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IS THE CONSTITUTION ‘DEAD, DEAD, DEAD’?  
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Laurence H. Tribe
January 22, 2026
The New York Review of Books
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_ The difficulty of amending the Constitution does not mean that it
is a flawed and outdated relic of a distant past. _

, Illustration by Paul Sahre

 

REVIEWED:We the People: A History of the US Constitutionby Jill
LeporeLiveright, 702 pp., $39.99

For years my distinguished Harvard colleague Jill Lepore has brought
deep understanding and narrative eloquence to her explorations of
American history, from slavery in eighteenth-century Manhattan to the
Tea Party movement. In her ambitious new book, _We the People: A
History of the US Constitution_, she builds on the Amendments Project,
a huge digital collection of every significant proposal to revise the
US Constitution, which she began assembling in 2020 with the support
of the National Endowment for the Humanities.

 
Early in the book Lepore quotes the political scientist Jacob Tanger,
who in 1916 described the proposed amendments as “an index of real
problems confronting the government and the people.” By examining in
_We the People_ “not only the twenty-seven constitutional amendments
that have succeeded but the countless numbers that have failed,” she
aims to “recover lost and overlooked constitutional intentions,
meanings, and understandings.” Quoting the constitutional scholar
Richard Albert, Lepore notes

 

the overwhelming interest among scholars of constitutionalism in
techniques of informal amendment—changes in constitutional meaning
without a corresponding modification to the constitutional text.

But she makes clear that her interest lies elsewhere: her focus is
strictly on how the written words of our Constitution change, or fail
to change, over time.

In her introduction Lepore acknowledges that “all written
constitutions contain unwritten elements,” and she even quotes John
Quincy Adams’s observation that the “written and printed copies”
of the “system of fundamental laws, by which the people have
consented to be governed,” are “nothing more than the evidence”
of that system. But she nonetheless puts the “ink on parchment” on
a distinctly higher plane, emphasizing its unique “stability” and
“endurance akin to inheritance.” In contrast, she treats the
Constitution’s “unwritten elements” as wispy and swirling, akin
to the “invisible” argon and helium gases in the “double-paned
bulletproof glass case” at a Boston museum that preserve John
Adams’s great Massachusetts Constitution, ratified in 1780, “from
the forces of decay: water and oxygen and sunlight.”

In making that striking comparison, Lepore reveals a lack of
appreciation for the fact that it is those very
“elements”—judicial decisions, congressional interpretations,
ever-changing popular beliefs—that can keep a written constitution
alive over time regardless of the obstacles to formally altering its
written text. Indeed, by giving short shrift to the ways that the
Constitution’s meaning has evolved as its text has become interwoven
with our nation’s traditions and experiences to create an integrated
whole, Lepore all but ensures that her book will not be a history of
the actual Constitution of the United States, written and unwritten,
like Richard Fallon’s _The Changing Constitution_ (2025), Jack
Balkin’s _Living Originalism_ (2011), or Akhil Amar’s magisterial
_America’s Constitution: A Biography _(2005) and _America’s
Unwritten Constitution_ (2012).

 
 

_We the People_ is instead the story of a barren, inert constitution,
one that lacks—indeed excludes—much of what nearly everyone
studying or using the US Constitution has come over time to consider
its central features as our living fundamental law. Those features
inform the evolving powers of the national legislature to regulate
economic affairs; the ever-shifting relationships among the three
federal branches and between the judiciary and the agencies created by
the national legislature; the fluctuating rights and limits of the
states as entities entitled to fair treatment by and a degree of
independence from the federal government; and the unwritten rights of
individuals to personal privacy, equal dignity, and bodily autonomy.

Lepore commends the ingenuity with which the Constitution “accounted
for the passage of time” but says it did so only by including a
provision, Article V, that made it formally possible to amend the
text—something that all written constitutions have necessarily done
since the late eighteenth century.

