Jill Lepore is the David Woods Kemper ’41 Professor of American History at Harvard University and professor of law at Harvard Law School. She is also a staff writer at The New Yorker. Her latest book is We the People: A History of the U.S. Constitution.
In this week’s conversation, Yascha Mounk and Jill Lepore discuss why historians have neglected the story of America, how to fix the toxicity in higher education, and whether we need more constitutional amendments.
This transcript has been condensed and lightly edited for clarity.
Yascha Mounk: I have been reading your work for a long time. I feel like one of the themes of your work, and one of the themes of public debate for the last ten or twenty years, has been trying to figure out how to think about the United States. Is the United States a story of great triumph—a story of building one of the largest, most successful, and most inclusive democracies in human history? Or is it the story of marginalization, exclusion, and injustice?
It seems to me—not to put words in your mouth—but you would likely answer something like both. Tell us about how you are thinking about this question, and how that inflects your historical work.
Jill Lepore: I should begin by saying I never started out as a historian wanting to write this kind of national account—being a national historian or trying to reckon with the question you pose, how should we think about the United States? That was never my question. I think it is an urgent public question and one that historians have generally failed to answer or even to engage with, because national history questions tend to be very dangerous. They tend to be self-satisfied and smug; national histories veer easily into blood-and-soil nationalism, trying to offer an account of a nation’s origins and its meaning.
Some sense of its historical possibility is closely associated with a kind of defensiveness about the idea of the nation. So American historians in particular, really since the 1960s, have not been principally engaged in asking this question: What is the meaning of the United States? How should we think about the United States and its past? That has largely been done politically, and that is what much of American politics revolves around. We have a very hyper-polarized political discourse in this country, and academic accounts of American history, which have generally been aligned with the left, take the position that American history can best be understood as a litany of atrocities that have never been fully reckoned with. Popular history, which is more closely aligned with the right, takes the position that American history is the story of a march of progress and prosperity and freedom, and that the United States is a beacon of liberty around the world.
These two accounts of the past—the one popular and the one academic—are not in conversation with one another at all. They are themselves, in part, the product of our hyper-polarized politics. For me, as a historian interested in groups, conflict, social history, labor history, the history of race relations, women’s history and all the other kinds of histories that were largely left out of the accounts of the American past that I was exposed to as a kid or even in college, I became really troubled by the popular account that misses all of that and therefore is wildly impoverished. Meanwhile, the academic discourse became more and more untethered, I think, from the greatness of the American story and from the genuine promise of the United States’ founding ideals.
So I would say I am a quite reluctant historian of the American nation as a project. But in the 2010s, I became really concerned about the gap between these two accounts and started writing more and more about the idea of the United States, beginning probably with the Tea Party movement, which began in 2008–2009 during Barack Obama’s election and early presidency. The movement sought its legitimacy in telling a particular story about the American Revolution that was unrecognizable to me as a historian of the American Revolution; its account of the American Revolution is bafflingly bizarre. I did a lot of reporting, I spent a lot of time with people in the Tea Party, and it convinced me that we are responsible for this gap. We academic historians are responsible for the gap between what the public thinks about the American past and what scholars know.
So I have been trying to bridge that gap in the work that I have done. I would not say it is my passion as an intellectual—far from it. It feels more like my duty as a citizen and as someone trying to contribute to civil society.
Mounk: Well, I am glad to feel that call of duty and that you are doing and have done that work. Two thoughts come to mind about what you have said so far. One is that academic history has often told, I think, a rather too simple story consisting of an exclusive focus on the atrocities in American history. Part of that is simply that it is not engaging some of those questions. I was a graduate student at Harvard, where you teach, and for a long time there was not a course offered in the history department on the American Revolution, for example. So there was no real attempt to grapple with some of those big questions in a lot of academic history.
The other thing that comes to mind is a conversation I recently had on this podcast with your colleague Randall Kennedy in the law school. What appealed to me about These Truths, your one-volume history of the United States, was that it was a concrete demonstration of a lie that I feel very strongly from both sides of the political spectrum at the moment. On one side, the lie is that in order to be patriotic and to have pride in America’s history, you cannot dwell too much on its dark sides. On the other side, the lie is that if you want to grapple critically with the role that race and racial exclusion have played in American history, or with the history of the exclusion of women from American history, then the only way to do that is through a kind of critical race theory lens. The only way to do that is through a lens that takes what is actually quite a modern, contemporary ideology and superimposes it on American history.
Lepore: The idea that Harvard did not teach a course on the American Revolution was a kind of right-wing canard for a long time, and it was factually not true. There was no course called “The American Revolution” in the course catalog for a number of years, but my amazing colleague Laurel Thatcher Ulrich taught a large general education lecture course called The Pursuit of Happiness that was about the founding and the ideas of the founding, looking at them across culture, space, and time. My wonderful colleague Vince Brown taught a comparative revolutions course on slave rebellions in the Caribbean in relation to the story of the American Revolution. My then colleague Jane Kamensky, who is now the head of Monticello, taught a course on the American Revolution while she was writing her magnificent book about Copley.
