Every day brings yet more evidence of Donald Trump’s destructiveness. Yet Trump is as much a symptom as a cause of American democracy’s decay. One of the United States’s biggest problems is that it has an archaic 18th-century constitution unsuited for the 21st century. One glaring example of this is that presidents are not elected directly but chosen by an electoral college. Accordingly, twice this century a candidate became the world’s most powerful person despite losing the popular vote. Were it not for the constitution, Trump never would have been president.
This is why Jill Lepore’s sweeping new history of efforts to amend the constitution is so relevant. In We the People Lepore explains that underneath the polarisation that marks contemporary American politics is a paralysis embodied by the failure to amend its constitution. A Harvard historian and staff writer for the New Yorker, Lepore writes thoughtful and engaging history. Because she rarely fails to be interesting, one can forgive her occasional penchant for detours from her main narrative into entertaining anecdotes.
The political architects of the US, as Lepore makes clear, expected that it would require future renovations. As the epigraph of her book declares: “It was intended to be amended!” As Lepore makes clear, the ability to amend the constitution was a central part of the democratic experiment of the new United States.
It went along with government by popular assent (the constitution was ratified by all 13 states) and the right of people to abolish their government and choose a new one as the American colonists had done in revolting against the British Empire. As figures of the Enlightenment, the leaders of the new nation believed in human progress. Expecting future generations to increase in learning, they did not see the constitution as set in stone, but rather as ink on paper that should be edited as time went on.
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Lepore focuses on more than just the American founding fathers, but also on popular movements to shape the constitution. True, it was written by a convention of 55 men in secrecy in Philadelphia during the summer of 1787. But that convention came after a decade of state constitution writing in which ordinary Americans demanded their say.
Moreover, there was widespread debate over whether to ratify the constitution. One common criticism was the document’s failure to enumerate protected liberties. That led to the addition of its first 10 amendments: the celebrated Bill of Rights that included such provisions as the right to assembly, the right to free speech, freedom of religion, and the right to due process for those suspected of or accused of committing crimes.
By 18th century standards, the creation of the US constitution was remarkably democratic; most free men were enfranchised at the time. Yet the majority of Americans were excluded from its democratic processes: indigenous North Americans, enslaved peoples, property-less men, and all women.
But such groups did not simply accept their exclusion. Indeed, many proposed amendments to federal and state constitutions. In one case in Massachusetts, an enslaved woman, Elizabeth Freeman, brought a lawsuit that slavery was contrary to the state’s 1780 constitution stating “All men are born free and equal”. She won her freedom and her case abolished slavery in the state. Such acts demonstrate the potentially radically democratic consequences of enabling “the people” to write, rewrite and interpret their constitutions.
Yet, if the possibility of amending it was so important to the US constitution, then why did its framers make it so damn hard to do so? To amend the constitution requires multiple super-majorities. It must pass with two-thirds of the vote in the House of Representatives and the same majority in the Senate and it must then be passed by three-quarters of state legislatures or conventions. To Lepore the framers of the constitution simply got this one wrong. Of course, they could not anticipate developments such as the rise of party politics that would make obtaining such multiple super-majorities so difficult.
But there is more to it than that. The constitution was designed to protect the interests of small states, meaning that each state no matter how large, gets two senators. The result is that today Wyoming, with a population of about 600,000, has the same number of senators as California, with a population more than 60 times as large. This has the contemporary effect of giving more political power to Americans who are more rural, white and conservative.
Additionally, the framers were men of property who feared too much democracy. In particular, some of them claimed ownership over enslaved peoples. If it was easy to amend the constitution, then it would have been easy to abolish slavery. That is why they were never going to adopt a method that might seem sensible to 21st century minds such as a popular referendum requiring a simple majority as is done in Ireland and many other countries (and in many US states such as California). Whatever the radical promise of amendability in principle, the practical difficulties enshrined in the constitution embodied a significant undemocratic element present in the American nation from the start. The constitution was written as much to restrict democracy as to enable it.
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After the Bill of Rights, the constitution has only been amended 17 times in its nearly two and a half centuries of existence. It typically has taken a national crisis to do so. The most significant amendments were passed in the wake of the civil war when the southern states were temporarily excluded from the union and unable to block them. The 13th amendment abolished slavery. The 14th amendment guaranteed equal protection under the law as well as birthright citizenship. The 15th stated that people cannot be denied the right to vote on the basis of their race (however, that right was routinely violated in the US south during the Jim Crow period).
Eleven further amendments followed over the century or so after the civil war ended in 1865. The major ones required the mobilisation of national movements such as the 19th amendment granting women the right to vote (1920), the 18th amendment prohibiting the sale of alcohol (also 1920), and the 21st amendment (1933) overturning the 19th amendment after the failures of prohibition.
But as Lepore shows, the limited number of amendments during this period was not for want of trying. The 1960s and 1970s saw the last great period of attempted amendment. There were serious efforts to get rid of the electoral college. A proposed 1970 amendment would have given “every person ... the inalienable right to a decent environment”. The failure to add a green amendment of this kind, Lepore contends, inhibits the ability of the US to address the climate emergency today.
The most famous of these failures was the Equal Rights Amendment (ERA) declaring, “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex”. It passed both houses of Congress in 1970 and was ratified by 35 states, falling three states short of becoming fundamental law. The amendment was championed by the growing feminist movement of the time, but it was defeated by a powerful conservative backlash. In the debate over the ERA were the roots of today’s political polarisation in the culture wars that followed.
For Lepore, it is a disturbing sign that there has not been a major amendment since 1971, when the voting age was lowered from 21 to 18. But just as worrying for her is that Americans have mostly stopped even proposing amendments. The result is that enormous power has been given to judges, who have been left with the task of interpreting this ancient document to meet present needs.
In the mid-20th century, such judicial activism won liberal victories, but ever since it has mainly been conservatives reshaping the law. One of the most blatant examples is the reinterpretation of the second amendment of the “right to bear arms” to mean an individual’s right to gun ownership rather than, as it had been previously been interpreted, the right to own arms for collective defence as with 18th century militia. The results of this constitutional reinterpretation have been deadly.
One of the most hopeful political developments of recent years is that many on the left have become aware of the constitution’s undemocratic features. Yet they understandably despair of changing it. Although Lepore calls the possibility of constitutional amendment a “sleeping giant”, it is difficult to see how an amendment could be passed in this divided political climate. Those who recognise the constitution’s defects can take heart from Lepore’s history, which shows that it has been changed in the past and that even when such efforts have failed they have significantly enhanced democratic debate. But perhaps a more sober view would be that the constitution, to quote Karl Marx, “weighs like a nightmare on the brain on the living”.
Further reading
Erwin Chemerinsky, No Democracy Lasts Forever: How the Constitution Threatens the United States: The distinguished Berkeley law professor demonstrates how the flaws of the US constitution lie behind the nation’s political crisis and outlines the radical changes required to fix it.
Aziz Rana, The Constitutional Bind: How Americans Came to Idolize a Document that Fails Them: A political scientist explores how the US constitution came to be so revered and the dangers that the reverence of such a flawed document pose for American democracy.
Alexander Hamilton, John Jay, and James Madison, The Federalist Papers: This is a collection of essays by key framers of the constitution written during the ratification debate. The most influential book written in US political theory, it is essential for understanding the mindset of those who wrote the constitution and for grasping its features, both democratic and undemocratic.
