Watch and Learn - Jill Lepore - “We the People” & Understanding How the Constitution Is Meant to Work

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Professor

>> Mr. Stewart,

>> Mr Stewart

[Applause]

Applause

>> what are you trying to do to me?

>> what are you trying to do to me

This is Yeah, I'm going to show you

This is Yeah I'm going to show you

something. There was 600 pages. Look at

something There was 600 pages Look at

the font. What do you got? I'm an old

the font What do you got I'm an old

man. I had to pour over this with a

man I had to pour over this with a

magnifying glass and a microscope just

to be able to see. And I only got up to

to be able to see And I only got up to

reconstruction.

reconstruction

You know what? Can I tell you why?

You know what Can I tell you why

Normally, I get the books from the

Normally I get the books from the

authors that are coming on the show and

they're dry and I can skim them.

they're dry and I can skim them

>> Your writing is so vivid and so

interesting that I actually had to pay

attention

and it slowed me down.

and it slowed me down

>> I'm really sorry. I'm really sorry

>> I'm really sorry I'm really sorry

there. I I could do an alternate account

there I I could do an alternate account

that's just the dry version. do not okay

that's just the dry version do not okay

>> because what what I learned

it's fascinating to me the process of

just writing the constitution

was far it was this 20 year

meeting after meeting after meeting

after meeting which I we think of it as

something that is almost

divine inspired on mount whatever and

handed down to people it's not it was a

series of like zoning board meetings.

series of like zoning board meetings

>> Yeah, it really was. It took a long time

>> Yeah it really was It took a long time

to figure out the whole premise of

constitutionalism. I mean, we we think,

constitutionalism I mean we we think

you know, next year we're celebrating

you know next year we're celebrating

the nation's 250th anniversary because

we're marking the anniversary of the

Declaration of Independence, 1776, but

Declaration of Independence 1776 but

that's also the year the first

constitutions were written in in what

was the United States. And it's not till

was the United States And it's not till

1787 that we get the Constitution that

we haven't inherited as the federal

constitution. But all those years in

constitution But all those years in

between are just people like what if we

didn't have a governor or you know what

if we elected our state supreme court or

what if we granted the right to vote to

everybody. Like people are just debating

everybody Like people are just debating

and trying out different things or what

if we let the people write the

constitutions? What if we wrote them

constitutions What if we wrote them

ourselves but told them they had to

agree to them. No, that's not going to

agree to them No that's not going to

work. Like it's just a series of

work Like it's just a series of

experiments,

experiments

>> right? And by the way, not on Zoom. like

>> right And by the way not on Zoom like

these guys

like everything is like what if we uh

did this and then they put in 50

amendments and did it and then like

they'd send a guy in a wagon and it

would take him like eight weeks to go

like yeah they said no

>> there was there was one time there was a

constitution maybe it was Pennsylvania

where there was a draft

>> have you not read this

>> no I forgot about how far did you get

>> I forgot all there was a a state

constitution that was written and then

it went into the towns for ratification

but by the time they called for the vote

there hadn't the the printed copies of

the Constitution hadn't reached the

towns yet. Like it's actually just

towns yet Like it's actually just

really hard to travel. Like think of

really hard to travel Like think of

Western Pennsylvania, Western

Western Pennsylvania Western

Massachusetts. Sure.

Massachusetts Sure

>> It just takes a long time to get around.

>> It just takes a long time to get around

and and and also there was a discussion

as as you lay out of who was even

allowed to weigh in and should it be uh

property owners or just white gentry or

people who paid enough uh in certain

taxes uh and and all these different

things. But it

things But it

what it does is it I don't want to say

humanizes but it's a product of

administration

and and it was almost a bureaucratic

process. it whereas I viewed it more as

process it whereas I viewed it more as

a moral process previously

>> and I think it was infused with morality

but even then boy they're very aware

of slavery's uh shadow

and and and

they make no bones about it.

