Live at the National Constitution Center

Constitution 101 With Jill Lepore

April 16, 2021

Share

This week we’re sharing a constitutional class taught online featuring Harvard historian, New Yorker staff writer, and podcast host Jill Lepore. Professor Lepore explores the ideas that animated the founding of America, sparked the Constitutional Convention, and continue to shape American life today. She also answers questions about the convention and more from both National Constitution Center President and CEO Jeffrey Rosen and from the students in our virtual audience, via our Chief Learning Officer Kerry Sautner.

For more information on past and upcoming National Constitution Center classes, visit constitutioncenter.org/interactive-constitution/online-civic-learning-opportunities.

FULL PODCAST

Or, listen on Apple Podcasts or Spotify.

This episode was produced by Jackie McDermott, Tanaya Tauber, Lana Ulrich, Kerry Sautner, and the education team at the National Constitution Center. It was engineered by David Stotz. 

PARTICIPANTS

Jill Lepore is the David Woods Kemper ’41 Professor of American History at Harvard University. She is also a staff writer at The New Yorker, and the host of the podcast, The Last Archive. She is the author of many award-winning books, including the international bestseller, These Truths: A History of the United States (2018). Her latest book is IF THEN: How the Simulmatics Corporation Invented the Future, longlisted for the National Book Award. She is currently working on a study of the history of attempts to amend the U.S. Constitution.

Jeffrey Rosen is the president and CEO of the National Constitution Center, a nonpartisan nonprofit organization devoted to educating the public about the U.S. Constitution. Rosen is also professor of law at The George Washington University Law School and a contributing editor of The Atlantic.

ADDITIONAL RESOURCES

Stay Connected and Learn More

Questions or comments about the show? Email us at [email protected].

Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.

Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

Please subscribe to Live at the National Constitution Center and our companion podcast We the People on Apple PodcastsStitcher, or your favorite podcast app.

To watch National Constitution Center Town Halls live, check out our schedule of upcoming programs. Register through Zoom to ask your constitutional questions in the Q&A or watch live on YouTube.

TRANSCRIPT

This transcript may not be in its final form, accuracy may vary, and it may be updated or revised in the future.

Jackie McDermott: [00:00:00] Welcome to Live at the National Constitution Center. I'm Jackie McDermott, the show's producer. Jill Lepore, historian, podcast host, and author recently joined one of our constitutional classes. Professor Lepore discussed the ideas that sparked the constitutional convention, animated early America, and continue to shape constitutional conversations today. Professor Lepore answered questions from both NCC president, Jeffrey Rosen, and from the students in our virtual audience, as read by our chief learning officer Kerry Sautner. Here's Kerry to get the conversation started.

Welcome everybody. We are so excited to have you in class today. My name is Kerry Sautner. I'm the chief learning officer at the National Constitution Center and today's class is going to be a great one. Our Friday sessions always bring in top scholars and historians from around the country to talk to you students of all ages about big topics in the Constitution. Today's big topic is the constitutional convention and really broadly American history. So we have brought for you a great guest speaker today. Professor Lepore is from Harvard University and has so many amazing books. I'm going to just shout out to this one, which is the one I'm rereading right now, These Truths, which is one of my favorites, but our students in the audience have already talked about how they want to hear more about the history of wonder woman in America to.

Professor Lepore also writes for the New Yorker, is an amazing storyteller and what we love so much at the Constitution Center, an awesome teacher. But we also have another awesome professor and teacher with us. That's Jeff Rosen, he's our CEO or executive director and our heads scholar at the National Constitution Center. So Jeff, we are so excited for this class today. You can see the students are coming in from all over the country and we can't wait to get started. So without further ado, I'm going to turn it over to you and professor Lepore to get today's conversation moving.

Jeffrey Rosen: [00:01:58] Thank you so much Kerry and welcome Professor Lepore. We are so thrilled and honored to welcome you to the National Constitution Center's Friday class. Friends who are watching, you are so lucky to share the light and great wisdom of professor Lepore. The book that Kerry just showed you, These Truths, is the most important and galvanizing and illuminating modern history of the United States. I want you, we have something in this class, Professor Lepore, called Jeff work, where I assign books for folks to read for fun. And I hope that all of you will take the time to read These Truths because you'll learn so much from us.

Professor Lepore, in the precious half hour that we have together I want you to share with our friends as much of the core ideas leading up to the constitutional convention as we can. And in These Truths, you write, the American experiment rests on three political ideas, these truths, Thomas Jefferson called them political equality, natural rights, and the sovereignty of the people. Where did those ideas come from and how are they embodied in revolutionary or state constitutions in the years leading up to the constitutional convention.

