Overview

In this episode of *99% Invisible*, hosts Roman Mars and Elizabeth Jo speak with historian Jill Lepore about Article V of the U.S. Constitution—the provision that lays out how to amend the document. Lepore argues that the Constitution was designed from its founding to be amended, that this "philosophy of amendment" is the core of American constitutionalism, and that the process has become functionally impossible due to political polarization and the rise of originalism. The conversation ranges from the Founders' fear of violent revolution to the strange story of why we still have the Electoral College, blending constitutional theory with vivid historical anecdotes and a palpable sense of urgency about the present moment.

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0:00What an Amendment Actually Means

Lepore begins by clarifying a definitional point that underpins the entire conversation: the word "amendment" is broader than most people assume. Legal scholars distinguish between *formal* Article V amendments—those properly adopted and ratified through the process described in the Constitution—and other kinds of change. *Informal* amendments are creeping changes that come about through habit or practice. *De facto* amendments are judicial decisions that effectively change how a constitutional provision is understood, even though the Supreme Court does not explicitly say it is amending the document.

This distinction matters because it reveals a tension at the heart of American politics. When the Supreme Court makes a ruling that changes constitutional meaning—whether it's the right to privacy in *Griswold v. Connecticut* (1965) or presidential immunity in a more recent case—people on the losing side often accuse the Court of "amending" the Constitution illegitimately. As Lepore puts it, "usually when you say something the Court is amending the Constitution, you are denying the legitimacy of the change rather than accepting the legitimacy of the change." The same action is called judicial activism or constitutional interpretation depending on whether you agree with the outcome.

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6:04The Origins of Article V: Why the Founders Made It Amendable

The idea that a constitution should be amendable was genuinely new in the 1770s and 1780s. Lepore traces this to the state constitutions adopted in 1776, when the former colonies had to form governments after royal governors fled. John Adams argued that the states should write down their constitutions—unlike England's unwritten constitution—and that these written documents should include declarations of rights. Over time, a set of expectations emerged: a constitution must be written by a specially elected convention (not a legislature, which would give itself too much power), it must be ratified by the people, and it must be amendable by the people.

The reason for the amendment requirement was practical and existential. The Articles of Confederation, which preceded the Constitution, could only be amended by unanimous consent of all thirteen states. This meant Rhode Island—called "Rogue Island" by everyone else—could single-handedly block any change. The system was unamendable, and that failure was the direct reason the Constitutional Convention was called in 1787. As Lepore explains, "everyone understood this thing had to be amendable. No one was going to ratify it if it couldn't be changed."

But the Founders faced a Goldilocks problem: they wanted the Constitution to be amendable but not too easy to amend, because they needed stability. Their solution was a double supermajority—two-thirds of both houses of Congress must propose an amendment, and three-quarters of the states must ratify it. They also included a second route: states can petition Congress to call a convention for proposing amendments. This second route has never been used. Lepore describes Article V as "kind of a pig's breakfast"—a collection of compromises that the Framers barely debated because they were exhausted by the time they reached it.

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13:12The Fight Over How to Amend: Supplementalists vs. Incorporationists

One of the most surprising details in the episode is the debate over *how* amendments should be physically added to the Constitution. When James Madison introduced the Bill of Rights in the first Congress in 1789, he faced a practical question: should the new amendments be woven into the existing text (like track changes), or should they be appended at the end as a separate list?

The "incorporationists" argued for going back and editing the original text—changing words, deleting clauses, making the document read as a coherent whole. The "supplementalists" argued for simply adding the amendments at the end. The supplementalists won, partly for a mundane reason: the Constitution had already been printed in books and school materials, and reprinting it with changes would have been expensive and confusing. As Lepore notes, "it's like someone telling me changing the Department of Defense to the Department of War is going to cost like umpteen billion dollars because of the stationery."