they make no bones about it

>> Yeah. I think it's it's far more sort of

>> Yeah I think it's it's far more sort of

contingent and accidental than we

probably carry around in our head the

idea of you know there was this bunch of

guys in knee breaches in Philadelphia

and the sun came through a window and

George Washington said tada and there

was the constitution and it's like there

is that moment right there famous

speeches at the end where you know

Franklin says like I consent to this

constitution sir because although I

don't think it's the best it's the best

that we have and you know there is that

there are a lot of like iconic moments

in the history of the Constitution, but

in the history of the Constitution but

there's just a mess all before it that

involves a lot of things like

>> like people who are enslaved sending

petitions to their state legislature

saying, "Oh, when you're writing the

saying Oh when you're writing the

Constitution, by the way, please end

Constitution by the way please end

slavery. It is completely inconsistent

slavery It is completely inconsistent

with the philosophy on which this

country is being founded." So, like just

country is being founded So like just

I wrote the book because I just wanted

to recover this like much messier, more

to recover this like much messier more

contingent,

contingent

like a lot of agitation. like there's a

like a lot of agitation like there's a

bureaucratic part of it but then you

know these guys are meeting in

conventions and like at the time they

called everybody who was agitating who's

not in the constitutional conventions in

the states and in Philadelphia the

people out ofdoors and it's like we are

we are the people out of doors

>> we are all out of doors out the other

thing is there are a lot of women's

conventions

>> who get together and they draw up

>> their own things and and they talk about

how this constitution I I thought

there's a really interesting

uh uh Aryan here where you talk about

the protection of women and sort of they

discuss it as literal rape as though

because British soldiers who had been in

there and had been quartered in uh uh

Americans houses would and so they they

viewed this as a way of protecting women

and viewing the country in that same

way.

way

>> Yeah. Yeah. There's this whole I mean

>> Yeah Yeah There's this whole I mean

the reason we have like Lady Liberty or

you know there's also Britannia, right?

you know there's also Britannia right

that we have these allegorical women

that represent the nation. There is a a

that represent the nation There is a a

way in which in the in the revolutionary

era women were always figured as the

victims of British oppress oppression

allegorically like the rape of America

>> right

>> by parliament is this like the most

popular woodcut of the time or engraving

of the time. But there also was a lot of

of the time But there also was a lot of

rape that women dealt with during the

revolutionary war as is the case in all

wars, right? And so

wars right And so

>> as a weapon of war weapon war, right?

>> as a weapon of war weapon war right

And so when you read, okay, so there

And so when you read okay so there

were no women at the constitutional

convention, but all those guys had wives

convention but all those guys had wives

and sisters and mothers and daughters

who were writing to them and expressing

their views. Like one of my favorites is

their views Like one of my favorites is

>> Benjamin Franklin's sister who writes

who writes to his writes to Franklin and

says like,

says like

>> "I hope while you're down there in

>> I hope while you're down there in

Philadelphia with those wise men." She's

Philadelphia with those wise men She's

being a little bit ironic,

being a little bit ironic

>> right?

>> right

>> Uh I I hope you remember to turn the

swords into pl turn the swords into

plowshares. I'm not down with like uh

plowshares I'm not down with like uh

celebrating war in your new code of

laws. I

laws I

>> I thought uh uh Adams uh writes to his

wife.

wife

>> Yeah.

>> Yeah

>> He gets a little

>> Yeah.

>> Yeah

>> cheeky.

>> cheeky

>> Yeah. He's a bit of a git.

>> Yeah He's a bit of a git

>> He's a bit of a git, but he does he he

>> He's a bit of a git but he does he he

almost in some ways make because she's

very clearly pushing for uh I guess what

you would imagine to be maybe not the

rights. I I don't know.

rights I I don't know

>> Yeah. Well, she says look like all men

>> Yeah Well she says look like all men

would be tyrants if they could. That's

would be tyrants if they could That's

the principle on which the country is

founded, right? Like that's right. Like

founded right Like that's right Like

like power power corrupts. So we have to

like power power corrupts So we have to

have checks and balances. We have to

have checks and balances We have to

write down our laws that limit the role

of government and document the rights of

the people because left to left to

nature all men would be tyrants if they

could. So she's like also husbands are

could So she's like also husbands are

also going to be tyrants. So we need to

also going to be tyrants So we need to

have rights. Please don't forget to to

have rights Please don't forget to to

grant rights to women. And he writes

grant rights to women And he writes

back you know as to your new code of

laws. Madam I cannot but laugh.

laws Madam I cannot but laugh

>> Yeah. Yeah,

>> Yeah Yeah

>> I bet she wanted to hit him in the face

with a frying pan.

with a frying pan

>> She writes to her friend Mercy Otis

Warren who's like, "Let's What about if

Warren who's like Let's What about if

we wrote a petition to Congress, like

we wrote a petition to Congress like

let's do this together,

let's do this together

>> right?"

