>> Carlos Lozada: So it's such a thrill to be here with Jill, who I've only met for the first time today.

I've often been an interviewer or moderator at the Book Festival, but usually when I'm asked to do one, then I have to go and scramble and read the book quickly.

In this case, I was already reading Jill's book because I read all of Jill's books.

So I wanted to just dive right in and ask you, you've written this fascinating history of the Constitution, but it's really focusing on the efforts to change it, to amend the Constitution, which is a story of frustration, of struggle, often of failure to change the document.

So why did you decide to write a history of things that often did not happen?

[Laughter] >> Jill Lepore: Sheer perversity.

[Laughter] I am really interested in theories of how change happens.

And we live in an age where I just really noticed this with my students and with my kids, where their conception of change is largely technological.

They measure change in like which version of the iPhone or which version of ChatGPT they have.

Like, that's technological progress is really just how they understand change.

And, you know, the 19th century theory of change was evolution.

The 20th century's theory really was growth, economic growth.

And the 18th century's theory of change, the enlightenment theory of change was progress.

But they really meant moral progress.

So I kind of really became fascinated with how the idea of amendment embodied that moral theory of change.

And it's in the word itself.

We make amends for the wrong things that we do.

We mend our ways when we have erred.

And I actually just think it's a really beautiful idea, honestly.

It moved me to think about what it meant to invent amendment with the invention of constitutionalism.

So written constitutions are an 18th century invention.

And when you think about it, it's the kind of one of the great ideas to celebrate about the American Revolution at this 250th anniversary is the idea that the government has to write down what the rules are.

And so that the people can hold the governors accountable to those rules.

But if you write down the rules and... the fundamental rules, the other idea of the revolutionary era was you have to be able to fix them if they're not working.

And that idea of fixing, repairing, improving, making amends, mending is the idea of amendment and it doesn't work anymore.

And it kind of never really especially worked.

So I just got, I don't know, I just kind of-- I go off on these tangents and I just got like, I want to find out everything about amendments.

>> Carlos Lozada: So you, you quote the immortal American sage Bugs Bunny and this great-- >> Jill Lepore: He really should be quoted more often.

>> Carlos Lozada: In this great video from the 70s where you should you should all look this up where he sings, ♪ It was intended to be amended ♪ The Constitution.

♪ [Laughter] >> Jill Lepore: And then Daffy Duck runs on stage.

Bugs Bunny is a professor, and he's got the mortarboard in the tassel and the gown, and he's singing this ode to the amendments and Daffy Duck, like, dressed like a vaudevillian, shuffles on stage and says, “amend, amend, amend, amend, amend-a.” So we could do it.

>> Carlos Lozada: Yeah, we should take us on the road.

>> Jill Lepore: We could do.

>> Jill Lepore: And you note how the founders themselves believed that it should be amended from time to time.

That's why they created this mechanism.

Did they realize they were making it difficult to amend or did they want it to be a more straightforward process, or did they mean for it to be difficult?

>> Jill Lepore: You know, it was one of the last things they actually put in the draft.

Like, remember they met in Philadelphia.

It was pretty hot today right here in Washington.

Like they met in Philadelphia starting in May.

And they finished, you know, they were done signing the like calligraphy version on September 17th.

They were so hot in August when by the time they got around to like, what should the amendment thing say?

Like they knew all along.

>> Carlos Lozada: Like an afterthought?

>> Jill Lepore: No, they knew all along there was going to be an amendment article.

But but then it was a math problem.

And we kind of forget that a lot of the Constitution is a math problem.

And these are the people whose math brought you the 3/5 clause.

So, you know, they were not.

We are the first nation to have a mandated census.

We count the people every ten years because the Constitution was aiming to solve the math problem of representation.

This is one of the great inventions of the revolutionary era, is that the people should be represented proportionate to their population, and that was new.

They didn't know and they discussed it like, maybe we should do it by wealth, maybe we should do it by land.

You know, there are a lot of other.

And then they decided to do it by population.

Then they had to figure out this problem, what to do, how to count people who were held as property and not deemed under the law to be persons, anyway, just to say, like the whole thing was kind of a math problem.

And then by the time they get to, well, they figured out the Electoral College and what are we going to do about amendment?

We want it to be possible, but we don't want it to be so easy because we already think it's going to be a hard sell convincing people to ratify this wholly new system of government.

We have to-- People got to be willing to try this thing for a while, kick the tires for a few years before we go in and decide, you know, we know we need snow tires or whatever.

I got lost in my metaphor.

[Laughter] So they want to make it amendable.

They really believe in that.

And the state constitutions have been experimenting with that.

The state constitutions start in 1776.

And it's really just like a Goldilocks problem, you know, not too easy, not too hard.

And the solution they come up with, you know, there were other options on the table, but they come up with that.