I taught a course that at some point was simply called “The American Revolution.” It was a research course on primary-source accounts of Boston and the American Revolution. These courses were not legible in a course catalog as old-school survey courses—first we have the founding class, then there is the American Revolution, then the Industrial Revolution, then the Civil War. They did not look like high school courses. Someone wrote an op-ed in The New York Times complaining, essentially, “Who are these idiots in the Harvard history department who do not teach the American Revolution?” We were all baffled. Should our course names be more legible? What was the problem?
Mounk: Course names in general should be more legible, probably mine as well. I remember this being told to me by two Harvard faculty members who were proposing to teach a course about the American Revolution and who felt that, at the time they were doing that, there were no other courses. So I did not get this from Fox News; I had this from some of your colleagues.
Lepore: I get that. I am just saying it is one of those things that gets batted around, that just became a thing online. I would point out that in the new Ken Burns twelve-hour series on the American Revolution, some of the most stunning academic historians who appear as talking heads—which is magnificent—are chiefly my colleagues: Phil Deloria, who also covered the American Revolution in his Native American history class; Vince Brown; and Maya Jasanoff. It really is material that we do teach and think about. So I do not need to derail your critique, because of course I agree with much of the critique as a whole, but I am tired of being a punching bag around things that make no sense.
Mounk: I did not mean to pick on the Harvard history department, of which I have fond memories from when I was a grad student. I was in the government department doing political theory, but I went to many events in the history department and had colleagues who were PhD students there. To name another example from the university where I now teach, Johns Hopkins, there is an initiative to ensure that some courses undergraduates take on the way to their BA degree would need to have a democracy theme. It could be in many different departments and could take many different approaches. There is very strong resistance to this among the faculty. Part of that is that faculty are always going to resist a university administration trying to impose anything on them; some of this is just normal bureaucratic politics. But I do think there is a broader concern, which I think we agree on, where we are not willing to contest some of those ideas, and then they become colonized both by people with less expertise and by people who might have a more simplistic view of them.
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To take a completely different example, I have long felt that the ascendancy of Jordan Peterson was, in many ways, a failure of moderate intellectuals, because he was willing to give very public advice to disoriented young men about how to structure and lead their lives. Again, I am sure there was somebody on the center right and probably even somebody on the center left engaged in the same enterprise, but there really was a vacuum that made it easy for somebody like Jordan Peterson to fill it. One way of putting this is that there is an instinct toward critique, which is trying to tear something down. That instinct made sense at a time when a deep understanding and worship of American history was a tangible feature of American life—when every five-year-old would learn the capitals of the American states by heart and there was a kind of unthinking civic pride. There was an understandable attempt to tear that down. I worry that at this moment, the basic orientation not just of history but of political science and many academic fields is still to take down this naive image and naive reverence for things, but that reverence no longer exists in society in the way we assume.
Lepore: I think that is fair, and yet it is being required. That is what the Trump campaign for patriotic education is. It is the absence of that which is now mandated by the federal government. So I do not rest as easily about that as maybe you do, but it is absolutely the case that a lot was evacuated from the teaching of American history that Americans really need—and that anyone studying in the United States, American or not, really needs.
For instance, constitutional history used to be taught in history departments; it is not anymore. It is not even really taught in law schools. Constitutional law is taught in law schools, which has a historical dimension in which constitutional law hopscotches from major Supreme Court decision to major Supreme Court decision. You then come to believe that the Constitution is what the Supreme Court says it is, and that there is no role for any other interlocutors in interpreting, understanding, or mending the Constitution. And that is a problem. It is a problem that history departments stopped teaching constitutional history or stopped teaching electoral political history. The politics that history departments generally taught for some decades was a kind of Foucauldian notion of power rather than how democracies work.
So, exactly as you say, there is a compensatory moment now. We do need to be teaching some things about citizenship, and there will be some requirements that history departments include in their curricula explanations of the origins of modern democracy. That there is resistance to that, I do frankly understand, because if it were coming from faculty and students and emerging from an intellectual commitment and a civic notion regarding the role of the university, that would be great. But what it often feels like at some of these institutions is capitulation to an increasingly interfering federal government that is dictating what must be taught and who may teach it.
I think that, and my guess is that even at a place like Johns Hopkins, the faculty resistance to you must now teach democracy and cherish it with your students is partly: is this what we should be teaching because we should be teaching it, or is this us trying to defend ourselves against further attacks from the federal government? And that is not okay.
Mounk: To be clear, this initiative at Johns Hopkins started well before 2024, so it is not a reaction to Trump being reelected. But I think that does pose a deeper problem for how to think about this in universities. I was not going to jump into this early in the conversation, but you recently gave a number of interviews in which you said that you were so perturbed by the rise of, for lack of a better word, woke ideas at Harvard and at other universities that you strongly considered resigning your position because the atmosphere had become so unbearable.
I think it does pose the question of how we deal with some of those failings within our universities. I worry that there was a moment in 2023 and 2024 when some of those excesses and shortcomings were becoming increasingly clear, and the majority of faculty—or plurality of faculty—who I think are center-left liberals, with a bit of a progressive bent but not all-out left-wing ideologues, were recognizing that and saying, okay, let us reform.