>> right

>> And I I found that really tantalizing.

>> And I I found that really tantalizing

I'd never come across that letter. I

I'd never come across that letter I

always Everybody knows the kind of

Abigail Adams letter to John that

exchanges.

exchanges

>> Everybody No, Harvard professors know

>> Everybody No Harvard professors know

that. No, here's here's what everybody

that No here's here's what everybody

knows. The founders created three

knows The founders created three

co-equal branches of government and then

there was Vietnam. like nobody has any

there was Vietnam like nobody has any

idea about any of this. That's I think

idea about any of this That's I think

that's the point and the point is there

is a danger in not knowing this

>> because it allows us to make

presumptions and assumptions that that

lessen the work that we have to do to

make change. You know, you talk a lot

make change You know you talk a lot

about this in terms of amendments that

the founders put into place through uh

article 5 the idea that this was not the

end all beall document that it was going

to have to be changed

and and by not understanding though what

their thought process was leading up to

it I think we've lost sight of what that

amending process should be.

amending process should be

>> Yeah. and just the commitment to it. I

>> Yeah and just the commitment to it I

mean, I was really struck. I hadn't

mean I was really struck I hadn't

thought that much honestly about him.

thought that much honestly about him

And I I like most people to the degree

that I had a kind of history of the

Constitution in my mind. It's really a

Constitution in my mind It's really a

succession of Supreme Court cases. Oh,

succession of Supreme Court cases Oh

well, there was DreadScott. I know about

well there was DreadScott I know about

that one.

that one

>> You know, Liz Lochner, Brown Board of

>> You know Liz Lochner Brown Board of

Education, row,

Education row

>> oh my god, I could teach at Harvard,

>> oh my god I could teach at Harvard

>> right? Like those are you're like, okay,

>> right Like those are you're like okay

>> I know those too.

>> I know those too

>> That's right. That's what you kind of

>> That's right That's what you kind of

think like, okay, the Supreme Court just

think like okay the Supreme Court just

decides and that's what the Constitution

is. And that's kind of how it's taught

is And that's kind of how it's taught

too, right? Law school, that's how it's

too right Law school that's how it's

taught. like it's just a section list of

taught like it's just a section list of

cases and but when I went back and did

this research it's like wow like know

the the philosophy of amendment the idea

that we can make our lives and our

government better and more responsive to

the needs of the people is actually the

foundational principle of written

constitutionalism if you're going to

write it down there's that's great then

everybody can read it like that's really

important but

you have to have a way to change it

right and there really was no provision

that the Supreme Court would be changing

I mean that's a practice that evolved

and is now can you know consider

considered uh standard and and part of

our constitutional tradition. But the

our constitutional tradition But the

philosophy amendment is the thing that

we abandoned. And it's, you know, it's

we abandoned And it's you know it's

hard. But even if you didn't have like a

hard But even if you didn't have like a

list of amendments you wanted, the idea

list of amendments you wanted the idea

of it is actually so beautiful. That is

of it is actually so beautiful That is

the moral idea, right? That is the it's

the moral idea right That is the it's

like this commitment to mending. like

like this commitment to mending like

that the word itself kind of the 18th

century meaning of it is like

inseparable from mending like repairing

a textile like

>> and convening

>> like like making amends mending of ways

like these these kind of deep ways of

thinking about shouldn't we be able to

make things better just because we've

written them down does that mean we

can't still aspire to make things better

>> do you think that we

have grown to use the Supreme Court as a

moral crutch

because the process of amending

is so

arduous. You know, it took the Civil War

arduous You know it took the Civil War

for them to decide that uh black people

should be able to vote and then

certainly, you know, Jim Crow South pul

certainly you know Jim Crow South pul

pulled that all back. Uh you know, and

pulled that all back Uh you know and

women at the time were like, "Wait a

women at the time were like Wait a

minute. So, black men get to vote, but

minute So black men get to vote but

women don't get to vote." And then it

women don't get to vote And then it

took till the the 20s till that happens

with the suffragette movements. Have we

with the suffragette movements Have we

lost sight of

what it takes to organize in a meeting

meeting to meeting grassroots relentless

effort to create a lasting because an

amendment you can pass a law but a law

can be repeal.

can be repeal

>> Is that what we've lost?