It has to pass a two thirds majority in both houses of Congress, and they go to the states.

And three quarters of the states have to ratify.

And that seems hard, but not unachievable in the way that, so impeachment is also a two thirds, two thirds vote, treaty making.

Supermajority is a reasonable, it should be a high bar.

The three quarters of the states didn't seem particularly hard.

Why their math was wrong is that there was there were no political parties when they wrote that article five of the Constitution, and by 1800 there are political parties.

And then when people are voting as members of Congress or as senators in obesiance to their parties, rather than for the country or the best interests of the country, it becomes very difficult to get over that bar.

And in our era of polarized politics, where Congress can't meet a 51, you know, a bare majority, the two thirds majority is completely unattainable.

>> Carlos Lozada: Well, there's one thing that seems to lead to constitutional amendments.

You write that article five is a sleeping giant, and what wakes it up is war.

Why do American wars lead to constitutional amendments?

>> Jill Lepore: Yeah, I wish I had a better answer to that question.

Do you have a theory about this, Carlos?

>> Carlos Lozada: I just read your book.

[Laughter] >> Jill Lepore: Yeah, this is the lazy professor's move.

That's a great question.

>> Carlos Lozada: What do you think?

>> Jill Lepore: What do you think?

[Laughing] How would you answer that?

It is a weird pattern, right?

So amendments have always, in America, just come in bursts.

So one really easy thing to say is, I would suspect that most people in this room do not have in their mind, like a list of the five constitutional amendments they most want, because we've forgotten that it's even a possibility, right?

It's just not... We don't talk about it.

You don't read in the newspaper about different constitutional amendments when I mean, like Biden proposed a constitutional amendment on his last day in office.

That was a Supreme Court restructuring amendment.

But, you know, they're just balloons thrown up into the-- >> Carlos Lozada: Almost like interesting legislation that no one's going to vote for.

>> Jill Lepore: It's just a symbolic act.

There's not like a movement around any of these things.

So part of the reason that they happen in bursts.

This isn't the war question is just that it takes, like George Washington always called the amendment provision a constitutional door that shall forever be left open to the people.

But it's mostly locked.

So eventually something comes along, picks the lock, and then when it's open, people are like, oh yeah, I want to do this and I want to do this.

And they kind of, you kind of push through a few at a time.

But the thing that picks the lock seems to be war, which is to say it's like a just a, a reset, like it requires a whole new political settlement.

So the first ten amendments are ratified all at once.

We call them the Bill of Rights.

They didn't call them that at the time, but they were really the after effect of the Revolutionary War.

Like this set of rights were what people believed that they were fighting for.

They weren't in the Constitution.

They immediately asked for them and they got them.

So that's 1 to 10, 13, 14, 15, our Civil War and reconstruction.

Well, there you can say, well, the southern states didn't have any representation in Congress.

So it was like a one party congress.

>> Carlos Lozada: Really illegitimate amendments.

>> Jill Lepore: And in the southern states often then afterwards said like those were not constitutionally ratified.

>> Carlos Lozada: They had a term for it.

It was, what do they call it?

The something amendments.

It's in the renegade amendment.

>> Jill Lepore: Yeah, yeah, yeah, yeah.

And then the next sort of big wave is the Progressive Era, which is right around World War One starts just before the war, 1913 to 1920.

There's four more.

There's four amendments passed in the 19th between 1961 and 1971.

I just think that, these were all wars in which there was a draft.

So we have had wars since 71, but the effect is not across the population in the same way, the cost of war in an age without the draft is borne by the poor.

So it just doesn't have the same, our entire political order is thrown up, kind of for-- >> Carlos Lozada: The sense of having to reset is gone.

Now you've tracked amendments throughout American history, and one of the one of the parts I love about the book is that every few chapters there's like a list of all the amendments and you know, what party proposed them and what they were about.

And you sort of see the evolution over time and how they grow over time.

What are the issues that have most consistently attracted sort of calls for amending the Constitution?

>> Jill Lepore: Making amending the Constitution easier is an evergreen.

>> Carlos Lozada: Ironically.

>> Jill Lepore: There haven't been a lot of calls for that lately.

The Progressive Era was just riddled with those, you know, all the time people were trying to get, make it easier to amend the Constitution.

Reforming or later abolishing the Electoral College.

I think that's first introduced really formally in Congress.

[Applause] Round of applause.

[Applause] Yeah, we could do a little public opinion survey here.

>> Carlos Lozada: You just did.

>> Jill Lepore: Yeah.

I think that's first introduced in 1803.

So really early.

>> Carlos Lozada: It's right away.

>> Jill Lepore: Really early on.

Right.

Because the northern states understand that the Electoral College favors the slave states because of the 3/5 clause.