Jill Lepore: [00:03:12] Oh, thanks, Jeff. Well, it's really lovely to be here. I'm sorry we have such a short period of time. I know you and I am sure could talk for many hours about all of these things and it would be so fun to have more time to chat too with all the attendees. It's really fun to be here. So, let's see,  in a little nutshell, those ideas, you know, what Jefferson called these truths, they date back to antiquity in many ways, right? So, you can read Aristotle and Plato and see some of these ideas being bandied about, often for the purpose of being struck down. But, they have a very long and deep history in political philosophy. I think the idea of equality has a very long and rich religious history as well, of course. And that's part of the inheritance in the way that we understand those ideas down to today. One of the things that I thought was really important to do in the way that I was trying to tell a new history of the origins of those ideas, and then of course of the national project itself, was to think about how much those ideas were called into sharp relief by their failure to be honored and practiced.

That is to say, this is a nation that is founded on natural rights, the sovereignty of people, the consent of the governed. And it is also a nation that is founded on the denial of those things, right. So,  and on the idea of political equality. It is a nation that's founded on land that was taken from people who understood themselves as sovereign over it. The construction of the country involved the forced extraction of labor from people who were denied their so-called natural rights. And the consent of the government was not participated in by all. So to me, one of the things I really was excited to do in writing These Truths was understanding. And this is something that historians have thought about for such a long time. I mean, I think back to, I'm sure you and I read in graduate school, Edmond Morgan's American slavery, American freedom, you know, from 1975 or David Brian Davis' slavery, to the problem of slavery in the age of revolution.

That so much of this period involves the ferment between the people who are writing constitutions for the state and around the world, for the emerging United States, but also around the world. And the ferment between these framers of constitutions and people who are being denied rights by existing and emerging governments. And I think it's actually in that crucible, which is quite a violent crucible, right? It's a crucible of ideas, but it's also a crucible of violence, that there's this incredible explosion of ideas on which the nation is founded. And then I think of all of American history since that kind of big bang moment as the continuing struggle to realize the ideals of those ideas, to realize the promise of those ideals.

Jeffrey Rosen: [00:06:02] It's so exciting to hear you talk. All of the books that you've recommende--friends, I hope you're taking notes and we'll put them in the chat--Plato, Aristotle, and then Morgan, we must follow up on all of the suggestions that Professor Lepore is giving us, but take us into that period when those ideas were first being enshrined in constitutions. You talk about John Locke's influence on the constitution of North Carolina and how already its roots in freedom of religious conscience and its inconsistency with slavery were already apparent. Talk about how those ideas both were honored in the constitutions and were violated in practice by slavery in that crucial revolutionary era.

Jill Lepore: [00:06:48] Yeah. I mean, if you think about those 17th century, the colonial charters or the fundamental constitutions of the Carolinas that John Locke apparently had a hand in drafting. Many of those were you know, for... this was at a time when writing down the rules that governed governments not to say the laws, right--we understand if people had been writing down laws for a long time. But writing down the laws that govern the government itself, which are what we think of what a constitution is, right, that constitutes the political existence of the government. That's really new in the 17th century, right? I think 1653, the instruments of government in Britain is the first written constitution in the modern era.

The idea that in an age of widespread or growing literacy, you know, the popularity of the printing press and people could actually read things that you might write down and you could just make copies and  distribute them. The idea emerged in the 17th century that reaches fruition in 1787 in the United States, that, well, if we're going to have governments that we should write down what powers the governments have, and that would be a check on the possibility of tyranny. So, that idea really comes to fruition in England, in the 17th century as part of the English revolution, right. Which is also where we get our idea of the sovereignty of the people. The sovereignty of the people is an idea that emerges to counter another legal fiction, which is the divine right of Kings. So, there's a huge debate in 17th century England over who gets to decide who's in charge, right? Does God decide? Cause Jame the first says, you know, I'm divinely--everything I say must be right because I am the King.

It's the infallibility that the King of England, who's both the head of the church in England and the head of the state because of the Reformation, and the separation of the Church of England from the church room, he's both the King and the Pope sort of all in one. And he says, I'm infallible. And Parliament says, no, you're not infallible, in fact, and you're not divine. Your right to rule is not divine. It's something the people granted to you. And so they begin talking about the people as being sovereign over themselves. And one way they make that argument is by resurrecting the Magna Carta, which is a constitution from 1215 that had been largely forgotten and certainly not honored. And you know, reformers, people who were opposed to the divine right of Kings waving around printed copies of the Magna Carta saying this is an ancient constitution. And it proves that the King does not have a divine right to rule, that we grant the King certain powers and we reserve for ourselves certain rights.