>> Is that what we've lost

>> An amendment is different and many of

our amendments overrule supreme court

decisions. That's why that's what they

decisions That's why that's what they

were for in the first place. It's like

were for in the first place It's like

the Supreme Court strikes down a

congressional law to establish the

federal income tax says that's not in

the constitution. Congress doesn't have

the constitution Congress doesn't have

that power. Ultimately we got the 16th

that power Ultimately we got the 16th

amendment in 1913 that says okay

congress can have this power and without

an amendment many gains are just

reversible. They can be overruled by the

reversible They can be overruled by the

supreme court. They can like if you

supreme court They can like if you

think about like environmental

protection right 1970 Nixon says it's

the environmental decade. I'm going to

the environmental decade I'm going to

be the environmental president and we

get the Clean Air Act, Clean Water Act,

get the Clean Air Act Clean Water Act

Endangered Species Act, and Species Act,

Endangered Species Act and Species Act

National Environmental Protection Act.

National Environmental Protection Act

All those things are being rolled back.

All those things are being rolled back

Like you, those were not

Like you those were not

constitutionalized. They're really

constitutionalized They're really

important laws and they had really

important consequences, but there was a

important consequences but there was a

proposal for a constitutional amendment

guaranteeing environmental protection as

a constitutional right. And it doesn't

a constitutional right And it doesn't

get anywhere. There's a time that's sort

get anywhere There's a time that's sort

of the last moment when we really were

able to still amend the constitution. So

able to still amend the constitution So

you think about that like would be a

different world if that had been

constitutionalized but

>> and probably goes both ways. I mean I

>> and probably goes both ways I mean I

would imagine both ways that you know

look we could argue Ro v. did a similar

look we could argue Ro v did a similar

thing over which is why I think people

now view those

>> what they might have considered to be

rights as being vulnerable because I

think they're realizing oh the Supreme

Court I mean look at the shadow docket

that they're literally like on one page

thing going like yeah the president can

uh just take billions of dollars and uh

as long as it's for like foreign money

he can just take

>> I mean it's a little bit like you're

you're you know the the reductionism of

the mass shooting analysis where you're

going to just say was it a red shooter

or a blue shooter

>> I'm sorry I don't watch this show I

don't care for.

don't care for

>> So I don't know what you're referring

to.

>> Well, I think you know.

>> Well I think you know

>> No, it's reductive.

>> No it's reductive

>> It's reductive. It's like, okay, so it's

>> It's reductive It's like okay so it's

just generally the case. Sadly, people

just generally the case Sadly people

aren't as principled as you as you'd

wish. Like if if conservatives are not

wish Like if if conservatives are not

in power in the court, then they they

in power in the court then they they

seek constitutional amendment and they

think the court shouldn't be making

decisions. Liberals are not in power in

decisions Liberals are not in power in

the court, they suddenly want to talk

the court they suddenly want to talk

about constitutional amendments and they

don't think the court should be making

decisions.

decisions

>> Are we all originalists when we're not

holding the power? Is that is that how

holding the power Is that is that how

originalism works?

originalism works

>> No.

>> No

>> Oh, okay. All right. All right. I wasn't

>> Oh okay All right All right I wasn't

sure.

sure

>> No. All right.

>> No All right

>> No, we can be intellectually

>> No we can be intellectually

inconsistent without being originalist.

inconsistent without being originalist

>> Oh, okay. All right.

>> Oh okay All right

>> Those are two different forms.