So their obvious proposal is let's just get rid of that.

What even is it?

Even then people were like, what even is this again?

>> Carlos Lozada: That hasn't changed.

>> Jill Lepore: That hasn't really changed.

And the Electoral College abolition, I spent a lot of time on this in the book because in 1969, it passes the house and is defeated in the Senate by, I think, six votes.

And it is one of the narrowest.

80% of Americans wanted to abolish the Electoral College in 1969.

So presumably if it had passed the Senate, it would have achieved ratification.

It might have been a close battle.

I don't know who the interest might have, might have emerged.

But that's one of the stranger pieces.

But, you know, it's interesting that how the amendments that have been achieved have generally taken decades, decades and decades.

It requires a kind of across generations commitment.

I mean, obviously, ending slavery requires generations and generations of struggle.

The 19th amendment is passed and ratified in 1920.

It's essentially first proposed by women in 1848, arguably first proposed by women in 1776.

So it just takes a very, very long time to change the Constitution.

>> Carlos Lozada: You quote letters from Abigail Adams to John Adams, and one of the things that I love about the book is that we all look back to Philadelphia in 1787 and you know, what the weather was like and all that.

But really, you chronicle all these parallel gatherings of, of Native Americans, of, of Black Americans, of women's groups that are convening informally and, and petitioning for change to the Constitution.

In some ways, this is the heart of the book.

How did those efforts eventually inform kind of the more formal attempts to change the Constitution?

>> Jill Lepore: Well, I think you can find interesting patterns.

So, for instance, there were more than 200, historians refer to them as Black conventions.

They were called at the time, Colored conventions in the 19th century, beginning in 1829, huge gatherings of elected delegates who met in all of the free states, in major cities and statewide and national and municipal, essentially constitutional conventions at a time when Black men and women could not vote anywhere in the United States, and had no part of the revising of state constitutions.

So across the 19th century, states are holding constitutional conventions pretty much constantly.

Because new states are entering the union, they need to write a constitution.

And then every time they do, they come up with some idea.

And the older states are like, wait, we like that thing they're doing in Michigan.

Let's have a constitutional convention or... >> Carlos Lozada: Even like copying each other.

>> Jill Lepore: Yeah, they're all copying.

They have like it's a huge, big printing industry to publish these manuals of constitutional ideas.

People are just, it's this big explosion of constitutional ideas.

But women and Black men and native people and Chinese immigrants, none of these people have any representation at any of these state constitutional conventions.

So they start holding their own, women hold their own conventions, Black men hold their own conventions.

Native nations, beginning in 1827, hold their own constitutional conventions.

And the thing that's so fascinating to me is they leave behind... They always print their proceedings.

I mean, it's just that's kind of a world you would have-- You would meet and you'd print your proceedings.

And they are in the sense that we discuss like they are failures, they are failed amendments.

Generally what they're doing is saying, we want this in the Constitution or we don't like this in the Constitution, but we don't think we-- Like historians even, but certainly judges don't think about those as constitutional texts.

It's a huge body of evidence of the constitutional preferences of all the people who couldn't vote.

Like, how is that not part of our constitutional history?

So, yes, I'm looking at failures, but actually I'm just trying to open that constitutional door to the broad body of evidence that lies and each of these rooms like this.

It's hundreds and hundreds of people getting together and arguing about the Constitution.

None of those proceedings has ever been quoted in a Supreme Court decision.

Like as if these things didn't happen or these people didn't have constitutional ideas.

So if we want to have a better constitutional future, like we actually need a better constitutional past.

>> Carlos Lozada: Well, thanks to this book, that is part of the history now.

Let's stick with the states for a second.

One of the paradoxes of the book is that it's so much of it is about how hard it is to amend the Constitution.

Like the, the, the American Constitution, the nation's constitution.

But the states were like, amending like crazy, like, all the time.

You have this Tocqueville quote saying that like, nowhere is-- I'm going to mangle it, but something like nowhere is the law more changeable than in America or something like that, because, you know, they just they're constantly changing the Constitution.

So is it simply a procedural, technical question that allows for all the change to happen in the state constitutions versus the federal level, or is there something about the states versus the nation that allows for that change in one case and precludes it in the other?

>> Jill Lepore: That's a really good question.

Well, it's both.

There's some of the same forces apply, but then some of the forces are different.

I mean, in the States where people are having these constitutional conventions constantly and where the Black conventions and women's conventions and Native nations, people just really believe in convening, like it is-- You're not going to the movie theater.

There's nothing on TV.

You can't sit by the radio.

We're going to go to a convention.

Everybody goes to conventions.

There's temperance conventions, like just, you know, vegetarian conventions.

Everybody goes to-- mechanics conventions.

Everybody goes to conventions.

