Notwithstanding its title, Harvard professor and New Yorker writer Jill Lepore’s new book, We The People: A History of the U.S. Constitution, is not a history of the Constitution but of constitutional amendments — that is, of efforts to change the Constitution. And the reason that the subject interests her is that she doesn’t think much of the Constitution to begin with.
Lepore recites the usual litany of progressive reasons: it’s “outdated,” it encompassed slavery, no women helped write it, etc., often phrasing these in exaggerated terms and even outright falsehoods, such as when she repeatedly claims that women are “not persons under the Constitution.” She then proceeds through the decades to show how various people sought to alter it. But instead of objectively weighing the costs and benefits of proposed amendments, she indulges in good-guy-bad-guy caricatures in which noble heroes of progress aimed at social justice, only to be resisted and sometimes foiled by the greedy minions of capitalist patriarchy. The shallowness of this performance leads her not only into repeated untruths, but into a broader argument about constitutional law that makes no sense at all.
Consider her account of early 20th-century efforts to adopt an amendment banning child labor. Nowhere in 702 pages does she explain why people opposed this. In her telling, it’s a story of conscientious reformers versus avaricious factory owners. In reality, child labor was a significant source of income for impoverished families in the 1900s, and while it may have been unpleasant, outlawing it meant cutting off precious opportunities for the poor without compensating them for those losses. Lepore may think the costs were outweighed by the benefits, but she never even considers the dilemma, let alone resolves it.
Or take her discussion of Puerto Rico: in describing its “struggle for independence,” she bemoans the fact that it remained an American territory after World War II, which she sees as demonstrating “the limits of the United States’ commitment to decolonization.” In fact, Puerto Ricans themselves overwhelmingly opposed independence in the 1940s and still do. The Puerto Rican Independence Party has never received more than 12% of the vote. In 2008, it got 2%. And in a 2024 plebiscite, nearly 60% of Puerto Ricans endorsed statehood. Lepore makes no mention of this, leaving the story to sound like a tale of imperial hegemony.
Equally insidious is her version of Adkins v. Children’s Hospital, the 1923 Supreme Court case striking down a minimum wage law for women. By raising the cost of employing female workers, that law incentivized employers to fire them and hire men instead — a prime example of what Justice Ruth Bader Ginsburg called laws “premised on the notion that women could not cope with the world beyond hearth and home,” and which, although “apparently designed to benefit or protect women,” actually had “the opposite effect.” Elevator operator Willie Lyons lost her job as a consequence of this paternalistic law and sued. She won, with the court declaring that the 19th Amendment, guaranteeing women the right to vote, also implicitly abolished the paternalistic notion that government knows best what wages women should accept for their work.
But to acknowledge Adkins as a victory for women’s freedom would require admitting that government shouldn’t dictate wages, and that’s anathema to Lepore’s progressive assumptions. She therefore never mentions Lyons; misrepresents the court’s decision, for instance, by claiming the justices concluded that women’s financial circumstances had become equal to those of men, which they never said; and concludes by endorsing the view of the Marxist Frances Kelley, who ludicrously called Adkins “a new Dred Scott.”
Lepore makes many other false assertions, both trivial and crucial. She claims that American missionaries brought diseases that killed many Native Hawaiians — it was the whalers — and forced the Hawaiians to learn writing. Actually, they zealously embraced the gift of literacy. She claims that the Civil War was “a war over the nature of constitutional change,” when, in reality, each side claimed that the Constitution already supported its position and needed no change. She claims that the Supreme Court ruled in the Slaughter-House Cases that the 14th Amendment’s privileges and immunities clause “was binding only on the federal government, not the states,” which is not at all what it said. She claims that “when, in the 1770s and ’80s, American men wrote their first constitutions, they left women out,” when in fact Thomas Jefferson, John Adams, and John Dickinson, all of whom wrote constitutions, used the word “person” to ensure that they would apply equally to men and women. Jefferson even wrote that “females shall have equal rights with males” with respect to inheritance. She says Ronald Reagan “supported abortion” before changing sides for political advantage, which is a gross misrepresentation — as governor of California, he signed a bill legalizing abortion in cases of rape, incest, or to save the woman’s life, which is hardly “supporting” abortion. She quotes with approval black power activist Nathan Hare, who said, “The real solution to the environmental crisis is the decolonization of the black race” — which is … well, what does that even mean?
Worse than all this is Lepore’s misrepresentation of originalism, the legal theory that the Constitution should be understood today to mean what it meant when ratified. There are good, even persuasive arguments against originalism, but readers won’t find them here. Her take begins, naturally, by mischaracterizing originalists, who, she claims, “rely on an artificially bounded historical record” and only cite The Federalist Papers, the writings of James Madison, or other such documents as proof of original meaning, while ignoring other important evidence. Not true — originalists employ many tools, including the highly advanced method known as corpus linguistics, to scour newspapers, dictionaries, private letters, and other 18th-century writings to formulate a robust understanding of the Constitution’s language.
She then argues that originalism was invented by 20th-century reactionaries as a way to stand athwart the progress toward social justice, only barely mentioning the fact that figures such as Abraham Lincoln and Frederick Douglass also appealed to the framers’ intent when arguing that slavery and other forms of oppression were unconstitutional. She also claims that the framers themselves weren’t originalists. But the idea that judges should seek to implement the will of the lawmaker is an ancient one. As far back as 1584, English courts held that judges should interpret laws “according to the true intent of [their] makers.” Madison himself wrote that he “entirely concur[red] in the propriety of resorting to the sense in which the Constitution was accepted and ratified. … In that sense alone it is the legitimate Constitution.”
GOVERNANCE BY THREAT, NOT CONSTITUTIONAL ORDER
Equally striking is how Lepore’s bias — it cannot be called a case — against originalism leads her into self-contradiction. She’s enthusiastic about amendments and criticizes Franklin Roosevelt for asking courts to rationalize the New Deal in the 1930s instead of seeking amendments to constitutionalize it, because this effectively replaced the democratic method of change with a focus on judicial reinterpretation. But if seeking the original understanding of the Constitution is a fool’s errand, it’s hard to see what’s wrong with that. Either the Constitution’s meaning is fixed by something, so that changing it requires amending it, or not.
Lepore does suggest one answer, implying without quite saying that its meaning should be determined by public opinion. But a constitution that means whatever the majority says it means — as determined by whom? — is no constitution at all. “Amendment rests on a theory of change,” she writes, and that’s true. But it also rests on a theory of constancy, and she provides none. Without it, We the People collapses into a muddle. Lepore may scoff at the idea of lawyers doing history, but the poor quality of work on display here inspires little confidence in her own profession.
Timothy Sandefur is the vice president for legal affairs at the Goldwater Institute.