And that's the whole point of writing down a constitution. It's an idea that is kind of just, it's like what we would call a perception hack, now, do you know what I mean? Like, England doesn't ever write down a constitution, right? This is just a way to kind of, Parliament's having a battle with the monarchy. But it's the idea that's present in England at the time when the Puritans are leaving and many religious and political dissenters are leaving England and they take that idea, you know, not just seriously, but literally. And so they instantiate that idea by writing out these colonial charters and colonial constitutions. So, they have this whole long tradition by the time, you know, by the time of the declaration of independence of writing down the rules and the rules generally are about the King doesn't have arbitrary of power over us. We have the right to elect representatives who represent our ideas and our, and our political commitments. But meanwhile, because that same moment is also when England is really turning to the enforced labor of Africans, what's often written into those constitutions is the brutal, arbitrary power over people who are held in bondage, which is one of the things that's in the fundamental constitutions. And I don't think that that's an accident.

I mean, I think there's something about the writing down and the thinking about the relationship between the powers that a government holds and the liberties that the people have that actually underwrites the whole gruesome brutal regime, the legalization of depriving people of their very lives, depriving people of their children, depriving people of their labor, depriving people of the ability to gain an education, like all the many, many other elements of slavery, besides the forced extraction of labor that are about the absolute denial of rights. So on the one hand, and this is, you know, the kind of Ed Morgan, this is absolute denial of rights in a place like colonial Virginia. And then there's this glorification of the idea of rights, right?  That gets you kind of down to, you know, by the time of the American Revolution, the British have had enough of this and they keep saying like, well, you know, sort of Samuel Johnson, why do we hear the loudest Yelps for Liberty from the drivers of slaves?

And that is, you know, that remains a really, really deep question that Americans, as we wrestle with our own past, are still struggling to come up with an answer to. And I think for a very long time, we've kind of set aside that question instead of really reckoning with it, that is to say that mutual dependence. So one of the things that I think is really important to consider is if early English colonists developed a sophisticated attachment to the idea of natural rights and cherished it and abhored absolute tyranny. That is not least because of the cries that the people that they are holding  in bondage are making. By what right do you take my life, my labor, my land, all other people in this colonial world are screaming at the top of their lungs. They're running away. They're waging rebellions. They're inciting war, you know, they're engaging in warfare against the colonies. So, if you think about the many kinds of political objections and expressions that enslaved people and indigenous peoples, runaway wives, there are all kinds of challenges to arbitrary authority that are themselves an incredible political revolution and an ideological revolution that I think needs to be understood as animating the political discourse that makes possible independence.

Jeffrey Rosen: [00:12:55] It's so powerful to hear you ask that question by what right? That was posed by the challenge of the divine right of Kings. You note in These Truths that as early as 1781 a slave in Massachusetts invoked John Adams, his language about all men being free and equal in the Massachusetts constitution to argue for her freedom. She was granted it by the Massachusetts Supreme Court and she gave herself a new name, elizabeth Freeman. I want you to say just one more beat about what a natural right is. What did John Locke mean when he said all the men are by nature free and independent? What's an unalienable right? And how did Thomas Paine, Thomas Jefferson and the declaration makers like George Mason and writing the Virginia declaration of rights incorporate those ideas into their constitutions?

Jill Lepore: [00:13:48] Well, I think that they are borrowing from many different sources and we see them as the font of a river that goes all the way down to, you know, 1948 and the declaration of human rights, right. That human rights discourse, you know, it goes back there and goes further and has other tributaries that feed into it. But for a lock, he is engaging in the work of imagining a time before governments exist, in a state of nature, which is an active imagination, a thought experiment that is made possible by his imagining of the Americas, which he has this fiction in his mind as many Europeans do, that it is a place without law and without governments, but it sparks this idea. Well, what would the world be like--how did groups of people decide to have rulers? And to obey the laws that the rulers would create? And Locke comes up with the idea that in that state of nature, everyone has a natura right. These rights are endowed by our creator. I mean, there's a  sort of deistic and in many ways, a Christian view, that lies beneath this idea, even though Locke would have said that's not the origins of this idea.

