Why the Constitution is making our politics worse (From the archives)

**Shumita Basu** (0:00)
Hey there, it's Shumita. I am still out on parental leave, but in light of the 4th of July and the United States celebrating its 250th anniversary, we wanted to bring you this episode from our archives about one of our founding documents, the US. Constitution. Enjoy.
This is In Conversation from Apple News. I'm Shumita Basu. Today, is the US. Constitution too hard to change?
Historian Jill Lepore has spent a lot of time studying and writing about the US. Constitution. And she says there's one big problem with it, a problem that feeds many other issues with our politics right now. We're not amending it enough.

**Jill Lepore** (0:51)
We have really abandoned the practice of convening to deliberate over fundamental law as citizens. There's a vicious circle in which partisanship and polarization make amending the Constitution more difficult, and failing to amend the Constitution makes polarization and partisanship worse.

**Shumita Basu** (1:09)
Jill has spent the past few years working on the Amendments Project, a catalog that attempts to compile and classify every single attempt to revise the US. Constitution from 1789 to present day. And that process has yielded a fascinating archive of woulda, coulda, shouldas throughout our nation's history.

**Jill Lepore** (1:28)
If you look at all the failed attempts to amend the Constitution together, they constitute kind of an incredible record of the political yearnings of the American people. Just because amendment is almost impossible to achieve doesn't mean that what people propose is irrelevant, right? Like it actually then becomes a kind of index of the popular will.

**Shumita Basu** (1:48)
Jill is now out with a book called We the People, A History of the US. Constitution, in which she makes the case that the modern unwillingness to amend the Constitution underlies many of the challenges we're now facing. Polarization, power struggles between the branches of government, and a deep sense of democratic fatigue. And a quick note here that Jill and I spoke before the fatal shooting of Charlie Kirk and the subsequent renewed conversations about free speech and First Amendment rights, so you won't hear us discuss that.
We started our conversation by talking about how the Constitution is still changing all the time, just not through the formal amendment process.

**Jill Lepore** (2:29)
The idea of amendment is you should be able to make fundamental changes as a people using this mechanism, this little special device that we have here. And if you can't, you're going to have to seize power in other ways.
So the end runs that we have made around our broken amendment provision are, one, most frequently over the course of American history, during eras when it's too difficult for whatever reasons to do with partisanship generally to amend the Constitution, people go to the courts instead, go to the Supreme Court instead and the Constitution is changing all the time. The court changes its interpretation of the Constitution all the time. And generally, the pattern works that eventually people get really fed up with the court having all that power. The court loses legitimacy, there's a kind of political revolution, an amendment again becomes possible for a while.

**Shumita Basu** (3:18)
So you're saying it's a bit cyclical?

**Jill Lepore** (3:20)
It's a bit, it's sort of hydraulic. Yeah, I mean, the Constitution is going to change, right? It's just going to change, like circumstances change. And if it isn't changing by amendment, it's going to change in another way. At the moment, sure, the court is changing the Constitution all the time. But at the moment, we're in this very weird situation where the president is changing the Constitution all the time, simply by declaring it to be so.
And there's nothing in the Constitution that provides for that. It is not among the duties of the executive to reinterpret the Constitution to suit a political agenda. But we are in some ways in very new territory in terms of the executive authority over the Constitution.

**Shumita Basu** (3:58)
Yeah. I mean, I feel like the first few months of Trump's second term in office, the phrase constitutional crisis was being used a lot. Are we in a constitutional crisis? Does this justify, does this categorize itself as a constitutional crisis? I feel like I'm not hearing that phrase as much anymore. I am hearing more authoritarian turn kind of language.
I don't know how you feel about that as a phrase constitutional crisis, but what does a moment like this reveal about the limits or the weaknesses of the Constitution as it currently stands?

**Jill Lepore** (4:34)
Yeah, I think, you know, honestly, some of the fading away of the generally, I would say, pointless public debating of whether we are or not, are or are not in a constitutional crisis, is that the language of crisis is what has justified the usurpation on the part of the executive of so many powers of the legislative branch of our government, right? So I write for The New Yorker and I wrote a piece about the first 100 days of Trump's administration and I end of the second term. And I wrote a lot about the use of emergency powers, emergency declarations, which, you know, it's not that other presidents haven't declared emergencies and used emergency powers. And it is a way to bypass Congress and secure more essentially law-making power for the White House. And in fact, Democrats did that first, right? Like that in terms of the modern overuse of emergency powers, that is on Democrats. But Trump's use of declarations of emergency and emergency powers just outpaces everyone else's by an extraordinary measure.