This is partly what Tocqueville is talking about, the associational American like, people just like to get together and hang out, and they like to argue about stuff.

And the convention becomes and a lot of commentators, including Tocqueville, say it is like the visible embodiment of democracy.

Like, you can see that the people are sovereign because they're always gathering together and making the laws all over again, like that.

Just that act is about like we are, we are the people, and we're going to change the laws again.

And that we don't do that anymore is like a huge part of the problem.

Like the last time a state had a regular constitutional convention in the United States was Rhode Island in 1986.

Like a lot of people don't know that states can just have a convention and amend there.

But like, we just don't trust one another to sit in a room and not, I don't know, take out guns, whatever it is people are afraid of.

So there's just a difference.

But that doesn't explain the federal piece.

The federal piece is there have been a lot of explanations, but I think what happens is that up until the time of the Civil War, there are a lot of requests to have constitutional convention, one of which is to get rid of the Electoral College.

But sectionalism develops so quickly.

You know, it's by 1832 that South Carolina is about to secede over the tariff.

Yeah.

So I'll give you a little South Carolina history.

No one is willing to, actually, no one in Congress is like, they just don't-- When the states apply to hold a constitutional convention, Congress is like, we can't even because we know by 1833 Congress has passed a gag rule.

You cannot even read a petition about slavery on the floor of Congress by 1833.

This is what, like John Quincy Adams spends the rest of his life trying to overturn, to be willing to even speak the word abolition in Congress like there is no free speech.

This is where the free speech party comes from.

This is where the slogan “free speech” comes from is, is from the attempt to overturn the gag rule.

Like, there is the way in which, like we think we couldn't possibly sit down and argue about stuff.

The thing they couldn't-- The reason they could not meet to have a constitutional convention was they just, the powder keg, that was the dispute over slavery.

So then by the time you get to the Civil War, I think it is very reasonable to think of the 39th Congress, which meets starting in January, December, January 1865, as a constitutional convention, because they write the 14th amendment and the 14th amendment is effectively a new constitution.

I mean, it's just like a wholly new arrangement.

But it's just northern, you know what I mean?

It's just the reason they can do it is Confederates can't hold office.

So I think if we counted that as a constitutional convention, we'd probably have a more accurate sense of the history.

So then you're like, okay, but then what about since then?

Why did-- You know?

And then it's like, well, the country got through a century without having them, like then there's just the inertia of it.

And this is what Madison always warned about.

James Madison, who wrote the first draft of the Constitution and drafted what became the Bill of Rights.

Like, he's like the problem with the Constitution writing it down is that the older it gets, the more people will venerate it, and the less willing they will be to revise it.

And so therefore, they will lose their sense that it is their constitution to revise.

>> Carlos Lozada: You've said like 15 things that I want to follow up on.

So I'm going to stick with the Civil War for a second.

You spend a good bit of time in the book on the fate of Jefferson Davis after the war.

Why is that important to the story of the Constitution?

>> Jill Lepore: You know, I think it might have been compensating for the fact that I never knew the story of Jefferson Davis.

>> Carlos Lozada: She was just telling me that whenever she wants to learn something, she teaches a class on it.

>> Yeah.

>> You know.

[Laughing] >> Jill Lepore: I was like, whatever happened to Jefferson Davis?

This was right about the time of the Trump trials.

So I became really interested to understand how I really became really interested in the Confederate Constitution, which is somewhat understudied and really interesting.

It's definitely understudied.

And it is it is genuinely fascinating.

But I became really interested in how the 14th amendment, which 14th amendment establishes birthright citizenship and guarantees the equal protection of the laws, to all persons.

And the thing that we forget, I don't know, I forgot that the 14th amendment does is also bar people who have been involved in an insurrection against the Constitution from holding federal office.

Former federal officeholders.

>> Carlos Lozada: Does it bar them?

Anyone who's waged insurrection or anyone who had sworn an oath to the Constitution?

>> Jill Lepore: Who had sworn an oath to the Constitution.

And held an office.

>> Carlos Lozada: So, like it holds up like your oath to the Constitution as like the thing you're really violating?

>> Jill Lepore: Yes.

You haven't violated.

It's not treason.

It's an insurrection against the Constitution, which you swore.

>> Carlos Lozada: To which you swore an oath, right.

>> Jill Lepore: Yeah.

And so that whole thing is bound up with what to do about the problem of Jefferson Davis.

So when the South fell, Davis tried to go to Mexico.

He tried just to escape.

And Lincoln was like to his generals, it'd be really good if he would just go to Mexico.

[Laughter] >> Carlos Lozada: Oh, to, like, not deal?

>> Jill Lepore: To not deal.

What are you going to do with him?

What are you going to do with him?

And a lot of northerners wanted him hanged.

And a lot of Black Americans wanted him hanged.