>> Those are two different forms

>> They are because that's uh uh what the

originalist would would say, is it not?

originalist would would say is it not

Is that the amendment because they

placed it in there, if you don't use the

placed it in there if you don't use the

amendment, you can't do anything.

amendment you can't do anything

>> Yeah. So, the original so originalism is

>> Yeah So the original so originalism is

not original. It's not the original

not original It's not the original

method of con of of interpreting the

constitution. It's a political product

constitution It's a political product

of of the 1970s and 1980s when

>> the term maybe

>> the term no but also the idea

>> even the thought process

>> yeah even the thought process earlier

courts didn't really say let's go back

and consider what you know Madison's

notes on the constitutional convention

said in order to understand whether

there could be a

>> so they understood themselves as living

in a time and and being politically part

of the moment

>> yeah yeah they were working I mean

they're a lot again like it's it's brand

new like they're working out well how

are we going to interpret this thing

like they're working it out that is

different kind of competing theories and

they

>> they change over time but the

originalism that dominates the Supreme

Court today

>> uh really begins around 1971 and it is

it is fiscal and social conservatives

who opposed to the decisions of the

Warren Court like starting with Brown v

Board of Education in 1954

>> and they've said oh that's judicial this

is like

>> judicial activism

>> judicial activism they're legislating

from the bench you should never do that

you should never do that if you want to

change the constitution you should try

to amend and they try to amend the

constitution, but they don't have the

constitution but they don't have the

votes. They want a right to life

votes They want a right to life

amendment. They want a balanced budget

amendment They want a balanced budget

amendment. They don't have the votes. So

amendment They don't have the votes So

then they were like, "Oh, you know what?

then they were like Oh you know what

We we do want to change the

constitution. We're going to take over

constitution We're going to take over

the federal judiciary, but we've been

the federal judiciary but we've been

saying for decades that you can't

legislate from the bench. So we have to

legislate from the bench So we have to

have a way to have our new judiciary

appointment, our new judiciary

appointment our new judiciary

appointees be able to change the

constitution without seeming to be

changed in the constitution. And so they

changed in the constitution And so they

what we're doing is

>> right

>> we've devised this new judicial

interpretation that it's we're not

changing the constitution we're

restoring it to its original meaning.

restoring it to its original meaning

>> So it's a way to change a constitution

while pretending that you're not

disguising it as

>> restoration. What's so interesting about

>> restoration What's so interesting about

that too it seems is so if you say well

there is a a an amending process right

that allows us to change the

constitution. So you have to use that

constitution So you have to use that

because that's what the founders put in

there. But as you show in the book, the

there But as you show in the book the

amendment process wasn't something that

they held sacrianked. Again, the

they held sacrianked Again the

amendment process was born of a very

messy, sometimes conflicting

messy sometimes conflicting

administrative and bureaucratic process.

administrative and bureaucratic process

Even that was compromised for a variety

of different reasons. So, I don't even

of different reasons So I don't even

know that you can point to the amendment

process. It it seems like the Supreme

process It it seems like the Supreme

Court Marberry versus Madison was the

moment they went there is no originalism

because in the Constitution there is no

only the Supreme Court gets to interpret

constitutionality and there certainly is

no amendment in the Constitution that

suggests that

>> so how didn't we leave uh that ship in

1803 or is that the wrong way of

thinking of this?

thinking of this

>> Uh yeah I mean I don't think there's no

pulling back judicial review. I don't I

pulling back judicial review I don't I

like there's maybe

>> I just mean by doing judicial review

>> you've removed yourself from originalism

because that's not in there.

because that's not in there

>> Yes.

>> Yes

>> Fair enough.

>> Fair enough

>> Good night.

>> Good night

>> For real.

>> For real

>> Yeah, for real.

>> Yeah for real

>> Did I just get Did I just get a B?

>> Did I just get Did I just get a B

>> No.

>> No

>> You know, no one gets B's anymore, John.

>> You know no one gets B's anymore John

I don't know. Oh, that's right. I

I don't know Oh that's right I

forgot. Paying attention.

forgot Paying attention

>> I forgot about that. That's when the

>> I forgot about that That's when the

parents come in. How dare you?

parents come in How dare you

>> I spend $300,000 a year at this stupid

>> I spend 300000 a year at this stupid

company. I don't know the letter B

company I don't know the letter B

anymore. My my outs with A.

anymore My my outs with A

>> It's It's really You know what? It's

>> It's It's really You know what It's

awful, isn't it?

awful isn't it

>> It's awful. Yeah, it's embarrassing and

>> It's awful Yeah it's embarrassing and

inexcusable.

