It seems that one of the cornerstones of establishing a religion is the holy book; one that lays out the core beliefs of a faith, often inspired or even written by a god or gods. For many in the United States the Bible serves as this sacred text. Indeed, so deep is the faith of some that, not only does the Bible reflect their view of the world; it is seen as the inerrant word of God himself. Despite the human hands during the last two thousand years that have assembled, interpreted, and translated the various versions of the Bible that are in circulation today, there are many among us who see the words on the page as the direct will of God… without error or contradiction.
Of course, there is no harm in our fellow citizens offering up their faith in this way. That is, until they begin seeing, and then acting upon, the notion that the founding documents of our nation—laying out the principles of liberty that drove the struggle for independence and the plan of government inspired by those same ideas—are to be similarly venerated; touched by God and therefore not to be trifled with.
Over the last sixty years or so, a similar veneration and equally magnanimous feeling has been directed towards the Framers of the US Constitution. While not necessarily viewing these men as god-like, there is a growing tendency, particularly among Christian nationalists, to see these men as wholly inspired, if not personally directed, by God. This is a bunch of hooey.
It wasn’t until the early twentieth century that the term “Founding Fathers” was popularized and only in 1973 that the specific members of this club were identified as John Adams, Benjamin Franklin, Alexander Hamilton, John Jay, Thomas Jefferson, James Madison, and George Washington. While many others contributed to the founding, these seven have been especially celebrated into near-mythical status.*
This relatively recent phenomenon has served the interests of conservatives who, a half-century ago, rejected many of the Supreme Court decisions of the Civil Rights Era that affirmed the Constitutional rights of African-Americans, other people of color, women, the accused, the disabled, and more.
These right-wing zealots have facilitated their efforts by inventing the interpretive notion of originalism and textualism; the idea that the Constitution should be interpreted by examining closely what the Framers wrote, what was on their minds at the time, and therefore, what they intended.
The very serious problem with this approach is that originalists, including a majority of today’s Supreme Court, ignore the wide diversity of thought among the Framers. They also fail to acknowledge the longer history of the US Constitution and the manner in which it has been interpreted and amended.
The enlightened task of correcting these politically motivated misconstructions has been taken up by acclaimed historian Jill Lepore in We the People: A History of the U.S. Constitution (2025). Without setting out to necessarily do so, Lepore destroys the originalist argument and backs it up with 75 pages of detailed notes.**
This marvelous and very readable book focuses on the manner in which the Constitution has been formally amended using Article V including, perhaps most tellingly, the more than 11,000 amendments that have been proposed, yet not ratified, in Congress.***
This history also documents how the Supreme Court has interpreted the Constitution over time, often in reaction to changing circumstances. It is this part of the history that originalists tend to ignore… at least when it is convenient. Rather than determining what the Framers’ intent was, Lepore cites Founding Father Thomas Jefferson who, forty years after the nation’s independence, wrote that “‘the laws and institutions must go hand in hand with the progress of the human mind,’ and constitutions need amending as ‘new discoveries are made, new truths disclosed, and manners and opinions change with the change of circumstances.’”
Not only did the Framers include the means by which future generations could amend the Constitution in Article V; they openly acknowledged that what they wrote would require future generations to adapt their plan to unforeseen changes in American life.
This is put forth most eloquently by none other than the Father of the US Constitution, James Madison, who wrote in 1787 that, “Is it not the glory of the people of America… that, whilst they have paid a decent regard to the opinions of former times and other nations [in crafting the Constitution] they have not suffered a blind veneration for antiquity [as originalists do], for custom, or for names, to overrule the suggestions of their own good sense, the knowledge of their own situation, and the lessons of their own experience?”
“At the Constitutional Convention in Philadelphia in 1787 everyone knew the Constitution was imperfect…” Lepore writes. The disagreements over its framing were so severe that, of 55 delegates to the convention, only 39 actually felt confident enough to attach their name to it; and many of these with great reluctance.
One of those who did sign was Pennsylvania delegate James Wilson, who wrote in 1791 “that the supreme or sovereign power of society resides in the citizens at large; and that therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem expedient.”
This is completely contrary to what originalists put forth. And the greatest absurdity is that originalists ignore the mountain of evidence that the Framers’ intent was that their “intent,” due to the wide diversity of thought, could not be ascertained with any real clarity.