I worry that in this political moment, some of what the Trump administration does is indeed so extreme, and in particular some of its attacks on universities are so extreme, that there is a rally-around-the-flag effect. Any reform that in 2023 or 2024 you might have been able to get a majority of the faculty at Harvard or Johns Hopkins or any other leading university behind now immediately reads as either capitulation to the demands of the Trump administration or peremptory obedience. That creates a very bad dynamic, where we are unwilling to fix problems that we ourselves, in private moments, are willing to recognize, because any attempt to do so can quickly be coded and attacked as capitulating to the Trump administration.
So how do we reform the university, and how do we fix some of these problems, without falling into that trap?
Lepore: I do think that is tricky. I do think it requires being open and candid with one another, though not necessarily always with the public. I am not sure this needs to be discharged through a public forum. There are failures over the last twenty years or so within higher education that I would not describe as redounding to the problems of woke ideology. There are a lot of problems with higher education that have nothing to do with woke ideology, whatever that is meant to be.
I think it has to be possible to identify those things, be honest about them, disagree about what those failings were or whether they still exist, and address them, without all of that being seen as bound up with some kind of capitulation to the Trump administration. But I think that may be an argument for doing that within the walls of the academy and not in a public forum, which is why I am not the person who is out there making a career for myself talking about how higher education is such a problem. There are people who do that. That is a big part of the Jordan Peterson beat—the sort of exile from higher education.
In a way, the space that those characters take up in the public sphere makes it much more difficult for anyone else to speak honestly and candidly, because most reasonable people fear being classed with those self-congratulatory exiles.
Mounk: So what is the problem of the university in your mind? I agree that there are many problems, such as very high tuition fees and the fact that renovating the gym and ensuring the best possible athletic facilities often had a higher priority than paying adjunct faculty members decent wages. There are all kinds of things one can complain about in the university with very good reason that have nothing to do with that.
But I do not presume that the fact that Harvard sometimes had the wrong spending priorities is the reason you nearly resigned your job. From what you have said publicly, it does sound as though it has to do with an intellectual atmosphere in which, at least for a few years, it was very difficult—even for someone who is left of center and who, I do not know how you self-describe politically, but who clearly in many ways is progressive—to speak freely without fear of the kind of unpleasantness that made you think you might rather make a life for yourself outside academia.
Lepore: It might be useful to think historically here instead of autobiographically, which I do not think is all that fruitful. I spent a lot of time when I was working on my most recent book—that is, We the People: A History of the Constitution—thinking about the life of Charles Beard, who has always been one of my intellectual heroes. Beard, whose wife Mary Ritter Beard was also a famous and deservedly celebrated American historian and a pioneering historian of women, had been an eminent professor at Columbia and was most famous for a book he published in 1913 for which he was resoundingly attacked. It is a book called The Economic Interpretation of the U.S. Constitution. It really shook things up.
Beard was a progressive in the old-fashioned sense. He was a progressive of the Progressive Era. He was a political historian but also an economic historian. He was a very active progressive leader, very involved in the progressive cause of the 1910s, which chiefly involved attempts to amend the Constitution. The progressives, in fact, succeeded. They amended the Constitution four times between 1913 and 1920. Beard was involved in all of those efforts, which culminated in the Nineteenth Amendment granting women the right to vote, which Mary Ritter Beard was also, of course, involved in.
But Beard wrote this book about the Constitution in which he argued that the Constitution’s origins were chiefly economic, that the framers of the Constitution were wealthy men—he spent a lot of time documenting their incomes and the sources of their income—and that they had devised a Constitution that protected their own property rights. It was largely read as an indictment of the Senate, which was considered the millionaire’s club at the time. Before the Seventeenth Amendment, the U.S. Senate was elected by members of the state legislatures, and you could basically bribe your way into the Senate if you had enough money.
Progressives had been trying for decades to get rid of the indirect election of the Senate, which had also been a feature of many state constitutions at the start and had been amended out of those state constitutions. It was a wildly anti-democratic provision. Could the people not elect their own representatives? Was that not the whole point? It had been successfully amended out of the state constitutions, but it was very difficult to get it amended out of the U.S. Constitution because it had to get through the Senate. The members of the Senate had no interest in being elected directly by the people because they all knew they would lose their jobs.
So part of the way Beard’s work was seen was as endorsing what became the Seventeenth Amendment in 1913, by which progressives managed to get the Senate to approve the amendment to be elected by the people, in part by threatening to hold a constitutional convention. Beard had done this really interesting work, and then he was very defensive about it when reviews came out saying the book was attempting to amend the Constitution by writing a new history of it. It seemed very instrumentalist to his critics, who had some pure notion of the historian who somehow does not live in the time in which he is writing. He defended that, saying that this is what he found in the archives. This was the story he found in the archives, and he wanted to tell it.
Mounk: He claimed that he wasn’t aiming for political impact, even though that likely wasn’t true.
Lepore: Yes and that is interesting to me because I discovered that he was living in New York at the time. He founded and was for a long time a member of the committee to amend the federal Constitution. He was entirely involved—very much a political actor in a way that I am not. I am not on a committee to amend the Constitution. But Beard was an extremely principled person. During the First World War, the very conservative president of Columbia, Nicholas Butler, who was a constitutional conservative at a time when constitutional conservatism was being founded, required that faculty sign a loyalty oath to the United States.
