Jill Lepore on Reforming the Constitution: A Deep Dive by The Atlantic

Originalism’s Grip on the Constitution Sparks Debate Over Amendment Process

Washington D.C. – A growing contention surrounding the interpretation of the United States Constitution-specifically the rise of originalism-is prompting concerns that the nation’s essential legal document is becoming increasingly rigid and unresponsive to modern needs. Experts suggest this approach effectively diminishes the ability to adapt the Constitution through the amendment process, a cornerstone of its design.

The Core of the debate: Originalism and Constitutional Change

Originalism, a legal beliefs gaining prominence in judicial circles, posits that the Constitution should be interpreted based on the original understanding of its framers.While proponents argue this ensures fidelity to the document’s intended meaning, critics contend it hinders necessary progress and ignores the evolving nature of society. Recent Supreme Court decisions suggest a growing reliance on this interpretive framework.

The Constitution, as conceived by its architects, was intended to be a living document, capable of evolving alongside the nation it governs.The amendment process-outlined in Article V-provides a mechanism for adapting the Constitution to address changing societal values and circumstances. However, the rate of amendment has substantially slowed in recent decades, sparking a debate about the viability of this crucial process.

A History of Amendments – And a Recent decline

Since its ratification in 1789, the Constitution has been amended 27 times. While the first ten amendments, known as the Bill of Rights, addressed fundamental individual liberties, subsequent amendments tackled issues like slavery, voting rights, and presidential succession. However, the last important amendment-the 27th Amendment regarding Congressional pay-was ratified in 1992, over fifty years after it was initially proposed.

data indicates a dramatic decrease in the frequency of proposed and ratified amendments. Approximately 12,000 amendments have been formally introduced in congress, yet only a fraction have achieved ratification. This stark contrast suggests a growing challenge in achieving consensus on constitutional change, particularly amidst increasing political polarization.

Period	Number of Amendments Ratified
1791-1865	16
1866-1971	6
1971-2024	1

The Role of the supreme Court and Shifting Ideologies

The emergence of originalism as a dominant judicial philosophy is linked to legal scholars like Robert Bork and, notably, Justice Antonin scalia, who championed the approach on the Supreme Court. Recent appointments to the high court-including Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett-have reinforced this trend. However, some observers argue that the application of originalism is not always consistent.

Critics allege that the current Court selectively utilizes historical context to justify predetermined ideological outcomes, a practice highlighted by Justice Sonia Sotomayor in a dissenting opinion concerning presidential immunity. This raises questions about the objectivity of originalism and its potential to serve as a tool for enacting constitutional change under the guise of historical interpretation.

Did You No? The american Constitution is among the least frequently amended national constitutions globally, especially when considering its age and the significant societal changes it has witnessed.

Pro Tip: Stay informed about ongoing legal challenges and Supreme Court decisions, as they directly impact the interpretation and application of constitutional principles.

Looking Ahead: The Future of Constitutional Adaptation

The debate surrounding originalism underscores the critical importance of the amendment process as a means of ensuring the Constitution remains relevant and responsive to the needs of a changing nation. If the current trend of limited amendments continues, it could lead to a sense of alienation and disenfranchisement among citizens, potentially threatening the long-term stability of the constitutional order.

Will the U.S. Constitution regain its capacity for adaptation through formal amendments, or will originalism continue to shape its interpretation for generations to come? What steps can be taken to foster a more inclusive and deliberative amendment process?

Understanding Constitutional Interpretation

Constitutional interpretation is a complex field with various schools of thought.Beyond originalism, other approaches include textualism, which focuses on the plain meaning of the Constitution’s text, and living constitutionalism, which emphasizes the document’s evolving nature in response to societal changes. Each approach has its strengths and weaknesses, and the debate over which method is most appropriate continues to shape American law.

Frequently Asked Questions About Originalism

• What is originalism? Originalism is a legal philosophy that interprets the Constitution based on the original understanding of its framers.
• Why is the amendment process important? The amendment process allows the Constitution to adapt to changing societal values and circumstances without resorting to rebellion.
• Has the Constitution been amended recently? The last significant amendment was ratified in 1992,indicating a slowdown in the amendment process.
• What are the criticisms of originalism? Critics argue that originalism can hinder progress and ignore the evolving nature of society and the needs for adaptation.
• How do Supreme Court appointments affect constitutional interpretation? Supreme Court justices play a crucial role in shaping constitutional interpretation through thier rulings.
• Is the Constitution a “living document”? The concept of a “living Constitution” suggests it should be interpreted in light of modern values and circumstances.
• What is textualism as it relates to interpreting the constitution? Textualism focuses on the plain meaning of the Constitution’s text, without relying heavily on historical context.