It co-exists quite comfortably with many religious ideas about the equality of all people. But for Locke actually, when he talks about, and for Jefferson about, you know, all men are created equal, they actually mean, quite specifically, men. And they mean in a state of nature there are men gathered together in the world of the public and they are equal in that world and they agree to erect a government to protect their property and their ability to live safely and to pursue  happiness, as Jefferson would say. Confined outside of that world, back in their homes, are their wives, their children, their servants, their slaves, all of whom exist under completely arbitrary authority of the male head of the household. So that notion is one of the pieces of political revolution that animates, you know, the history of the world is this weird division between a public sphere and a private sphere that becomes really fetishized. That somehow in the public sphere, we're all created equal, whereby we, we mean property owning men. And then in the private sphere, everybody is dependent on those property, on the men. And that's the logic by which women and slaves and servants were denied the right to vote because they are completely dependent under this Locke-ian notion of what it is to be a political subject is to be that free man.

And a woman couldn't vote because she could only do whateve be in the best interest of her husband. She couldn't exercise an independent franchise. There are people who are independent and then there are people who are dependent and that divide, we still see the consequences, the political consequences of that divide, which is the one on which the nation was founded. But it was exploded so quickly. You know, from the very start, I mean, you think about Elizabeth Freeman, you think, you know, even before, long before, the declaration of independence, there are petitions for freedom that are filed by enslaved people. There are petitions for sovereignty that are filed as a matter of court and law for citizenship. There's a whole world of petitioning that we, I think, sort of set to one side as if it doesn't belong in our conversation about constitutions. But I actually think we do better to think about constitutions in tandem with petitioning. Because the petition is the only legal instrument that's available to people that are disenfranchised. So, petitioning is one way that the disenfranchised write themselves into constitutions.

Jeffrey Rosen: [00:17:28] So fascinating about the sources of constitution making through petition making. You've just written a wonderful piece about when constitutions took over the world and you note Linda Colley's superb new book, "The gun, the ship, and the pen: warfare, constitutions and the making of the modern word." Thank you for a great recommendation. We had Linda Colley and David Armitage on the podcast yesterday to talk about how one of the sources of the constitution making in America was war and the need to raise taxes to ensure that the war debt could be paid off. And that was a phenomenon that was common for constitution making a before and after.

Tell us now, as we begin to think about why the framers came to Philadelphia in 1787, what their objects were, and I'll also note that you call out in your book Madison's vices of the political system, where he talks about the chief one of them, which is that in a Republican government, the majority, however composed, gives the law, but a common passion may unite the majority and lead them to oppress the rights of the minority or individuals. So why did the framers come to Philadelphia and what were they trying to achieve?

Jill Lepore: [00:18:40] They came to Philadelphia  because the Articles of Confederation didn't work. Because the Articles of Confederation were a temporary war measure to devise a political union among the colonies, then in their independence as states, by which they could raise an army to fight against the British. And the powers that the Articles of Confederation granted to Congress were extremely limited, and they essentially, you know, something much more akin to say the European Union then to our national constitution. It was a Confederation of 13 states. There were 13 different currencies, 13 different navies, and the Congress didn't have the ability to compel the States to pay back their debts, particularly their war debts. And the economy was falling apart. And the Congress couldn't resolve disputes between the states, either. So those who convened at Philadelphia had decided--their brief was to revise the Articles of Confederation, but they figured they could get away with just throwing them away and starting again. And that was certainly Madison's idea. So Madison had undertaken the really interesting scholarly project of basically reading about the history of all governments to see, you know, what works and what's what doesn't work. Maybe I could--it's like building a house. Well, I, you know, I like the casement windows on that house, but I like the porch on that house. But the roof line over here on this house will be beautiful. And you end up with this house that you think is the best of all bits and pieces of all houses.

That's how he thought about the constitution. Well you wanted a separation of powers and you wanted a by camera legislature, but we want--just which bits and pieces would work. But certainly the overriding objective was to provide greater powers to a national government, including the power to tax. So, I mean, I find Colley's argument, and if people haven't pulled out a copy of the book, I really would encourage you to think about it because, you know, we ignore constitutions at our peril. And you know, we have people--humanity has yet to invent another device that grants and guarantees rights to people. Right? That's what constitutions do. And we don't have another way to guarantee rights to people. So, what Colley's argument is, which I think is just genius is, well, why did all these governments around the world decide to guarantee rights in writing, say, yes, you have all these rights and our powers are restricted.