And, you know, I think the Philadelphia Inquirer writes an editorial at one point is like, if he is not a traitor, there is no meaning to the word treason anymore.

And so it's a very complicated legal argument about what to do with Jefferson Davis.

I'll just say one thing about it, because we could get mired in, this is really interesting.

But Jefferson Davis's defense was going to be-- >> Carlos Lozada: There was a trial.

There was going to be a trial.

>> Jill Lepore: About to be a trial.

And his attorney said, his attorney was going to argue secession is constitutional.

The Constitution is just a pact.

You can leave... Any state can leave the Constitution can leave the Union whenever it wants.

Therefore, you can secede.

Therefore, Jefferson Davis was a citizen of the Confederate States of America at the time the war happened, and therefore did not commit treason.

>> Carlos Lozada: Because he can't.

>> Jill Lepore: Because you can't, you can't commit treason against another country.

>> Carlos Lozada: A different country.

Right?

>> Jill Lepore: So the Union government was like, it would be really bad to litigate whether secession is constitutional.

That's what we just lost 750,000 people's lives to.

So there's a lot of like, we don't want to try and we want to try them.

And then because the laws have changed in the Reconstruction South, the jury that they assemble is a mixed race jury.

It's like the first mixed race federal grand jury and the first mixed race trial jury.

And it's such a huge thing.

They take all these photographs of these jurors and it sort of feels like it's going to be a real moment.

Anyway, the reason it matters for the-- My argument is that debate about who is a citizen and whether you can leave this country by act of secession, it casts a huge shadow over the entire 14th amendment debate.

>> Carlos Lozada: You spend a good deal of time in the book on the origins and the impact of originalism, and both how it's used to induce change, but also to prevent change.

How do you see the story of originalism as intersecting and affecting this story of constitutional change?

>> Jill Lepore: I think that, one of the things I was trying to do in the book is actually provide a history of originalism and in the context of a larger history of constitutionalism, because one of the things, there are many brands of originalism.

There are many different types of originalists, and the word often is used to mean many different things.

But one thing that some originalists essentially say is that originalism is constitutionalism, that any other form of constitutional interpretation is anti-constitutional or unconstitutional, that to not be an originalist is to defy constitutionalism.

And like as a matter of the historical record, that's that's a false proposition.

Originalism is not original to the Constitution, nor is it continuous across history, right?

The word is coined in 1980.

The movement itself is kind of founded in 1971.

There are many instances in the history of constitutional interpretation by the Supreme Court in which people point to the origins of certain words and meet their original meanings and understandings.

But the philosophy of originalism as a way to interpret the Constitution is a very recent history.

It cloaks itself in the authority of history, both by insisting that it is original and by insisting that it is history.

And my point about originalism is it's there are many good faith ways to defend originalism as a mode of interpreting the Constitution, but it is not a form of historical inquiry that, in my mind or in my experience, is recognizable to academic historians because it is extraordinarily exclusive.

An originalist interpretation of the Constitution requires that you look just at a handful of documents.

Like that is the rule.

It is a bounded set of documents.

So Robert Bork was asked at one point, you know, if George Washington had written a letter to his wife Martha, explaining what direct taxes are, would that be admissible to your, body of admissible piece of evidence?

And he was like, just absolutely not.

That's not-- it's not Madison's notes.

It's not the Constitution.

It's not the notes of the ratifying convention.

And it wasn't in the Federalist Papers.

Therefore, it lies outside the world of the historical record that matters.

And I think when you-- first of all, there's just like there's no historian who could say, I'm only going to look at five sources, and now I'm going to go home and watch “Slow Horses.” [Laughter] You'd be like, that's not okay.

You actually have to do some more research.

So I really care about the original text and meaning and understanding of the Constitution.

But I think to do that in fidelity to the people who lived in that period and the people who lived now requires looking at everything you can possibly find.

So I'll just give you one example, because this is my favorite example.

I once wrote a book about Benjamin Franklin's sister Jane.

>> Carlos Lozada: It's very good.

[Laughter] >> Jill Lepore: It's called “Book of Ages.” And when the 55 delegates went to Philadelphia in May for the Constitutional Convention, it's like if you've been on a jury and you're sort of sequestered, right?

You're really not supposed to talk about it with anybody.

You really you're not supposed to you really can't talk about, you know, you take an oath to not talk about.

So they were sequestered for the whole constitutional convention.

They nailed the windows shut.

Like just people really want to know what was going on.

But they took a vow of secrecy for 50 years.

That's another reason originalism isn't original, because if you wanted to interpret the Constitution based on what those guys said that day, that summer, you couldn't know for 50 years.

So they really kept the vow.