How does LeporeS analysis of the Constitution challenge traditional understandings of American democracy?

The Core Argument: A Constitution in Crisis?

Jill Lepore’s extensive article in The Atlantic, “The Constitution Isn’t Working,” presents a compelling, and frequently enough unsettling, argument: the U.S. constitution, while a foundational document, is demonstrably failing to address contemporary challenges. Lepore doesn’t advocate for outright abandonment, but rather a serious consideration of constitutional reform. Her analysis centers on the document’s inherent flaws – particularly its original sin of enshrining slavery and its subsequent amendments that, while aiming to correct injustices, often created new complexities.

The central thesis revolves around the idea that the Constitution’s structure, designed for a vastly different era, actively impedes progress on critical issues like voting rights, economic inequality, and political polarization. Lepore argues the system of checks and balances, originally intended to prevent tyranny, now fosters gridlock and allows minority rule to obstruct the will of the majority. This is a key point in the ongoing debate about American democracy and its future.

Key Issues Lepore Highlights

Lepore meticulously dissects several areas where the Constitution falls short. These include:

The Electoral College: She details how this system repeatedly elevates candidates who did not win the popular vote, undermining the principle of “one person, one vote.” The 2000 and 2016 presidential elections serve as stark examples.This fuels the debate around electoral reform and the fairness of presidential elections.

The Senate: The disproportionate representation of smaller states in the Senate, Lepore argues, gives undue power to a minority of the population.This creates a structural bias against more populous states and hinders efforts to address national problems.The filibuster, a related issue, further exacerbates this problem.

Judicial Review: While intended to safeguard constitutional principles, Lepore suggests that lifetime appointments for Supreme Court justices can lead to a judiciary out of step with evolving societal values. The increasing politicization of judicial nominations is a direct consequence. This impacts Supreme Court decisions and their long-term effects.

Amendments & Ratification: The process for amending the Constitution is deliberately tough, requiring supermajorities in Congress and ratification by three-quarters of the states.Lepore contends this makes meaningful reform nearly impossible, even when broad public support exists. The Equal Rights Amendment (ERA) serves as a poignant example of this challenge.

Historical Context: The Constitution’s Original Flaws

Lepore doesn’t shy away from confronting the Constitution’s problematic origins. She emphasizes that the document was crafted by and for a small elite,many of whom were slaveholders. The compromises made to appease Southern states – such as the three-fifths compromise – fundamentally compromised the ideals of equality and justice.

This historical baggage continues to shape contemporary debates about racial justice and systemic inequality. Lepore argues that ignoring this history prevents a genuine understanding of the Constitution’s limitations. Understanding the founding fathers and their motivations is crucial to evaluating the document’s legacy.

Proposed Solutions & Reform Options

Lepore doesn’t offer a single, definitive solution. Instead, she explores a range of potential reforms, acknowledging the immense political obstacles involved. These include:

1. constitutional Convention: A new constitutional convention, though fraught with risk, could provide an prospect for a comprehensive overhaul. However, concerns about radical changes and the potential for further entrenchment of existing inequalities are significant.
2. Amendments (Targeted): Focusing on specific amendments to address pressing issues – such as campaign finance reform or voting rights – may be more politically feasible than a wholesale revision.
3. Statutory Changes: While not altering the Constitution itself, Congress could enact legislation to mitigate some of its most problematic effects. For example, expanding the Supreme Court or limiting the power of the filibuster.
4. Civic Education: Lepore stresses the importance of a more robust and accurate civic education to foster a deeper understanding of the Constitution’s history, flaws, and potential for reform. This is vital for informed political participation.

the Role of Political Polarization

A significant obstacle to constitutional reform, according to Lepore, is the extreme political polarization that currently grips the United states. The increasing tribalism and lack of common ground make it difficult to build the broad consensus needed for meaningful change.

This polarization is fueled by factors such as:

gerrymandering: The manipulation of electoral district boundaries to favor one party over another.

Media Fragmentation: The proliferation of partisan media outlets that reinforce existing biases.

Social Media Echo Chambers: Online platforms that create filter bubbles and limit exposure to diverse perspectives.

Addressing these issues is crucial for creating a more conducive environment for constitutional debate.

Benefits of Considering reform

While the prospect of reforming the Constitution is daunting, Lepore argues that the potential benefits are substantial:

**Strengthen