Well, it was a quid pro quo. Ok, these  fairly weak states that were engaged in increasingly devastating and costly wars on many different fronts involving armies and navies and multiple parts of the globe. They needed to be able to conscript men and they needed to be able to levy taxes. And people were saying, no, you know, just, no! I'm not going to do--why should I, why? You know, I don't believe you're divine. And you know, I have a family to take care of. I don't have coin to give you. Well, the deal was, you know, rulers could say, I have this beautiful constitution that says you have all these rights. I will never quarter troops in your house. I promise I won't do that. You know, it becomes this kind of deal around limiting the powers of the state in order to make possible the sacrifices that the subjects are compelled to make for the sake of war. That's Colley's argument. I think it's really important because it helps us to situate them American constitutional moment within a much bigger world of constitution making.

Jeffrey Rosen: [00:22:16] That language that you quote from Madison about faction overtaking a majority of course, is part of Madison's famous definition of faction in Federalist 10, a majority or a minority animated by passion rather than reason devoted to self-interest rather than the public good. Tell us about the philosophical sources of that distinction between reason and passion, which is, you know, it goes back to Plato and Aristotle. How did it feed into Madison's definition of faction and how was the constitution designed to avoid it?

Jill Lepore: [00:22:47] Well, the Constitution, I mean, I think of, you know, the metaphor that's popular in the 18th century, I think equally well suits today, that it is like a clock work. It's a very intricately designed physics experiment, where different weights are given to different elements of the machine so that once it's set in motion, it's not supposed to go out of whack. They'll always be something that will compensate for if it has a tendency to go out of whack. So if you think about the--one of the places that I think Madison really gained his most sophisticated understanding of the relationship between reason and passion was from the state constitutions. So the bugbear of the framers was the Pennsylvania state constitution, which I think sounds kind of crazy and sort of interesting. So the different states were--the revolution was pretty radical and the state constitutions were generally more radical than the constitution we ended up with for the federal government.

The Pennsylvania constitution had no governor. It had a single house. So basically a lower house that was huge, right? Like really representative. The ratio of representatives to subjects was quite different than it would later become. And in order to pass a law, this is the kind of most interesting part, it's as close to direct democracy as Americans have ever experimented with. You'd have to publish the draft of the law, like in newspapers and on town halls, for a year before you could even have a vote on it in the one house of the legislature. So it's kind of like the California referendum or something. Like it's a very people run state and it was pretty, it was kind of a disaster. I mean, Madison would have said that's just all passion and no reason. Like what are the mechanisms that check a majority of people who might think that this is a bad idea because they really liked oppressing a minority of people and there's no check on the tyranny of the majority. There's no distributing the powers of government across different branches.  There's too much faith in the capacity of the people. Among the framers, Madison was certainly by far not the most aristocratic, but everybody feared that granting too much direct powers to the people would lead to, you know, this sort of like the way John Adams says every democracy in the end commits suicide.

Because people really can't be trusted with power. People are too rotten. I mean, there's a basic commitment to the belief that people are kind of, people kind of stink. Do you know what I mean? That is actually an animating idea, but if people were great, if men would be angels, you know, as the framers would have said, you wouldn't need a government. People are kind of rotten and can be really rotten. They grab power, they hold power, they oppress other people. So, government exists to hold that passion and the likelihood of factions who would have particularly oppressed political minorities, and that's what they meant, political minorities with the exercise of that of a passion-driven faction. Madison was super concerned about that.

Jeffrey Rosen: [00:25:54] If Pennsylvania was an anti-type, was there a state constitution that they thought was a better guide and what structural principles were put into the constitution to ensure the rule of reason rather than passion?

You know, they reallyJill Lepore: [00:26:11] did consider them all. I think that the big compromises at the constitution are the ones that haunt us still. And to me, some of the best speeches at the constitutional convention were by people that just kind of threw down their sheaf of papers and said, this is not some out, you know, like Luther Martin, who just said, if we can't abolish slavery, like this is a joke, what are we doing? Like how can we be sitting here having these deliberations in a hot summer, I'm out of here. You know, people who refused to sign, people who made, you know, Gouverneur Morris made a great speech about the Atlantic slave trade. I mean, I think that, I think the compromises that the delegates to the constitutional convention made, we often say, well, they had no choice. If they, you know, if they hadn't compromised about the slave, the so-called slave power of the slave states, because, you know, South Carolina said, well, we'll leave if you say that you know, it's possible to abolish slavery. We will leave if you abolish the slave trade, or we will leave if you--we will walk out of this room if you don't allow us to count the people that we own as people for purposes of representation, but then not for purposes of taxation. Like this, I think that the North should have called their bluff.