The U.S. entry into the war in Europe was extremely unpopular in the United States. Wilson was despised for it, and therefore founded this ministry of propaganda to try to convince the American people that the Germans were evil and needed to be stopped. Beard, who actually supported the U.S. entry into the war, strongly opposed the loyalty oaths. When two of his colleagues were fired for refusing to sign them, he resigned in protest. I think it was 1917, right around when the Sedition Act was passed, when Eugene Debs was being arrested, and when there was widespread repression of political dissent and opposition to the war.
Beard, as a principled matter, retired. Because of the book he had written about the Constitution, he was by far the best-known American historian of his day. He moved to Connecticut and raised cows. I think a lot about what it took for Beard to leave academic life at a time of political repression. He continued writing history. He went on to write, with his wife, probably the best textbook of the time, The Rise of American Civilization. It came out, I think, in 1927. But he and his wife—and he alone—wrote a series of textbooks. He later taught at the New School for some time. He died, I think, in 1948. So he did have some later academic life.
But I think it is a good illustration of a principled engagement with the idea of free inquiry and of higher education and of the importance of the study of the American past, especially in times of political crisis, when the trial of ideas and the world of democracy are in question. Beard wrote a beautiful essay in 1934—I think it is called The Future of American Democracy. He was someone who found a way to celebrate what universities are for and yet could not be in a university. So my point in telling this tale is that I do not think this is a new dilemma. It is not as though we are living in some uniquely strange time. There is always a tension between the university and the state.
Mounk: Well, let me say two things about that. One is that it is clear and obvious to me that restrictions on what people can say—driven either by top-down political demands or by the preferences and moral strictures of a particular social milieu that has captured a part of society—are a very regular occurrence in human history. Many of the most famous instances of moral panics that we come to regret in retrospect fall precisely into that category. So the claim is certainly not that there was something unique about the American university in 2015 or 2018 in that respect.
But surely the inference from that is that this is all the more reason to be very clear and upfront about the nature of it and to speak out against it. You very elegantly answered my question with a historical metaphor. In the case of historical metaphors, there are always analogies—an element that is similar and an element that is dissimilar. You may argue that there are elements of dissimilarity here. But did you not inadvertently compare what it was like to be a professor at Harvard in 2018 to what it was like to be a professor at Columbia in 1917 or in 1932, which is actually quite a striking claim to make?
Lepore: Let us think of a different example. I was thinking about Francis Lieber, a German intellectual who immigrated to the United States in the 1820s. He is often described as the German Tocqueville. He could not get a job teaching in the North, and he took a job in South Carolina—then South Carolina College, now the University of South Carolina, I believe. He was an abolitionist, and he tried for decades to get out of South Carolina. Yet he became an owner of slaves. He owned other human beings. He wrote in his diary about these purchases. He was not a large plantation owner, but he had a number of women who worked as domestics in human bondage in his service.
He did not manage to get out of South Carolina until after Dred Scott—the 1857 decision of the Supreme Court that ruled that no Black American could ever be a citizen of the United States. He manages to get out, goes to Columbia, and there delivers a series of lectures on the Constitution renouncing secession. It is a really interesting story because you see someone who had wholly compromised a deeply held principle. He was not an antiracist, but he was opposed to human bondage. Yet he participated in it. He wrote these private letters to John C. Calhoun that he was unwilling to publish, and he let himself be completely suppressed as an intellectual by what we would describe as the academic job market. He simply could not get a job. In large part because he was Jewish, although that is contentious.
Anyway, he then goes to Columbia, has this real blossoming, and gives a series of lectures that are widely published in newspapers. Lincoln then hires him to write the laws of war. He famously writes what becomes known as the Lieber Code, which is the basis of the Geneva Code. It is the set of laws of war that the United States adopts during the Civil War.
So he has this late-stage career in which he considers himself to be acting in accordance with his principles. But in my mind, it is a counterexample to Beard in terms of the relationship between intellectual complicity with the ideological position of the state and one’s own commitment to ideas and the freedom of ideas.
Mounk: I want to get into the history of the Constitution and your latest book in a moment, but just a final question on this. What lessons do you take from this contrast between Lieber and Beard for what it means to be true to yourself as an intellectual at a time when there are tremendous pressures on you, whether that is being an intellectual who wants to defend a substantive notion of liberal democracy in Hungary at a time when large parts of the state—and increasingly the academic system—are captured by loyalists to Viktor Orbán, or whether you are an intellectual or an academic who has certain views disfavored by their colleagues in the American academy in 2018?
Lepore: I do not know. Obviously I wrestled with that a lot over the last years, and I think I have failed to live up to my own principles. Far be it for me to suggest what those principles should be for anyone else or how they ought to honor them. You can tell I do not really want to talk about this. I would much rather talk about the work. But just to finish up this point, for me, there were many tough moments. One tough moment was when some students in a class I was teaching said they would not read the Dred Scott opinion, this 1857 Supreme Court decision by Chief Justice Roger Taney, which is considered one of the worst, if not the worst, opinions ever issued by the Supreme Court.