inexcusable

>> Do you Can you even write see me on the

thing or No, that even that's over.

thing or No that even that's over

>> No, that's so suggestive, I think, is

>> No that's so suggestive I think is

the problem.

the problem

>> It is, right? You can't do anything

>> It is right You can't do anything

anymore. Oh, poor Democrats.

anymore Oh poor Democrats

Uh uh is the idea of of putting this out

there then to give us a sense of the

road map and the inconsistencies

so that we no longer

view things through a more orthodox or

fundamentalist lens like it is this as

opposed to no it became that because of

all these other tributaries and and is

that um constructive people as we move

forward.

forward

>> Yeah, I think it's first of all, it's

>> Yeah I think it's first of all it's

important to have a more democratic past

if you want to have a more democratic

future, right? You have to see like

future right You have to see like

there's a world of people who are

agitating for different kinds of change.

agitating for different kinds of change

Like not like all change is great. Like

Like not like all change is great Like

a lot of the people that I write as

character sketches in this book have

constitutional ideas that I think are

horrible, right? Um but they really

horrible right Um but they really

worked hard on them and they really

influenced the court in doing so. Even

influenced the court in doing so Even

if, you know, they didn't get their

if you know they didn't get their

amendments through or maybe they did,

amendments through or maybe they did

some of them they did. Um, we just

some of them they did Um we just

actually need a more complex and richer

account of how Americans have viewed the

Constitution so that it doesn't seem

immutable. Not to say to it we shouldn't

immutable Not to say to it we shouldn't

care about it. We shouldn't value. We

care about it We shouldn't value We

shouldn't want to uphold it. We

shouldn't want to uphold it We

shouldn't want to hold our leaders

accountable to it, but that it at the

accountable to it but that it at the

end of the day it is actually our

constitution. And I think we have really

constitution And I think we have really

for I would say most Americans don't

even know the US Constitution can be

amended at this like it hasn't really

happened lately. And even state

happened lately And even state

constitutions like we don't hold

conventions anymore. I think that the

conventions anymore I think that the

the things that people fought and died

over a revolution for and you know the

750,000 Americans who died in the Civil

750000 Americans who died in the Civil

War were fighting a constitutional

argument too. Like I think we just need

argument too Like I think we just need

a better a better account of that to get

our bearings in the same way like you

know in your in a marriage you kind of

need to know like your family history

like you just you have like an account

of the past.

of the past

>> Wow that took a weird turn.

>> Wow that took a weird turn

>> Okay. It took a super Is there anything

>> Okay It took a super Is there anything

else you want to talk about

>> just in your daily life? Like you think

>> just in your daily life Like you think

historically all the time about how did

like how did I get there with this

friendship? Like oh my god this person,

friendship Like oh my god this person

you know, 20 years ago we had this fight

you know 20 years ago we had this fight

and we're still fighting over that.

and we're still fighting over that

>> Sure. No. Yep. We all think that way.

>> Sure No Yep We all think that way

>> Okay. Maybe that failed.

>> Okay Maybe that failed

I love it because it reminds people that

uh democracy is a participatory sport

and that when you go through that you

see this is about and the more people

that participate we won't always uh be

pleased with the outcome but you have to

be uh invested in the process and boy

what a valuable thing although still my

favorite piece of information in this

entire book is that the federalist

society which are the general Generally,

society which are the general Generally

the legal theory of originalism uh

altered the logo of James Madison that

is their logo

>> because they thought the nose looked too

big.

big

>> It's kind of awesome. Also, it was

>> It's kind of awesome Also it was

Robert Bourke's son, I think, who was

Robert Bourke's son I think who was

like this silhouette, he's a fairly

like this silhouette he's a fairly

unattractive man.

unattractive man

>> I love it. Uh the book is called We the

>> I love it Uh the book is called We the

People. It's available now. And again, I

People It's available now And again I

can't tell you just the writing is so

vivid and engaging and wonderful. It

vivid and engaging and wonderful It

would have been so much easier to skim

this bad boy uh if you were a lesser

writer, but you are not and it is

writer but you are not and it is

fantastic. And I thank you for even

fantastic And I thank you for even

Jill Leor. Heat. Heat.

Jill Leor Heat Heat

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