This decision had enormous consequences. Because amendments are appended rather than incorporated, the original Constitution still contains the three-fifths clause and other provisions that have been superseded. During the Tea Party movement, when members of Congress read the Constitution aloud on the floor, they silently skipped the three-fifths clause—but it remains in the document. Lepore suggests this contributes to the "veneration of the original Constitution" because "nobody's ever scratched it up." If we pictured the Constitution as something with "little squiggly lines and bubbles where you write in the new thing," we might have a stronger sense that it is meant to be changed.

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19:56The Archive of Failure: 12,000 Failed Amendments

Lepore's book *We the People* is not primarily about the 27 successful amendments. It is about the thousands that failed. She describes building a digital archive of every attempt to meaningfully amend the Constitution—some 12,000 amendments introduced on the floor of Congress, of which only 27 were ever ratified. The project began when she was teaching a class and asked students to research previous efforts related to their proposed amendments. It turned out to be surprisingly difficult because "we just don't have much of a sense of the failed amendments."

Lepore argues that this archive of failure is "an incredibly meaningful record of the political aspirations of the American people." Many of those 12,000 amendments were terrible ideas, she acknowledges, but they represent what people have wanted and been unable to achieve through the formal process. This perspective unsettles the way constitutional history is typically taught in law schools, which Lepore describes as "just a bunch of Supreme Court decisions"—Dred Scott, Lochner, Brown v. Board—as if the Constitution is whatever nine robed justices say it is. She wants to remind readers that "the founding idea of our system of constitutionalism is the philosophy of amendment: the idea that the people should be making things better, changing things peacefully when it's necessary."

The stakes of this philosophy are existential. The Founders had lived through the Revolutionary War, with its "unfathomable" suffering, and they were terrified that the only way to deal with an unconstitutional government would be violent revolution. Amendment was supposed to be a "peaceful revolution"—a way to change fundamental law without bloodshed. As Lepore puts it, "the idea that you could just make things better by saying, 'hey, a bunch of us got together, we disagree about a lot of shit, but we agree about this little thing—can we do that please?'—I like that a lot."

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31:10The Two Poles: Making Amendment Easier vs. Making It Impossible

Lepore identifies two opposing impulses that have recurred throughout American history: attempts to make the Constitution easier to amend, and attempts to make it impossible to amend certain provisions. Neither has ever succeeded through the formal Article V process.

On one end is the idea of making amendment easier. After *Brown v. Board of Education* in 1954, some reformers proposed amendments to lower the bar for constitutional change. More recently, in 2020, the National Constitution Center had three teams of constitutional scholars—conservatives, progressives, and libertarians—each write a revised Constitution. All three teams changed Article V, and all three made it easier to amend. This was a rare point of cross-ideological agreement.

On the other end is "entrenchment"—making certain provisions unamendable. The most notorious example is the Corwin Amendment, proposed just before the Civil War, which would have made it impossible to ever amend the Constitution to interfere with slavery. It passed Congress in 1861 but was never ratified by enough states. Lepore notes that the Constitution already contains one entrenched provision: Article V itself says that no state can be deprived of its equal suffrage in the Senate without its consent. This is the only clause that is explicitly unamendable.

The deeper point is that Article V has become a "dead letter" for most of American history, not just recently. Before the Civil War, the only thing people really cared about constitutionally was slavery, and there was no way to get three-quarters of the states to agree on that. The Reconstruction Amendments—the 13th, 14th, and 15th—were only possible because 750,000 people had just died in a civil war and the defeated South was being treated as conquered territory. As Lepore says, "it makes passing amendments easier" when the states that would oppose them are not in Congress and are ratifying "at the point of a gun."

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38:481971: The Death of Article V and the Birth of Originalism

Lepore identifies 1971 as the turning point when Article V effectively died. Since then, there has been one successful amendment—the 27th Amendment, ratified in 1992, which had been introduced in 1789 and was essentially lost in the paperwork. The dry spell is not the longest in American history, but it is sustained by two reinforcing trends.

The first is political polarization. The double supermajority requirements of two-thirds and three-quarters were devised before there were political parties. Now, with parties that are "utterly polarized," Congress cannot get two-thirds of both houses to agree on anything. As Lepore puts it bluntly: "Congress can accomplish absolutely zero."

