Jill Lepore is a professor of American History and of Law at Harvard and a staff writer
at the New Yorker. Her latest book, We the People: A History of the U.S. Constitution (W.W. Norton, 2025) argues that the philosophy of amendment—to correct, improve, reform—is among the founding ideals of our Constitution, but that the legal vehicle for amending—Article V—has proven much harder to use than the framers anticipated, with negative consequences for our body politic and society. Lepore and Dean Odette Lienau recently discussed what the current state of constitutional scholarship and jurisprudence means for our time.
OL: Boston College has a real interest in the intersection of law and history. How do you think history can help us see overlooked elements in the law?
JL: Years ago, I realized that we didn’t have a documented record of constitutional possibility. So, I applied for funding, hired some undergraduates, and compiled a publicly available free database—The Amendments Project—of the tens of thousands of attempts we could find to amend the Constitution. That data became the spine of my book.
I also recently co-directed a course on how technological change outpaces legal change. We’re in a political crisis that results from the law’s inability to address how technological change has poisoned public discourse. There is a reason the law is slow, but there are consequences. Analytical tools from the study of history can help conceptualize that problem.
OL: What’s the takeaway for those in the legal profession?
JL: In the sixties and seventies, a new generation of scholars pioneered women’s history and African American history and gay studies, sexuality and gender studies, Asian American history, Chicano studies, Native American history—and gave us a more accurate, richer account of the American past. To the degree that constitutional history was still taught, it largely went to law schools. There, it was taught as a chain of Supreme Court decisions that make up the current interpretation of the Constitution, and necessarily so. But that diminishes the role of ordinary Americans in understanding, disputing, interpreting, revising, protesting, endorsing, worshiping, disavowing—whatever it is that they’re doing with the Constitution—across two and a half centuries. In fact, it is the people’s Constitution and they are its authors.
OL: Having facility with legal history seems increasingly important as a tool of legal persuasion and of legal and political argument.
“If courts ask us to narrow our view of what’s possible in the present to what they consider meaningful in the past—and then willfully turn aside from the vast body of historical evidence that tells us about all of the people—we can’t live under fairly made law.”
Harvard professor and New Yorker staff writer Jill Lepore
JL: Absolutely. Legal scholar Reva Siegel has written about the extraordinary size of the documentary record of American women writing about constitutional rights and freedoms. But not once has the Supreme Court ever cited any one of those historical documents. It is as if these women never existed. They’re not in the Federalist Papers. They weren’t at the ratifying conventions in 1787 and 1788. These lives, these views, these opinions, these—what I would consider to be—constitutional texts, don’t count. They’ve been set aside.
The historical record includes other people clamoring outside those meetings, saying: This is wrong. Why did this Constitution not end slavery? Why are women not persons in this Constitution? If courts ask us to narrow our view of what’s possible in the present to what they consider meaningful in the past—and then willfully turn aside from the vast body of historical evidence that tells us about all of the people—we can’t live under fairly made law.
OL: In your epilogue, you write, “It is clear that no change to fundamental law about the relationship between humans and the natural world can happen without a restoration of the philosophy of amendment.” You’re talking about our inability to amend the Constitution and its implications for the climate crisis, and also AI. What do you hope readers will take away from that?
JL: Not only is an unamendable constitution unable to deal with the crisis of the natural world, but it’s also unable to deal with AI and the possible emergence of what some people refer to as successor species. We’re just tinkering around the edges. The conversation is like, should I allow my students to use AI for their briefs? Must I AI-proof my exam? How can I design an assignment to use the latest for-profit corporate tool that our library has purchased? This seems inadequate when we’re possibly confronting a new era in human history. How does this development not trigger massive conversations in law schools? This truly baffles me.
OL: Perhaps these questions should be contemplated as constitutional-level questions. Maybe we need to think of constitutions as existing within the broader framework of fundamental political theory.
JL: That’s a really good point. But maybe it’s that political theorists, within the framework of political theory, ought to be calling on law schools to help them think through using the tools that lawyers have as well.