I would just say that that is the millions of people held in slavery in 1787 and all of their descendants and all the rest of us have paid the price for that compromise. So I, what I find, I will just say, like, I, you know, I can read Madison's notes for a long time and really enjoy them, but I still say they should have been willing to walk out and call the bluff of the South. I don't think I answered your question, Jeff, but I think when I teach the Constitution, like I think there's you got to leave a lot of room to say, come on, come on! Like, you're all here. You believe in liberty, you believe in natural rights, you believe in political equality. And then you make this giant, I mean, this is the speech Thurgood Marshall gives in 1787, I mean in 1987. One of my favorite speeches about the Constitution on the 200th anniversary, when there's a lot of celebrating of the bicentennial of the Constitution and Thurgood Marshall, the first African-American Justice on the Supreme Court says,  you know, I'm going to celebrate everything that's happened since to realize that promise, but I'm not going to celebrate that moment.

Jeffrey Rosen: [00:28:38] Wow. That's an incredibly powerful answer. And it leads to the followup you write in These Truths that the battles over the status of slavery all came to a core over questions concerning representation. So tell us about ultimately those compromises about representation and what do you think would have happened if the North had walked?

Jill Lepore: [00:29:01] Well, I don't know. I'm terrible at counterfactuals. Could it have been worse than then continuing to enslave people for generations and the civil war down to the kind of racial injustice it leads in our day. I mean, I guess what could have... yet it could have been worse, I suppose, but I don't know. You stack that up on the one side, there's a lot to stack up about, you know, the extraordinary ingenuity and beauty of the American experiment, but it's a tough question to answer. With regard to representation, I mean, I think it's important to think about the constitutional compromises as a kind of math problem that turns people into numbers. And we forget that democracy depends on demography. Like we live in a demographically determined political system, because it was new to be able to count the population. The 18th century, it's really pretty new. Democracy is a science. Thomas Malthus  is like 1798, right? So people are just beginning to do the work of counting people, doing a census.

But the delegates at the constitutional convention took very seriously the idea of representation as a quantitative prospect, that if you could count the people, then you could come up with a ratio of the number of people per representative. So that's one of the big math problems they were trying to solve. Then they had to solve how to distribute power between the states and the people. That's how we ended up with two houses, the Senate, which has two two members from every state that gives small states outsized political power, but that was seen as necessar, and certainly is consistent with the Articles of Confederation, but then there's a lower house that is more directly representative of the body of the people. And there, the question, and this is where the big compromises came in, which is how do you count people when there are millions of people who are not enfranchised and could never be citizens under this system of enslavement and in many places, free blacks also couldn't be citizens or couldn't vote.

And so the compromise between the small states and the big states, is the one about the basically the Senate versus the House, but then attached to that is the compromise with the three-fifths clause, which is the decision, which is important in some way, this ratio, from the Articles of Confederation, that enslaved people will count as three fifths of a person for purposes of representation. And that is, you know, eventually on undone during Reconstruction, but we still have the other compromise that was the last compromise attached to that, which is the electoral college. Because the electoral college is each state's delegates in the electoral college, the delegation is the sum of your two senators plus the number of representatives and that solution to that math problem granted tremendous power to the slave South and made it very difficult to address the problem of slavery. It took a very long time to address the problem of slavery. So it's certainly due for reexamination. I mean, there's obviously perennially questions about the electoral college. It was a compromise that was made with the slave power in 1787, and has led to calls for secession from the North.

I mean, in 1812 and 1814 New England wanted to secede from the Union over what came to be called slave representation. When John Adams lost to Thomas Jefferson in 1800, people pointed out that if the South didn't have this crazy over-representation in the electoral college, because of all the people that couldn't vote but nonetheless sent delegates to the electoral college that Adams would have won. Jefferson was called the Negro president for that reason by people in the North. So there's an enormous, ongoing political battle over the electoral college as the vestige of the slave power. And I think we don't think about it in those terms today. We think about it as in the terms of rural versus urban areas. Big rural states versus states that have big urban centers, but there is still a racial inflection to that. So it's a piece of the unfinished business of our reckoning with a legacy of a constitution written in 1787.