My goal in teaching was surely not to defend it. But the assignment was to engage in a debate in section over the question of whether the U.S. Constitution did or did not sanction slavery, based on a series of readings on that question from the 1850s, which included writings by Abraham Lincoln, Stephen Douglas, Frederick Douglass, and then the Dred Scott decision.
I remember sitting in my office thinking, I do not feel it is really true that I have to explain that you have to read historical documents even if you do not like them. That seemed like the most elementary piece of work for being a human in the world. I prepared something I might say—bring these students into office hours and say, here is the thing I want to explain—and I was just mad. Who told these people that you could simply say, I do not want to read that because I find it painful? Because if that is how you feel, you cannot read history. History is full of pain. People suffer. Literature is full of pain. Philosophy is full of pain. The human experience is full of pain and suffering and injustice. To gain any capacity to live a good life, you have to confront pain, injustice and suffering, find a way to think about it, reckon with it, remedy it and make amends for it.
If this is what my job is reduced to, saying that you actually have to do the reading, what am I doing? I think that is a good encapsulation. Sure, there were the firings, there was all kinds of nonsense going on. Honestly, these are very young people; I do not blame them. Whatever they brought, they did not get this from me. They got it somewhere. Yet they feel it with such tenacity. For me, that is different from Charles Beard’s problem. That is different from Francis Lieber’s problem. It is not really even about the university at all.
Mounk: That is perhaps more similar to what Theodor Adorno faced in 1968, when his students decided that he was actually a terrible reactionary and started protesting his lectures, et cetera. Pressure from students is a different thing from pressure from administrators. The thing that bugs me about this kind of response is that if somebody says, I just want to devote my life to thinking about pleasant things, and I just want to read pretty love stories, that is not my choice, but I think it is a coherent choice. If you love beauty and want to look at pretty pictures and read nice novels, I think that misunderstands what some of the most important pictures in the history of art are and what some of the most moving novels written by humans are. But fair enough—there are worse ways of spending a life.
What is strange and contradictory about this is the parallel insistence that we want to have a very negative view of the world and claim that we are fighting against injustice and suffering of every kind, but we do not want to grapple with its actual historical and contemporary nature because we are not going to read the texts. That is what is strange about it.
I promise this is the last question in this direction, but when I asked you whether there was a zeal that some students—never a majority—brought to the classroom, where they wanted to impose a certain view, it was not just, I personally do not want to read this text. It was, it sends the message that you are that kind of person for wanting us to read this text. There was an implicit threat in it. I have not found that anymore in the last few years. I know we agree on that. But something has changed in the mentality of the students. Perhaps, precisely, it is not that they do not believe in some of those ideas anymore; it is that what once felt like an organic movement of their generation has become something they have been taught by the culture—by parts of the culture at least—since elementary school or middle school or high school. Even if they believe in the ideas, they do not have the same fervency. I wonder whether you have felt that shift among the students in the last few years as well.
Lepore: Yeah, I do think it is the case that the students are less prosecutorial—in the sense of being less prosecutorial of one another—which was really the most painful thing to see. I can take it, but they are very young to be snapping at each other and recording each other in class and shaming one another. There is much less of that now. I think the inclination to take a critical stance on the syllabus is as old as the hills. There is always going to be, why didn’t you include this? and why did you not include that? It will change from year to year what they think should or should not be included. But zeal is a good word for it. There is less of that zeal and satisfaction—or the sense that that is the only kind of intellectual work worth doing.
Mounk: Let us get to the U.S. Constitution, which you discuss in your latest book. There is something paradoxical about the Constitution, in that it is in some ways the most successful political document in the history of mankind. It set up a vast continental republic that is about to celebrate its 250th anniversary. It is today the most—or one of the two most—powerful countries in the world. It has survived largely unchanged over a period in which other countries, including other relatively successful democracies, have gone through ten, twenty, thirty different constitutional documents.
At the same time, when you look at American politics today, it can feel as though some of the stuckness that animates the political divisions we see—the political frustrations that are among the contributing reasons people feel compelled to vote for someone like Donald Trump—also derives in some ways from the difficulty and the stickiness of that document. So how, as a historian, are you thinking about the successes and the limitations of this document?
Lepore: I think that Americans, on the whole, relative to people of other nations, have a great deal of veneration for the Constitution, which is based partly on a cultural predisposition but also on its longevity, which is extraordinarily unusual. Globally, the average lifespan of a constitution is nineteen years. Other nation-states revise and replace their constitutions all the time.
I think many Americans attribute American prosperity, prominence, and stability to the Constitution without necessarily knowing exactly why or what the mechanism is by which the Constitution provides that stability. It is often just assumed. Although state constitutions in the United States much more closely resemble the constitutions of other nation-states—because our state constitutions are revised and replaced frequently—Americans rarely think about them. Not so much replaced anymore, but there have been more than two hundred state constitutional conventions. My home state, Massachusetts, has the oldest written constitution still in effect, adopted in 1780, but it has been amended more than one hundred times.
