"The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.
This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.
The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced.
Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.
Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court....
Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, approved none of them.
&&&&&&&&&The full story is about how the legal theory known as Originalism undermines the evolutionary balance in the US Constitution. Lepore, American historian at Harvard, longtime NY-er journalist, traces an outline of evolutionary balance in US history that includes periods of popular pressures demanding democratizing reforms, Amendments to the Constitution, usually following the cataclysm of wars, alternating with periods of judicial interpretation and review, reconciling democratic pressures with existing Constitutional precedents and the foundational values of the framers.
Originalism, spearheaded by controversial jurist Robert Bork (what Malthus was to free market capitalist early-19th c myth Bork is to Neoliberal technocratic capitalist late-20th c myth), and championed by iconic conservative justice Antonin Scalia, has undermined this evolutionary balance of the Constitution. Killing the Constitution.
Originalism opposes this idea of a give-and-take evolutionary balance in the Constitution as a "living constitution." "It's dead. Dead, dead, dead," scoffs Scalia in public speeches. Jurists extending civil rights to groups unidentified in the Constitution, women, Blacks, etc, are "activist judges" and very bad. Liberal judicial review submits to democratic pressures, Amendments, and a changing evolutionary Constitution and is disparaged as "bleeding-heart liberalism." Originalism insists on strict, limited, readings of the framers original constitutional intentions.
Originalism strikes me as really embarrassingly crackpot stuff for a national institution like the judiciary. Lepore calls Originalism radical but it holds tremendous sway within the conservative mainstream of The Federalist Society; the source of all the conservative justices on SCOTUS and the conservative legal establishment.
Lepore's main case is how for an idea rooted in the importance of history, precedents, and the original framers intentions, the Originalists sure peddle a lot of bad history. Her historical takedown of Scalia's crowning achievement, his 2008 Second Amendment gift to Gun Rights enthusiasts, District of Columbia vs Heller, is like Lisa Simpson doing a touchdown dance with her saxophone. Love it.
(I'd also recommend her podcast X Man: The Elon Musk Origin Story.)
In my amateur take I'd lump Originalism with Neoliberalism and Social Darwinism as kind of obvious intellectual frauds that really only exist as propaganda to protect the rich, wealth, Billionaires, and market fundamentalists from democracy and the rule of law. Labor rights, expanding civil rights, environmental protections, public infrastructure, taxes, regulations, anything that gets in the way of their profit seeking and private wealth hoarding is verboten. That people otherwise sympathetic to working class rights should embrace these ideas as expressions of heroic machismo is one of the tragic conundrums of our day.
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