government established by a written constitution to be altered except by its destruction?

By far the most radical innovation of the U.S. Constitution, and of state constitutions, was the provision they made for their own repair and improvement by the people themselves, to the end it may be a government of laws and not of men.

Men amended and women mended. Men wrote and revised texts—bills, laws; women wove and repaired textiles—clothing, bedding. Men wielded pens and operated binderies, stitching books together; women wielded needles and operated spinning wheels and looms. We began this quilt, one woman stitched, with her needle and silken thread. Not We the people do ordain.

Amendability is the essential contribution of American constitutionalism.19

A constitution too easily amended leads to chaos. But a constitution too difficult to amend leads to chaos, too. Without amendment, Wilson argued, there would be nothing but revolution: everlasting insurrection.

But in researching that history, originalists rely on an artificially bounded historical record that disadvantages the descendants of people who were disenfranchised or poorly enfranchised at the time the Constitution was written, people who could not participate in ratifying conventions or serve in Congress or state legislatures or cast a vote for any of the men who did hold those offices, people whose political views were neither sought nor recorded. Originalism follows rules of evidence that no historian could accept.

Press forward, advance, improve, refine, embellish. Amend.

No machine is ever perfect.

Rape is how tyranny was represented in one of the best-known engravings of the American Revolution.

Emancipation had been proclaimed; it had not been constitutionalized.

State constitutional conventions democratized state constitutions, including by eliminating property requirements for voting, even as the white, male delegates who met at those conventions introduced the words white and male into their constitutions, excluding everyone but themselves from the full practice of citizenship. These were the wages of majoritarianism. In response, the people excluded from those meetings, defying the tyranny of the majority, held their own conventions, in which they drafted, ratified, and amended constitutions and statements of purpose, organized petition campaigns, and proposed amendments to the federal and state constitutions. Denied the right to participate in the formal process of drafting and amending state constitutions, they held their own deliberations, promulgated their own interpretation of constitutional clauses, and devised their own philosophy of amendment.

Yet as had also been true in that earlier interregnum, constitutional change happened in these years in the states, where what did or did not belong in a constitution, and how far one could be amended, was the subject of heated and sustained debate. Much of it involved continued and even widening resentment of the federal government, not just from the former states of the Confederacy but from the newer states of the West.

The relationship between temperance and suffrage was uneasy. Within the rhetoric of the movement, drinking was a vice indulged in by men, at the expense of women and children. In 1875 Frances Willard convinced the Illinois chapter of the WCTU to pass a resolution “that since woman is the greatest sufferer from the rum curse, she ought to have power to close the dram-shop door over against her home.” But when Willard, then corresponding secretary of the national organization, sought the presidency, she was defeated. She resigned and inaugurated the Home Protection Petition campaign, seeking for women the right to vote on temperance issues. In 1879 she finally prevailed against the anti-suffrage faction and was elected president of the WCTU, a position she held for nearly twenty years.78

Beginning in the 1890s, the Progressive spirit straddled both the Republican and Democratic parties and animated surprisingly vital third parties, too: the People’s Party, the Progressive Party, and the Socialist Party. The Progressive agenda centered on expanding the power of the federal government to regulate the economy and relations between labor and capital and to restrain the power of corporations. These goals required constitutional changes to which a great many people objected, including a deeply conservative Supreme Court. Progressivism can be understood as an attempt, as the editor Herbert Croly explained, to overthrow “the monarchy of the Constitution.” 8 The Progressive era renewed the American philosophy of amendment: the Constitution had become amendable again—to Progressives’ eyes, not amendable enough, and to the eyes of conservatives, far more amendable than it was ever intended to be.

The Constitution of the United States rests on three eighteenth-century beliefs: that a constitution is a machine, that the human mind is driven by reason, and that history moves in the direction of progress.