I think many Americans do not even know they have state constitutions. Even when ballot questions come around that are amendments to the state constitution, it is not always clear what that is: Am I helping to pass a law? Is it a statute? What is it?
Mounk: They understand that it is some change, but they’re not thinking of it in terms of a constitution.
Lepore: You could say that the state constitutions work better. People have a better relationship with their state governments right now, I think, than they do with the federal government. I am sure there is political science literature on this that I have not consulted, and maybe it goes against this theory.
Mounk: Some of the most contentious questions are at the national level rather than the state level, right?
Lepore: all of our questions have been nationalized because we have a nationalized politics, because of changes in the media environment. So I do not know, but I think that one thing Americans do not feel about the U.S. Constitution is that they are the authors of it. And yet they are. That is the whole principle of our constitutional system—that this is a government of the people, by the people, and for the people, as Lincoln said. He was summarizing the Declaration of Independence, but he was also constitutionalizing the Declaration of Independence. That was Lincoln’s chief contribution as a political thinker: to take these ideas that came from Black abolitionists who were attempting to merge the Declaration of Independence with the Constitution.
Part of the culture of veneration, which seems healthy, certainly veers into unhealthy territory in that Americans do not have a sense of their own political capacity as citizens to interpret or amend the Constitution. They do at certain times, in eras when the Constitution is being amended by the people, which has happened in bursts at different moments in time. But it has not happened really in our lifetimes. Nineteen seventy-one is the last time the U.S. Constitution was meaningfully amended. That is a long drought. So long that I do not think most Americans know the U.S. Constitution can be amended, much less have a vision for what they would want if they knew that it could. And I think that is an impoverishment of our political discourse.
I also think the fact that we no longer hold state constitutional conventions—which used to be very frequent—is significant. The last full constitutional convention was held in Rhode Island in 1986. I do not think a lot of great stuff necessarily comes out of them, but the convening itself—knowing that your state is electing delegates to go revise the state constitution—is a kind of civic renewal. It relies on a capacity for exercising the skills of democratic citizenship that I do not think we really have. A lot of those skills have atrophied.
I have spent a lot of time talking to different audiences around the country about this book, and people say, well, you are arguing we should have another constitutional convention—like a federal constitution. Isn’t that dangerous? It will result in a MAGA constitution. I am not making an argument about what we should or should not do. I often put it to people by saying: if trial by jury had been put on a shelf in 1971, if we had decided there were other methods that would be more fair—at this point you could have AI do it, right? The lie detector was invented in the 1920s to replace trial by jury. There are so many problems with jury results, and lawyers hate juries.
Mounk: In Britain, there’s currently a proposal by the Labour government in Britain to abolish juries for all but the most serious criminal cases.
Lepore: There is a lot of anti-jury sentiment in the legal community. So imagine, just as a counterfactual, that in 1971 this had succeeded and there was no more trial by jury for any kind of trial in the United States. Then imagine that in 2025 somebody said, I think we should bring back trial by jury. Would anybody support that? I put this to an audience—no, no one would support that. Twelve random people are going to decide whether my son is guilty of something or whether my daughter should be awarded this compensation?
That is sort of how I feel about amending the Constitution or the people’s capacity to hold a convention. We have just accepted that we are passive in the face of this, that there are better modes, that people in power are better positioned—and in this case, the people in power on the Supreme Court—to do this work. Yet I will say that I am a huge fan of trials by jury. Not because I think it necessarily leads to the most just and fair outcomes. I have not really inspected the literature on that, but I am sure there are reasons to be doubtful and to think it might be better to have judges make more of these decisions.
But going—even going and not being called for a jury—is a civic experience and an exercise in the development of the capacity of citizenship. Even watching the little video where they explain what your job is going to be on the jury is one of the few times that we still gather as citizens with a faith in our capacity to deliberate together reasonably in the face of competing strands of evidence and come to a true conclusion. That is a beautiful idea.
We could give up on that, and we could give up on the idea that we have the right to consent to be governed in the form of amending our own Constitution. But then what—democracy is just going to be elections every two or four years? It is like being a Christmas-and-Easter Catholic. I do not get it.
Mounk: I agree with you strongly about jury trials and their importance. I also agree that there are many concerning things that come out of effectively having made it impossible to amend the Constitution. There is a broader political science literature about semi-presidentialism, which argues that when the president and Congress usually have different majorities, that might seem like a great protection for democracy because it makes it incredibly hard to make political changes, including changes that would restrict democratic rights. But in practice, the gridlock that this leads to has very negative effects. Eventually people become so frustrated that they may be more willing to vote for a strongman who says, none of this is working. Give me the trust to do something about it.
I think that, in a parallel vein—I am arguing by analogy here—you might think that a constitution that is really rigid best preserves our liberties because you cannot have a small majority of deputies who happen to win one election go and abolish the First Amendment or abolish certain basic rights that we have. Certainly, in this political moment, I am quite glad that it is hard to make political changes in the United States because it provides constraints on what Trump can do in the White House.