The second is the rise of originalism. In 1971, Robert Bork published a famous law review article opposing judicial activism—specifically, the idea that the Court could find a right to privacy in the Bill of Rights, as it had in *Griswold v. Connecticut* (1965). Bork argued that judges should return to the "original intention" of the Framers. This theory was elaborated through the 1970s and became official policy under the Reagan Justice Department in the 1980s, with a litmus test for federal judges.

Lepore traces a direct line from Bork's originalism to the *Dobbs* decision in 2022, which overturned *Roe v. Wade*. The logic is the same: the right to privacy is not in the Constitution, so the Court cannot "amend from the bench." But Lepore argues that originalism is itself a form of judicial power exercised "in the guise of constitutional restoration and modesty." She points to a 2012 case where Justice Scalia asked whether police use of GPS—which did not exist in the 18th century—would have been considered a "search" under the Fourth Amendment in the 18th century. "It's an absurd premise," she says. "The more you look at it, it's just such rank nonsense."

Lepore is careful to say that she respects originalists as "very smart, very principled people" and takes their good faith for granted. But she is "entirely certain it is not original" and "it really has very little to do with history." The methods originalists use—the Constitution's text, James Madison's notes, the Federalist Papers, and a dictionary—are artificially bounded in a way no historian would accept. If she wanted to understand the Biden years and limited herself to the White House visitor logs, Biden's press conferences, and Jill Biden's diary, "you learn a lot, but it would be bizarro world."

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48:45The Creeping Threat of Originalism: From Dred Scott to Brown

One of the most striking threads in the conversation is Lepore's genealogy of originalist thought, which she traces back much further than 1971. She identifies a "creeping force of originalism under different names" throughout American history.

The most disturbing example is *Dred Scott v. Sandford* (1857), where Chief Justice Roger Taney offered an originalist argument: the Framers could never have intended for Black people to be citizens. A century later, in the oral arguments for *Brown v. Board of Education* (1954), the lawyer arguing for segregated schools quoted Taney's *Dred Scott* decision at length, insisting that the Framers of the 14th Amendment never intended for Black and white children to attend school together.

Chief Justice Earl Warren's opinion in *Brown* famously declared that "the history is inconclusive"—a way of saying that history does not matter, because deferring to history and tradition could only "reinstantiate racial divisions." This infuriated David J. Mays, a Virginia lawyer and Pulitzer Prize-winning historian who had done the historical research for the segregationist side. Mays believed the history was clear: the Framers of the 14th Amendment did not intend to ban segregated schools. He became the architect of "massive resistance" in the South—refusing to implement desegregation—and began writing about the "question of intent," insisting that the only way to understand the Constitution is to defer to the original intent of its Framers.

Mays testified before Congress on this point and elaborated ideas that Robert Bork would pick up in 1971. Lepore calls him "a missing link" between *Brown* and modern originalism. His diary, which he left to the Virginia Museum of History, begins with him attending a lynching in the 1910s and writing about how exciting it was, then taking a train to Washington D.C. to see *Birth of a Nation*. "He is that guy," Lepore says. The diary has been published within the last ten years, and Lepore describes it as "the autobiography of segregation."

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59:07The Last Amendment Warrior: Senator Birch Bayh

Amid the long history of failure, Lepore highlights one figure who stands out as an "amendment hero": Senator Birch Bayh of Indiana, a Democrat who served from 1963 to 1981. Bayh was handsome and charming—"the Kennedy of the Midwest"—and was considered a potential presidential contender. When he arrived in the Senate, the segregationist chair of the Judiciary Committee, James Eastland, put him on the subcommittee on constitutional amendments, which was known as a graveyard where ideas went to die.

Bayh ignored the expectation of inaction. He held hearings on controversial topics like busing and abortion, and over the course of a decade, he got four constitutional amendments through Congress. He was instrumental in the 25th Amendment (presidential disability and succession), prompted by Eisenhower's heart attacks and Kennedy's assassination. He helped pass the 26th Amendment, which lowered the voting age from 21 to 18, driven by the student antiwar movement. And he was significantly responsible for getting the Equal Rights Amendment out to the states, though it was never ratified.