Anyway, Benjamin Franklin's sister Jane writes him a letter from Boston saying, you know, I hear you... You've gone down... She's very funny and she's very wry, and she's very sarcastic and she says, you know, I hear you and some very many wise men are gathered in Philadelphia to write, to write a whole new system of laws for the rest of us.

I just hope that you remember one thing: It's quite important to remember to beat your swords into plowshares, quoting the Bible.

And if that were a phrase that were subject to the kind of scrutiny that every whisper of Alexander Hamilton in The Federalist Papers is subject to, I think we would, she says, I want you to keep in mind peaceableness.

To me, that is a meaningful document for interpreting every part of the Constitution, that there is a part of the population that has been vulnerable to a kind of physical tyranny.

A lot of women in Boston were raped at force of arms, at the tips of bayonets.

She had lived through the Revolutionary War.

Women were really vulnerable to gun violence.

In a way, we would talk about it as gun violence.

They didn't talk about it that way.

You know what if we really take seriously that just because she couldn't vote and she couldn't be a delegate to the Constitutional Convention and couldn't vote for any of those delegates, that she had constitutional views and that they count.

And that's the thing that drives me a little batty about the original, like the idea that originalism has that kind of the authority of history.

You can say it is a defensible mode of judicial interpretation.

It does not have the authority of history.

>> Carlos Lozada: I have one more question.

And there's a couple of mics here so you can start lining up to ask your questions of Jill.

And so you write that "We the People" is the most richly amended phrase in the Constitution.

So now that you've written this history, which is incidentally called "We the People."

What does that phrase mean to you?

Just a softball there at the end, yeah.

>> Jill Lepore: I still find it really powerful.

You know, I am still the Catholic kid who had to memorize the Apostles Creed like it is creedal to me.

And I think it's a tragedy of the left that is somehow a naive thing to say.

I remember being very moved when I read-- So in September 17th of 1987 was the 200th anniversary of the signing of the Constitution.

And on that day, Robert Bork was in his Senate Judiciary Committee hearings.

So it was this whole kind of big, intense thing was the bicentennial of the Constitution and originalism was making kind of its big foray in a kind of bid for persuading the public.

And Thurgood Marshall, who was the first African American Supreme Court justice, he'd been appointed by Lyndon Johnson in 1967, he argued Brown v. Board of Education In 1954, he founded the NAACP Legal Defense Fund in the 1930s.

Thurgood Marshall was asked in 1987, how are you going to celebrate?

What does “We the People” mean to you?

How are you going to celebrate it?

And he said, “I declined the invitation to celebrate the Constitution as it was written 200 years ago, because it was not a perfect thing and it was not written by perfect men.

But I would happily accept the invitation to celebrate the 200 years of struggle to realize the promise of those founding words.” [Applause] >> Carlos Lozada: So we're just going to kind of pop back and forth.

There's a lot of people and not a lot of time.

So succinct questions.

Phrase your statements in the form of questions, please.

Sir, kick us off.

>> Thank you, Miss Lepore.

I came all the way from California to, to hear you.

And having written a book about Frederick Douglass where the Constitution was a major issue with William Lloyd Garrison, who said that the Constitution was an agreement with death and a covenant with hell.

I would like to ask you, based on the fact that Douglass himself, in relating to the Constitution, found solace in “We the People” in the preamble.

How do we as citizens maintain our faith in the Constitution when all the participants in the creation, in the execution of the Congress of the Constitution, the president, the US Supreme Court, and the Congress have all abdicated their constitutional responsibility.

How do we, the people, maintain our faith in a document whose meaning has been ignored, defied and eviscerated by its exponents, who swore an oath to it?

You may have the answer in your book, [Applause] but I need to have faith.

I, like Douglass, I need to have faith.

And maybe your book offers that it is in.

But right now I'm in despair.

>> Jill Lepore: Thank you.

No, it's a beautiful question and beautifully stated, and I wish we were in a classroom and I could say, what's your answer to that?

[Laughter] You know, I wrote the book because I think I was looking for that, honestly.

And in a way, this also ends, you know, Carlos's initial question, like, why read about all the failures is because it's all the striving.

It's the determination.

You know, when you think about Douglass, Douglass sets out as a Garrisonian and subscribes to Garrison: You know what?

Damn the Constitution.

And then he says, you know we actually need the Constitution.

Why say the Constitution is not on our side?

Why just say the Constitution is on our side and we can fight for the Constitution that we believe in.

And you got to figure, like, if a man born into slavery, you know, who frees himself and educate... like, like if he can have faith in the Constitution, how can we not?

I think I mean, like, that's one of the places that I look.

Exactly where you begin is where I look for that kind of hope.

Or, you know, you think about the decades and decades of struggle to do simple things like achieve direct election of the Senate.

The US Senate used to be elected by state legislatures because nobody believed the people were wise enough to elect the Senate.