Jeffrey Rosen: [00:33:06] We just did a podcast on the Dred Scott decision. And I saw in Justice McLean's dissent, which I hadn't read in full before, him emphasizing that Madison stressed in his notes that the Constitution would take no position on whether there should be property in men. And when Frederick Douglass read Madison's notes, he said it changed his conception of himself as a man and a citizen. Do you think we can say whether the Constitution was, or was not a pro-slavery document or is that not a question that's possible to ask in an historically principle way?

You know, I have my studentsJill Lepore: [00:33:39] debate that question. I give them a bunch of documents. Like we read the Lincoln-Douglas debates and the Frederick--I call them the Lincoln-Douglas-Douglass debates because we read Frederick Douglass' essays, including his 1860 essay called the Constitution and slavery. And so, in the interest of pedagogy I try not to state my view of this because I want to see what the students think. But I actually think that Douglass for sure, made the right decision, which I think really influenced Lincoln, which was, you know what, I've got to decide that the Constitution is on my side. Like, that's just good politics. Like, let's just accept that the Constitution did not sanction slavery. And we can use the Constitution to end slavery. Like that's the right, I think that's the right political call. And I think there's historical evidence behind that. I think, so that, you know, the best way to get yourself to that argument is to spend a lot of time reading Douglas' essays on the Constitution and Lincoln-- I think that Stephen Douglas loses that debate in 1858. So, that's how I think about it. You know, I think Tawny was basically, you know, totally lost it in that ruling. And we don't, you know, get to decide as historians what the Constitution should have said. But we do get to decide as citizens what meaning it has for us and what calls to action it leaves us with.

Jeffrey Rosen: [00:35:01] This time with you is so precious. And I have to turn it over to Kerry in just one moment, but I must ask, cause it's just so invaluable to have you condense all this wisdom about the constitutional convention. Is there anything else about the constitutional convention itself that you want our friends to know?

Jill Lepore: [00:35:20] There is one thing, which is I'm working on a new book project about the attempts to amend the Constitution. And I'm working on a big data project around constitutional amendment proposals to amend the Constitution. And I really am persuaded by the argument that the most important part of the Constitution is article five, the amendment provision. And the idea behind the amendment provision was look, if we don't make this constitution revisable, the only way to change the government will be to have a revolution. There'll be insurrections all the time. So we need to divert--this is a kind of passion problem, right? Passion versus reason--and people are going to be passionate. They won't like things that are in here and then they'll have insurrections. They'll sige the Capitol. But if we have an amendment process and it works and people can just propose amendments, we'll take it to the people, have a vote we'll ratify. Problem now is that is essentially calcified. It's, you know, the ERA was the last, you know, like it's very difficult to amend the Constitution. It shouldn't be this difficult. And I think it's a huge problem for our political culture. So I'm very pro-amending the Constitution. And it's why I've undertaken this project. So, I just wanted to give a shout out to article five.

Jeffrey Rosen: [00:36:25] Wonderful. Thank you so much, Professor Lepore. Back to you Kerry.

Kerry Sautner: [00:36:29] And our students will be so happy. We run an entire week on article five and they could send you a million ideas to get passed. So, two questions from our students. One, kind of more fun, but the other thing they wanted to know is do you think they could call for another constitutional convention or do you think the calls for it have any kind of leg to stand on?

Jill Lepore: [00:36:50] So I don't know if anybody has seen--some of your teachers might've seen, or the students-- the play, what the Constitution means to me. And it's been, yeah. At the end of which there's a kind of discussion of whether or not to have a new constitutional convention. And you know, the arguments for it are there are many continued defects with the Constitution, things that the people should be deciding. The argument against it is the same as it always was. Do you really trust the people? Wouldn't we end up with like, maybe we'd end up with a really worse constitution? S I don't, I don't know. I'm not a big proponent of the new constitutional convention myself. No,  I think we need to have a healthier and more dynamic amendment process.

Kerry Sautner: [00:37:32] Got it. Okay. That's a, I like that answer. You wrap them back together. And then the next question, this came from Gavin, and then from Fleet and from Leonard is really how do we grapple? And not just in the past about having this denial of rights and glorification at the same time. How do we grapple with that today? When teaching it, when talking about it, when deciding it, people always want to take a side and say, you know, this is great or this is awful. We always say, it's like, you're making people a hero or a villain, but how do we balance that in a way, when we're talking about the Constitution, we're talking about our American history and our past past, what are kind of some guiding principles we should follow as learners and teachers?