But in fact, it also has many negative political impacts, one of which is that nine unelected judges become the de facto interpreters—and to some extent writers—of a constitutional order. Popular majorities continue to feel frustrated because even if they have a strong preference that goes against what those nine judges believe the Constitution to say, they are unable to make their voices heard. Perhaps that leads to a lot of frustration and dysfunction and polarization in our society. I find all of that very plausible. So I think, as often in politics, you are faced with a real trade-off: the trade-off of wanting some surety against the ability of changeable political majorities to impose their will immediately, and the fact that if you introduce too many veto points—and America has more veto points than virtually any other democracy in the world—then the very thing you are trying to guard against might be hastened by it.
Explain to me why it is that we feel there has been a change, because Britain is considering legislation to abolish jury trials, but we have not changed the mechanism by which we amend the Constitution. The mechanism is the same as it always was. Yet, as you point out, we have not had a constitutional amendment since 1971—over fifty years. You know the exact historical dates better than I do. As you pointed out, amendments have historically come in bursts; they tend to cluster around certain moments when there is a widely felt need for change. But I do not know if there had been a fifty-year period before 1971 in which there were no constitutional amendments at all.
So why is it that, even though we have not abolished our ability to make constitutional amendments—not changed the mechanism—it has now become so difficult? Is the way to change that social or political? Would you be in favor of a constitutional amendment that makes it easier to amend the Constitution? If we take that seriously as a concern, as you do, what does that mean for what we should do?
Lepore: I am just trying to run the math in my head. This is not the longest constitutional amendment drought. The Twelfth Amendment is 1803 and the Thirteenth is 1865. But of course, those were years when the issue most Americans were fighting about constitutionally was slavery, and they were unable to amend the Constitution to address it. There was no way an amendment could have resolved that—it led to a civil war. It would have been healthier if there were a series of amendments that could have addressed it.
That paralysis—the paralysis during which the Supreme Court assumed the authority, which is not written into the Constitution, to overturn the laws of Congress by declaring them unconstitutional—is the era in which the authority of the judiciary becomes supreme. And that is really a function of the failure of Americans to amend the Constitution and solve the problem of slavery by peaceable means. The amendment mechanism of the Constitution, Article V, is there in order to avert insurrection.
The founding idea, which came from the state constitutions, was: we have just been through this bloody revolution; we are going to write down our constitution, unlike England. We are going to write it down. If we write it down, the risk is that it will be fixed and too brittle. So we must have a mechanism to change it. It must be challenging and difficult to change, but it cannot be impossible, or else the only way to fundamentally change the structure of government will be by revolution. That is what they were trying to avoid.
So they came up with what they thought was a brilliant notion—this peaceable means to improve, to make amends, to correct, to repair, to adjust, to modernize. There are so many meanings of “amendment.” To your point, it immediately did not work, because there were questions that Americans could not solve through the mechanism of Article V, given sectionalism and given the party system, neither of which really existed when the document was drafted. They did not call it sectionalism, but there were huge sectional tensions underlying the compromises of the Constitution. But the party system did not exist.
Mounk: It is the most undertheorized part of every modern constitutional order. You read the great founders of modern democracy, and people do not really reckon with the existence of political parties because they did not yet exist.
Lepore: In 1787, there were no political parties in the United States. Political parties are antithetical to republicanism. Factionalism is what will destroy a republic. Of course there will never be political parties in our country. Therefore, when the framers put into the Constitution these double supermajority requirements—an amendment has to pass a two-thirds supermajority in both houses of Congress and three-quarters of the states—this is difficult, but it is not impossible. But then it becomes impossible. It becomes extremely difficult because the party system emerges by 1800.
Our modern era of hyper-polarization begins around 1968. In 1972, the ERA passed Congress and went to the states. It becomes part of the set of issues that is further polarizing the United States. Then, of course, it was not ratified, although there are people who would debate whether in fact it is in a de facto sense ratified. So, why cannot the Constitution be amended now? Polarization.
I worked with YouGov, the polling organization, and the group More in Common—a tremendously important research outfit—a few years ago, in 2022, to do some polling. We asked: if you could amend the Constitution by national popular vote, would you agree to these particular things?
It turned out there really was not that much that Americans—even with a simple majority national popular vote—could do. The big issues that people were divided on, they were too divided on to execute in an amendment. That is going from zero. Let us say you wanted to propose an amendment to abolish birthright citizenship. There has been a movement since about 1994, when the first member of Congress introduced an amendment to the Constitution to abolish birthright citizenship.
But because that is never going to get through by way of an Article V amendment, there is no chance that Americans would amend birthright citizenship out of the Constitution. It is not something Americans want. As you say, the insurrectionary attempt to do that by non-Article V means has been incredibly destabilizing. We have masked agents of the federal government pulling people out of preschool rooms and throwing them into unmarked vehicles, shipping them out of the country to a place they have never been before. That is what happens when we do not have the actual popular debate. There is no attempt to bring to the people this question in a meaningful way.