That took so long, and yet people stuck with it.

So the sense that, our Constitution has been degraded, that it is daily violated, that it is used and deployed in the most cynical ways, is truly a staggering challenge for faith in the idea of the Constitution.

But that's why, in a way, I've really tried to elevate this, you know, what I call the philosophy of amendment, and also try to promote people's constitutional imagination and say we can actually have the Constitution we want, or we can force our governors, the people who we chose to rule us to honor it.

And I go by a highway overpass at least once a week where neighbors, strangers have gathered on the overpass to drape over its edges a bunch of bed sheets of different prints and colors stitched together, on which they've painted with some old household paint.

Save our democracy, uphold our Constitution.

And they are out there in the snow, in the rain, just to be together, just to say that.

So I think that's an incredibly powerful moment.

I think it's possible that this 250th anniversary is an opportunity for people to try to come together around.

Just a basic commitment to working through disagreement about fundamental questions.

We are at an era where there are like five guys in Silicon Valley who say that they are about to usher us into a new era for humankind, and we have no role whatsoever in that new role for humankind.

If there's ever a time to revive a spirit of constitutionalism and to regain popular sovereignty over the Constitution, it is now.

>> Thank you so much.

[Applause] >> Carlos Lozada: Sir.

>> Alright.

Do you think we've either redirected or abrogated our amending energy to getting five votes on the Supreme Court?

>> Jill Lepore: Yeah, we did.

And, you know, people really point to FDR as getting that going.

In 1935, when the Supreme Court was ruling that the New Deal was unconstitutional, a lot of FDR's advisers said, okay, we have to constitutionalize the New Deal we could get-- We need like five amendments.

There had just been four amendments in the 19 teens.

The Child Labor Amendment had passed Congress in 1924, and FDR was like, there's no way.

You know, my wife, Eleanor, she's been working to try to get that child labor amendment ratified since 1924.

And what FDR called the Millionaires League, that is to say, the manufacturers of textiles, especially southern textile owners, just organized an incredible campaign throwing money to defeat the Child Labor amendment.

So FDR was like, we don't have the time, the country is in crisis.

And also, it just takes like only about $1 million to defeat a constitutional amendment.

We have to win the court.

And he takes a different tack.

And I think, you know, we could we could second guess that or not.

But then there's a moment where, you know, by the late 30s when the NAACP is founded, you know, they look to FDR and they're like, well, FDR has done nothing for us.

And also we do not have the votes to get a constitutional amendment.

We have to go to the court.

And that's, Thurgood Marshall's and everyone else who works with him, that's their strategy.

And they don't have another option.

FDR had another option.

He had the vote.

He could have fought that as a political battle.

But Black voters can't vote in most of the country in the 40s and 50s.

Marshall has to go to the court, right?

And then he succeeds.

And that success is phenomenal.

But then both liberals and the civil rights movement are like, let's just keep going to the court.

This is working for us.

And all the amendment proposals in the middle decades of the century are conservative amendment proposals.

And the conservatives don't have the votes like the day that Brown is decided, James Eastland of Mississippi introduces a, you know, right to segregated schools constitutional amendment like the right just keeps trying to fight the Supreme Court with constitutional amendments, and they keep failing.

So eventually they give up on constitutional amendment, too.

And they're like, you know, we got to do we got to win the court.

And you just kind of follow that storyline and you get to like, that's why these Supreme Court appointments are crazy.

Like it shouldn't be such a big deal, but it's the only lever that anybody has.

And that's just a deformity, right, as you point out, it's kind of everybody gets us there.

Like, that's not like a one side or if anything, it's more the left that chooses and decides upon that course of action and for good reason.

Like to protect minorities like, you know, would a same sex marriage, marriage equality have been achieved without the court?

Would that have made it as a constitutional amendment?

I think you're like, you know, you work at an advocacy firm that is like LGBTQ stuff and you're like, should we go for a constitutional amendment or go for the court?

The court looks pretty good.

And the thing is, if you run the play for a constitutional amendment and you lose, you really lost.

If you lose in the court, you can go back and back.

But the effort to get a constitutional amendment going to lose is to is to be defeated.

>> Thank you.

[Applause] >> Carlos Lozada: You were right about the-- >> Jill Lepore: I know it's really crazy.

Okay.

>> In the first few months of this current administration, the two words that pervaded the media day in and day out was constitutional crisis.

You don't hear that anymore.

What do you think precipitates a constitutional crisis?

And the second question I have is what was in the mind of the Founding Fathers when they specified lifetime appointment of the Supreme Court judges, which seems to fly in the face of all common sense and is creating major, major, probably the number one problem in our political system today.

>> Jill Lepore: There was a lot of debate about that in a lot of the states.

I'll just answer the second part of your question first.