The plan of government they did provide us – and also the arguments they had with one another—lay out several principles through which we could govern ourselves; popular sovereignty, checks and balances, separation of powers, federalism, and more. By fabricating a theory of judicial interpretation, originalists are now responsible for violating many of these very principles.
Modern originalists such as failed Supreme Court nominee Robert Bork, former Supreme Court Justice Antonin Scalia, and current Justice Clarence Thomas, who might be considered the promulgators, if not the inventors, of originalism, conveniently ignore the views of the founders they claim to so deeply admire.
As to the originalist elevation of the Founding Fathers, Thomas Jefferson saw the dangers in this. “Some men look at constitutions with sanctimonious reverence,” he wrote “and deem them like the arc of the covenant, too sacred to be touched… They ascribe to the men of the preceding age a wisdom more than human, and suppose what they did to be beyond amendment.”
While criticizing the difficult demands of Article V to formally change the Constitution—and also offering suggestions as to how to fix this—Lepore explores the many state constitutions and the very regular changes that have been made to them throughout our nation’s history.
As Lepore writes, “Jefferson knew those men were never so wise and that the constitutions they wrote were flawed.” She adds firmly, and with much evidence, that “This was not a quirk of Jefferson’s eccentric mind; it was the principle upon which the United States was founded, an idea embraced by an entire generation.”
The US Constitution, she writes, “was meant to be revised, updated and improved. The eighteenth century was an age not only of revolution and empire but also of enlightenment animated by the idea of progress—political, scientific, economic, and moral.”
The Framers also knew that the progress of the age in which they lived would continue, the nation would expand, and that the plan of government should be modified to meet these changing circumstances. “By far the most radical innovation [within the Constitution],” Lepore writes “was the provision they made for their own repair and improvement by the people themselves, to the end it may be a government of laws and not of men.”
How on earth can one argue that the Framers intended that they would tell us how to govern ourselves?
It is no coincidence that in the same year an historian first specifically identified seven Founding Fathers in 1973, and also about the time that the idea of originalism began percolating, a right-wing think tank was established with the goal of influencing public policy. Today, the Heritage Foundation’s Project 2025 serves as a blueprint for the sweeping changes occurring within our government and our entire society.
The current political environment makes changing the Constitution extremely difficult. Since three-fourths of the states must approve an amendment in order to ratify, either through the legislatures or state conventions. Antonin Scalia once noted that “something like less than two percent of the population can prevent a constitutional amendment.”
In the wake of the Civil Rights Era, when sweeping “changes” to the Constitution were made possible through Supreme Court decisions, conservatives determined that, rather than amending the Constitution through the difficult road map laid out in Article V, they could “change” the Constitution through interpretation. This is what is happening today.
Nonetheless, Jill Lepore hopefully and repeatedly identifies needed changes to the Constitution including “the Electoral College, the malapportionment of the Senate, and life tenure for Supreme Court justices…”
More than two-thirds of the American people want to abolish life-time tenure for Supreme Court justices.**** More than 60 percent of Americans want to abolish the Electoral College.*****
The steepest obstacle in Lepore’s effort to re-establish the will of the people arises from the fact that the provision for amending the Constitution [Article V] explicitly states “that no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.”
Five states have fewer than one million residents and each of them has two US senators. Ten states have over ten million residents including Texas and California with over 30 million. Their representation in the Senate is equal to Wyoming with fewer than 600,000 residents.
Jill Lepore argues forcefully that amending Article V would undo this “tyranny of the minority” and also provide the opportunity to make amending the Constitution more in line with the will of the people; and, thanks to her outstanding scholarship, there is no doubt that it was the intent of the Framers, because they repeatedly stated this explicitly, that the will of the people should prevail.
*Seven Who Shaped Our Destiny (1973) by historian Richard B. Morris
**Lepore is also the author of These Truths: A History of the United States (2018) which I commented upon in 2023. https://topanganewtimes.com/2023/07/14/these-truths/
***https://archivesfoundation.org/amendments-u-s-constitution/
****https://apnorc.org/ap-norc-poll-2-in-3-in-us-favor-term-limits-for-justices/