Mounk: How do we think about the promise of constitutional politics? Certainly if we say that we are collectively self-governing, but we are effectively governed by a document written 250 years ago or so, and which we know we are not realistically able to change—in part because of our divisions—it is not God-given; it is simply the fact that we cannot agree on things to such an extent that we would be able to amend it. But as you are rightly pointing out, constitutional amendment has effectively dropped off as a form of our politics. Whenever I have a student who writes an essay saying, we should have this constitutional amendment to do that, I roll my eyes because I think that is never going to happen. It is not that it is an unreasonable thing to want, depending on the suggestion. It is just that, as a political course of action, it seems quixotic because of the background conditions you are talking about.
Now, on the other hand, I do think there is a danger in politics of trying to blame the Constitution, or the difficulty of changing the Constitution, for things that actually have very little to do with it—things rooted in deep disagreements about what the country should look like. Perhaps the best example of this is the political history of Chile in recent years.
In its transition from the Pinochet regime, Chile ended up with an amended version of the constitution written in the latter years of that regime. It feels historically illegitimate because it still carries the whiff of the Pinochet years. There is also an argument that some of its provisions, including relatively mild supermajority requirements for certain forms of social spending, are the reason why many popular political causes are not being realized. So they ended up calling a constitutional convention that elected a very left-wing group of people to write a new constitution, and that constitution was so unpopular that it was voted down by the people.
Then there was a new constitutional convention which elected a very right-wing group of people. They wrote a constitution meant to appeal to the political right, and it too was voted down, whether by a large or small margin, but I believe by a similar margin. Now Chile is back to having the old constitution.
Would you be excited about a constitutional convention in the United States? Do you think this is something that could lead to a productive form of politics? Or would it simply be a very visible stage on which Lauren Boebert and whoever else could grandstand and shout at each other, and in the end we would either pass a bunch of crazy stuff or pass nothing at all because the convention could not gather the majorities required for us to agree on a different layout of a constitution?
Lepore: I am really not a policymaker. I do not have a prescription here, and I think it is worse than useless to offer prescriptions when you are not a policy person who thinks about policy. My sense is that we do not really have the civic capacity right now to hold a constitutional convention that would be fair and that would lead to changes that could succeed at ratification. You have to run before you walk, but you also have to get out of bed before you can walk. I feel like, for most Americans, national politics or their engagement with constitutionalism involves following stuff on social media and maybe voting.
That is the best case. I think people need to get off their ass a bit and be involved in: does my city need a new charter? Should my town revise the town codes around public accommodation or something like that? I think people need to be involved in their neighborhoods, in their towns, in their cities—build back civic capacity, face-to-face civic capacity—before the Tocqueville-in-the-1830s sense of people arguing about everything all the time face-to-face and constantly revising their city charters.
I think we would need to build that back before I would be optimistic about the outcome of a constitutional convention, which I have no opposition to. I just do not think—and I take from your comments that this is your disposition as well—that this seems likely to be a great democratic success, given the conditions on the ground at the moment.
Mounk: Is there a pattern in which it takes a very deep crisis—and it takes, to some extent, moving beyond that crisis—to have a moment of constitutional renovation? Right now we are in a crisis, and so it really does not feel likely. If ever there were a moment, perhaps it would be because the MAGA movement really does damage democracy to such an extent that there is a popular revulsion against it and a post-Trump moment in which people come together and say, hang on a second, this really took us in the wrong direction.
I am not sure how likely that is, by the way, or how soon it would come. But assuming something like that, there would then be the political space to say, all right, we have been through this. We recognize that we went down a road we did not want to go down. We now have a few years of relative political consensus. Let us come together and think about some of the changes we need in order to make sure this does not happen again.
Lepore: I honestly think that. I think I have a greater sense that that is possible than you do. There is a window of opportunity when it becomes possible to imagine amending the Constitution, and quite a lot can get done. The fear is that the stuff that will get done would be bad, but that is democracy—there is always the risk of losing when you put something to a popular vote. But I think that, in large part, this is one of the reasons I wrote the book, which is to say: if we want to imagine the Constitution being different, or imagine that we are the authors of it, we really have to have a better and much broader sense of the history of the Constitution—one that is not just a series of Supreme Court decisions but the history of the struggles of Americans who were left out of the Constitution to get into it.
That is a really illuminating and, I think, quite inspiring history, for all the setbacks and all the real deep challenges there. I think there are plenty of models for really effective constitution-making in the United States today. I would point in this case to Indigenous nations, who have been engaged in a wave of constitutional conventioning and amending and drafting since the early 1970s and the era of the American Indian movement. When people in Native nations decided to revise constitutions that they wrote in the 1930s as part of FDR’s Indian New Deal, there were some really interesting constitutional experiments going on in those constitutions. Those conventions have been vital and important for those polities.
So I think there is a lot of room to find inspiration. Not every story is Chile. You could think, for instance, of Ecuador—the Ecuador 2008 Constitution, which provided for the first time for the rights of nature, which has actually been upheld by the Constitutional Court of Ecuador. The oil and mining companies tried to get it junked this year with a referendum on whether there should be a constitutional convention. They wanted to rewrite the constitution for a bunch of reasons, but they really wanted to get rid of the rights-of-nature provision, and the people rejected it.
In the rest of this conversation, Yascha and Jill explore whether there is a precedent for America’s current situation, and whether the United States is doomed. This part of the conversation is reserved for paying subscribers…