A lot of the states experimented with term limits for judicial appointments.

Constitutional amendment proposals to change the structure of the Supreme Court or impose term limits are very common.

But it is about judicial independence.

And I think there's a very strong argument in defense of it.

It wouldn't be as big a deal and would be a really important form of, of independence for the courts if the rest of the system hadn't become so deformed.

So I think, I think, I think there's like very reasonable mixed views about, about on that, on that question.

The first question was about-- >> Constitutional crisis.

>> Jill Lepore: Oh, constitutional crisis.

Honestly, I think that, there's just too many crises going on for people to focus on that term.

And I also think there's a real case to be made that the language of crisis serves the crisis and not its solution.

and, you know, we're looking at this, these great usurpations of power through declarations of emergency, through the language of emergency.

Washington needs-- it's an emergency in Washington.

Therefore, the National Guard must be there.

It's an emergency at the border, therefore, ICE can do these... Like I think that there's maybe a reason to think about ways to talk about constitutional possibility without talking about crisis.

And I'm going to make one small intervention.

It's kind of a rule I have that I do not let-- It's just a habit.

Men tend to jump up to the line before women do.

And then by the time we've run out of time, the women are at the front of the line.

So I'm going to ask this young woman here to come to the front.

[Applause] >> Carlos Lozada: You're so right.

>> Jill Lepore: It happens all the time.

[Applause] >> Thank you.

And very meaningful.

I just graduated law school, so really appreciate it.

>> Excellent.

>> Thanks.

[Applause] In the Equal Rights Amendment, there's a self-imposed deadline, where the drafters said this amendment shall not be effective if it is not passed by this date.

Can you speak to the potential utility of self-imposed deadlines in amendments or whether they're self-defeating?

>> Jill Lepore: That is a great question.

And there's, as you, no doubt know, there's a lot of litigation on this, on this question whether it's even constitutional for there to be deadlines.

It was a 20th century invention.

And is just generally not a good idea.

On the other hand, if you're going to get an amendment ratified, it's usually going to happen fairly quickly.

There's not a lot of amendments where the ratification was drawn out and succeeded.

The question, is it a bad idea?

It's a bad idea.

>> Carlos Lozada: To impose deadlines.

>> Jill Lepore: I think the deadlines are a bad idea.

Yeah.

It's hard enough without the pressure of the deadline.

Yeah.

Thank you.

>> Carlos Lozada: Do we have time for one more?

[Applause] >> Carlos Lozada: I think this is our last question.

>> Sounds fantastic.

So I asked this question as a Hungarian, and let's say we're able to change the Constitution to make it easier to amend, in that world where we now live with increased democratic backsliding, with the degradation of democratic norms, how do we prevent people who stand against democratic ideals from changing our Constitution in a way that takes away the protections that already exist?

Or would changing our Constitution to make it easier to amend already require such a massive change in our political culture that we'd be safe from that kind of change?

>> Carlos Lozada: It's to be careful what you wish for.

>> Jill Lepore: Yeah, no, that is the question.

That is just like the really important question.

If anyone were really considering doing any of these things.

This is just a random book, but it is a really important question.

And historically, the left has always feared a constitutional convention or opening the constitutional door even because of just the likelihood... There was a big effort in the 60s, another big effort in the 70s to hold a constitutional convention.

You know, there was Richard Rivera wrote in The New Yorker, if they succeed, this was in 1979.

You know, they're going to bring back slavery.

Like, they're just really a lot of fear of what would happen at a constitutional convention.

And it's not entirely ill placed.

On the other hand, compared to what, compared to what we have now is people don't feel like this is our constitution.

I mean, I don't care who you are politically.

It doesn't feel like we wrote this Constitution.

We endorsed it, you know, we've ratified it.

So I also don't think like we have the musculature to be having a constitutional convention.

Like, you can't start lifting 20lb dumbbells or whatever if you haven't got out of bed in six weeks.

Like we haven't been out of bed in many years.

[Laughter] Really we're just lying there.

Like how many people have sat in a room and argued about fundamental law with people that you disagree with?

Nobody.

You know who does that?

Public schools, K through 12 public school rooms.

It's like the only place in this country where you sit in a room and you argue with people that you disagree with, and you have to, like, be still friends at lunchtime and, you know, borrow that apple pie from the kid who, who doesn't want the taco.

Like, that's that's the only place where we come together.

And public schools are just being so wildly undermined right now.

So unless we rebuild a civic society where people do gather and argue about things, who are we to have a constitutional convention?

We can't even look each other in the eye.

But that doesn't mean we can't, you know, get out of bed.

My thing is like, put on at least your sweatpants.

[Laughter] You know what I mean?

Like it's time.

[Laughter] >> Thank you so much.

[Applause]