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Constitution Breakdown #8: Jill Lepore

March 27, 2026 • 1h 6m

Summary

⏱️ 9 min read

Overview

Roman Mars and Elizabeth Jo discuss Article 5 of the Constitution with historian Jill Lepore, exploring how the amendment process works, why it has become functionally impossible, and what this means for American democracy. The conversation covers the history of constitutional amendments, the rise of originalism, failed amendments that reveal American political aspirations, and the surprising story of Birch Bayh, the last successful amendment champion who nearly abolished the Electoral College.

What Constitutional Amendments Really Are

Jill Lepore explains that constitutional amendments come in multiple forms beyond the formal Article 5 process. While formal amendments are those properly adopted through Article 5, the Constitution also changes through informal amendments via habit and practice, and through de facto amendments when Supreme Court decisions effectively alter constitutional interpretation. This broader understanding reveals how the Constitution is constantly evolving, even when it appears static.

  • Article 5 is just one long, boring sentence laying out the amendment process
  • Legal scholars distinguish between formal Article 5 amendments and other types of constitutional change
  • Informal amendments happen through creeping change by habit or practice
  • De facto amendments occur through judicial decisions that change constitutional understanding
  • Supreme Court decisions like presidential immunity effectively amend the Constitution without formal process
" The word amendment just keeps taking on all these adjectives. So legal scholars like to talk about formal Article 5 amendments. "

The Revolutionary Origins of the Amendment Process

The amendment provision was a revolutionary innovation born from state constitutions in 1776. After experiencing British tyranny with no peaceful remedy except revolution, the framers created a system where the people could change fundamental law without violence. The double supermajority requirement—two-thirds of Congress and three-quarters of states—was a Goldilocks compromise attempting to make amendments possible but not too easy.

  • The amendment concept originated in 1776 state constitutions, not the 1787 federal Constitution
  • Written constitutions required three elements: convention drafting, popular ratification, and amendability by the people
  • Massachusetts rejected an unamendable constitution in 1779, demanding the power to change it
  • The Articles of Confederation failed because they required unanimous consent to amend
  • The framers wanted amendments amendable but stable, creating the double supermajority provision
" They had no remedy for being faced with tyrannical, unconstitutional acts on the part of their government except revolution. "
" We have invented a method by which the people could peacefully change fundamental elements of their government. Whereas in all previous time, the only method was violence and insurrection. "

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