Jill Lepore Challenges Originalism in New Book
In We the People, historian Jill Lepore argues the U.S. Constitution must adapt with time, not be tethered to 18th-century intent. Her book is both a historical deep dive and a critique of originalism.
With We the People, Jill Lepore presents a bold, data-rich, and literary argument for interpreting the U.S. Constitution as a dynamic and evolvingwork. Over the course of 600 meticulously researched pages, she delivers a powerful rebuke of originalism, the conservative legal theory asserting that only the intentions of the 1787rs should guide modern constitutional interpretation.
"Originalism is a weird bucket that contains multitudes," Lepore states from her Cambridge, Massachusetts study. While some versions of the theory are more nuanced, Lepore focuses on its rigid forms-those that rely solely on James Madison's notes, the Federalist Papers, and ratifying convention debates. These documents, she contends, are insufficient to guide a modern democracy.
Madison's notes, for example, were not published until 1840, three years after his death. Thers themselves vowed secrecy for half a century, precisely because the convention's deliberations were not intended to dictate interpretation. The Federalist Papers, often held up as foundational, were largely unread outside New York in their time and ignored by the Supreme Court for generations.
Yet, in the 21st century, these selective sources underpin judicial decisions that shape American life, from gun rights to reproductive access. Lepore sees this as historically flawed and politically dangerous.
She highlights the irony in how the Federalist Society, the engine behind modern originalism, altered its own logo-cleaning up James Madison's nose to make him appear more classically handsome. "That detail tells a story," Lepore says, noting that even those who claim to defend historical purity are willing to revise the past for optics.
But We the People is not merely a critique. It's also constructive. Lepore, now a professor at Harvard Law School, launched The Amendments Project with her students to track every proposed amendment in U.S. history. The data reveals that only 27 amendments have been ratified, making constitutional change exceptionally rare.
Still, Lepore emphasizes possibility over failure. "Young people don't see a lot of opportunity to shape their government," she says. By studying failed amendment attempts, students and readers alike discover the long, rich history of civic imagination in America.
Figures like John Jones and Mary Jane Richardson Jones, free Black abolitionists from Chicago, are given voice. While Frederick Douglass is widely known, Lepore focuses on Jones and his wife to explore Black women's roles in abolition and civic activism, often ignored in mainstream histories.
She traces the Constitution's evolution through pivotal moments: the Reconstruction Amendments, the 19th Amendment, the failed Equal Rights Amendment, and the modern conservative legal movement. Notably, she follows the fate of attempts to abolish the electoral college, led by Indiana Senator Birch Bayh.
Her narrative returns again and again to the Constitution's treatment of race and inequality. The document's original text avoided the word "slavery" but enabled it. In one of the book's most evocative scenes, Lepore recounts a lecture delivered in 1861 near an African burial ground in Manhattan, containing the remains of 15,000 enslaved and free Black New Yorkers. The imagery of musket balls lodged in bones and coffins marked with West African symbols reminds readers that the Constitution is not just ink and parchment, but history written in blood, sweat, and grief.
That organic quality-the Constitution as alive, flawed, and capable of rebirth-is central to Lepore's thesis. From Francis Lieber, who called the Constitution "a pregnant woman about to give birth," to Lincoln's "new birth of freedom", Lepore resurrects metaphors of life and growth to counter the rigidity of originalism.
She ties this to the Brown v. Board of Education decision, where justices met as the military relocated the parchment Constitution to a Cold War bunker. The scene becomes metaphor: while the court opened the Constitution to new meanings, the government simultaneously entombed it.
Lepore's Constitution is made of "old books and oak trees ... sheepskin and goose feathers", yet remains capable of breathing again. She doesn't just argue for change; she provides a path, rooted in historical knowledge, civic courage, and the belief that the people-not the past-should shape the nation's future.