But the amendment Bayh cared about most was the abolition of the Electoral College. In 1969, he had public opinion on his side—over 80% approval—and the amendment had passed the House. It seemed destined for success. Then two things went wrong. First, the NAACP opposed the reform, arguing that the Electoral College amplified Black votes in the North (a position that had not been updated after the Voting Rights Act). Second, Richard Nixon nominated two Southern segregationists to the Supreme Court in quick succession, and the Democrats needed someone to defeat them. Bayh was chosen to dig up the dirt and destroy their reputations. He succeeded, but the Southern segregationists in Congress retaliated by voting against the Electoral College amendment to punish him.

"That is why we still have an electoral college," Lepore says. "It's so depressingly tit-for-tat political rather than big ideas." Bayh spent all his political capital on the fight, and no one like him has emerged since. The coda is even darker: in 1977, Bayh tried again. A conservative scholar named Martin Diamond came to testify against the amendment, became so stressed that he had a heart attack in the hearing room, and died because the emergency phone did not work. The hearings never resumed. "It feels like fate is not on the side of abolishing the Electoral College," Lepore says.

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1:08:33The Sleeping Giant: Hope for Constitutional Change

Despite the bleak diagnosis, Lepore ends on a note of cautious optimism. She feels "a public duty to perform hope," even if she is not always sure she has it. But she also sees genuine reasons for it.

The Constitution is facing a crisis of legitimacy. The powers of the executive have expanded dramatically. The separation of powers has eroded. There is a real question about whether the current administration will successfully argue that birthright citizenship is not in the 14th Amendment. A Constitution that has become "functionally unamendable" lacks democratic legitimacy, and Lepore believes this is an "unsustainable and untenable situation."

She points to several initiatives that could awaken the sleeping giant of amendment. One is Democracy 2076, a youth organization that is holding citizens' assemblies to ask what the Constitution should look like in 2076—recognizing that it historically takes about 50 years to get an amendment from idea to ratification. Another possibility is state constitutional conventions. Many states have a question on the ballot every 10 or 15 years asking whether to hold a convention, and voters have consistently said no since Rhode Island held one in 1986. But Lepore thinks state conventions are "really good for civil society, even if the constitutions don't get amended." The act of getting together and talking about fundamental law is valuable in itself.

"I think things are stuck until they're not," she says. "And the Berlin Wall comes down."

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Conclusion

This episode matters because it reframes the Constitution not as a sacred, static text but as a mechanism for peaceful change—a mechanism that has broken. Lepore's combination of archival depth, narrative flair, and moral clarity makes the case that the Founders' "philosophy of amendment" is the heart of American constitutionalism, and that its failure is a political and democratic crisis. The conversation leaves the listener with a vivid sense of what has been lost: the idea that ordinary people could come together, agree on a small change, and make their government better without violence. Whether that idea can be revived is the question that hangs over the entire episode.

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Key takeaways

• The Constitution was designed to be amendable; the Founders saw amendment as a "peaceful revolution" that would prevent the need for violent insurrection.
• Article V's double supermajority requirements (2/3 of Congress, 3/4 of states) were devised before political parties existed and have become nearly impossible to meet in an era of polarization.
• The decision to append amendments to the end of the Constitution rather than incorporating them into the text has contributed to the veneration of the original document and obscures its amendable nature.
• The rise of originalism since 1971 has made formal amendment even harder by delegitimizing judicial interpretation as a form of constitutional change.
• The Reconstruction Amendments (13th, 14th, 15th) were only possible because of the Civil War and the military occupation of the South—they are the exception that proves the rule.
• Senator Birch Bayh was the last successful "amendment warrior," and his failure to abolish the Electoral College in 1969 was due to petty political retaliation, not substantive disagreement.
• The Electoral College survives today because of that single political vendetta, not because Americans support it.
• A Constitution that cannot be amended faces a crisis of legitimacy, and there are emerging grassroots efforts—like Democracy 2076—that may eventually revive the amendment tradition.