Jill Lepore: [00:38:12] I mean, a principle that I have that applies to the Constitution, and really to all things that I might teach, which is all of it belongs to all of us. Like there is, this is not somebody's constitution and not somebody else's constitution. You know, Shakespeare doesn't belong to the descendants of the people who lived in seven didn't 16th century England, or, you know, my family's Italian, Dante's not the only book I could read that I could feel like belongs to me. Well, this is the inheritance of humankind. Anybody can interpret the Constitution. And there's a matter of, you know, belonging in the United States, participating in the experiment that is this nation. You know, it belongs to all of us.

So, what, and I think we all, that also means we all inherit its burdens. I don't think anybody is free of those burdens. You know, my family wasn't in this country until a generation or so ago, and yet I feel like we, and, you know, we inherit the very anguished, you know, sort of litany of atrocities, that is part of the story of American history. And we also inherit the glories and wonders and ingenuity and generosity and idealism of the American experiment. I think that's kind of the deal. It's like your family, you know, you might really have some people in your family that really piss you off and some people you might just really admire, but it's all your family. And  I do think it's actually, because I do believe in the nation state, because I think nation states that have constitutions can guarantee rights to people and I think we can't afford to be throwing away that institution. So, I think, you know, I tend to say like, let's like, let's stipulate. This constitution is all of ours. And that means we all can disagree with it. We all can defend it. You can take some of it and leave, you know? And then your obligation is given what you believe about it, what do you do? You know, what do you do?

So an exercise I do with my students when we have two weeks when I teach the U.S. iStory survey, where we deal with the Constitution as the Constitution, it's in every other week, but we have a week where we debate the question, did the Constitution require a bill of rights? And then we have a week where we ask the question, did the Constitution sanction slavery? There are plenty of other you know, we do a lot of citizenship and immigration cases. We do a lot of constitutional law in my class, so we debate constitutional questions later on, but in terms of the basic architecture of the Constitution-- although the course I taught this past fall, the last week of this semester, I always let the students decide what we will debate and they chose to debate whether or not we should have a new constitutional convention. So I guess that's on their to-do list which is interesting to me.

So I guess maybe we do have a third question and you know, and you can say the Constitution has been reinvented three times. I mean, it was invented in 1787. It was reinvented during Reconstruction was completely reinvented during the New Deal, during the progressive era and the New Deal, which is the last big period of of amendment, right. All the progressive era amendments. So if you, I guess I would say to students, you know, whether they want to have a new constitutional convention or just amend the thing, what's on the list? You know, if you could, if we could enter a new constitutional era, what would those things be and how confident are you that you could anticipate the malign, possible malign, unintended consequences of changes that you might make.

Kerry Sautner: [00:41:40] And this has been an amazing class and what a call to action to all of our students is to always look at that constitution, look at it for its whole being what we always referred to for Professor Jeffries from earlier this year, the hard history and the whole history, but then also don't forget that call to action, which is the Constitution, it's powered by the people. So what are you going to do with it when you have it and you understand it? So thank you so much for this class. I'm just going to do the ass now and say, please, please come back and teach our students again. We will bug you in the future and we would love to have you back for one of our classes, with our students from across the country.Thank you so much for this great talk and thank you for staying longer than your due time. So we really appreciate it.

Jill Lepore: [00:42:24] All right. Thanks everyone.

Kerry Sautner: [00:42:25] Thank you.

Jeff Rosen: [00:42:26] Thank you so much for spreading so much light. Bye everyone.

Kerry Sautner: [00:42:30] Thank you, everyone. That was an awesome class!

Jackie McDermott: [00:42:33] This episode was produced by me, Jackie McDermott, along with Kerry Sautner and the education team at the National Constitution Center. It was engineered by David Stotz. Please rate, review, and subscribe to the show on Apple podcasts or follow us on Spotify and join us back here next week.

On behalf of the National Constitution Center, I'm Jackie McDermott.

Loading...

Explore Further

Town Hall Video
The Pursuit of Happiness: A Book Launch and Conversation with Jeffrey Rosen and Jeffrey Goldberg

National Constitution Center President and CEO Jeffrey Rosen launches his newest book in conversation with Jeffrey Goldberg of The…

Blog Post
On this day, the Confederate Constitution is approved

On March 11, 1861, delegates from the newly formed Confederate States of America agreed on their own constitution. And much of it…

More from the National Constitution Center
Constitution 101

Explore our new 15-unit core curriculum with educational videos, primary texts, and more.

Media Library

Search and browse videos, podcasts, and blog posts on constitutional topics.

Founders’ Library

Discover primary texts and historical documents that span American history and have shaped the American constitutional tradition.

News & Debate