ARTICLE V The Congress, whenever two thirds of both Houses shall deem
it necessary, shall propose Amendments to this Constitution, or, on
the Application of the Legislatures of two thirds of the several
States, shall call a Convention for proposing Amendments, which, in
either Case, shall be valid to all Intents and Purposes, as Part of
this Constitution, when ratified by the Legislatures of three fourths
of the several States, or by Conventions in three fourths thereof, as
the one or the other Mode of Ratification may be proposed by the
Congress; Provided that no Amendment which may be made prior to the
Year One thousand eight hundred and eight shall in any Manner affect
the first and fourth Clauses in the Ninth Section of the first
Article; and that no State, without its Consent, shall be deprived of
its equal Suffrage in the Senate.

Regarding Article V as deeply flawed because it made amending the
Constitution too difficult, she frames her book as a social history of
the mostly failed attempts to do so—among them, intriguing and
highly suggestive proposals from unjustly marginalized communities
that she brings brilliantly to life, as well as a multitude of
proposals that she reasonably judges silly or pernicious.

Repeatedly stating that her effort is descriptive, not prescriptive,
Lepore nonetheless treats the low percentage of proposed amendments
that have made it into the Constitution’s text as somehow
demonstrating that a less onerous ratification process would have been
better—a conclusion that obviously doesn’t follow. Whatever its
value as social history, _We the People_ is highly misleading as legal
history and jeopardizes today’s urgent project of preserving our
republic and protecting its surviving strands of democracy from the
forces of tyranny—tyranny that Lepore abhors as much as anyone. Her
history does so by inadvertently giving fuel to those who disparage
the Constitution as an unacceptably flawed and compromised relic of a
distant past, proclaim it to be frozen in time, and favor scrapping it
and beginning anew.

Lepore is reluctant to make pronouncements about the viability of the
Constitution as a whole in terms as sweeping as some scholars have
used. The political theorist Stephen Skowronek in _The Adaptability
Paradox: Political Inclusion and Constitutional Resilience_ (2025),
for example, argues that our founding document, exclusionary at its
birth, has outgrown its structural bounds as we’ve tried to apply it
to a sprawling multiethnic polity. He reasons that something entirely
different is now needed, lest we find ourselves with an unacceptable
choice between total system collapse and abandoning the noble
experiment of ever greater inclusion. Lepore does not go quite that
far. But it is difficult to escape the implication that if Article V
is effectively inoperative, as Lepore argues it has become, then the
Constitution must be, to quote the always trenchant Justice Antonin
Scalia, “dead, dead, dead.”

According to Lepore, the central problem presented by any written
constitution, an obviously “different creature from an unwritten
one,” is this: “How is a government established by a written
constitution to be altered except by its destruction?” Her answer is
what she calls a “philosophy of amendment”—a “philosophy”
that she never describes beyond offering definitions of what it means
to “amend” (“to correct; to reform; to improve or make better,
by adding what is wanted, as well as expunging what is wrong”) but
that she nonetheless assures readers is “the essential contribution
of American constitutionalism” to the world.

 
 

That’s a remarkable and unprecedented—and in my view
unwarranted—judgment. The separation of powers, the basic idea of
checks and balances, and the architecture of federalism have all had
far greater impact than the details of Article V (or its underlying
“philosophy”) on the designers of constitutions everywhere.
Indeed, those details and whatever philosophy they reflected consumed
relatively little of the time and energy of the Philadelphia
Convention and of the state ratifying conventions. And there’s no
doubt that other nations were far less powerfully influenced by
Article V than by such history-shattering facets of the US
Constitution as its distinctive placement of sovereignty in “We the
People” rather than in any government or ruler, making its radical
Preamble a more groundbreaking source of global influence than
anything about the mechanism we chose for making future changes to the
text.

Lepore’s gloomy verdict on the supposedly “essential
contribution” of Article V’s provision for revising the text as
needed—a provision that, approvingly citing another scholar’s
evaluation, she deems “the keystone in the arch of the
Constitution”—appears both at the start of her book and at the
end: the “framers did not succeed.” Her argument is that they
sought and failed to design a “constitutional road” that would
find the “sweet spot…a method of amendment” that would guard
against what James Madison called “that extreme facility, which
would render the Constitution too mutable,” and “that extreme
difficulty, which might perpetuate its discovered faults.” In her
words, “Not too easy, not too hard.” I don’t know anyone who
would describe Article V, which bears many of the ugly compromises
that mar the rest of the original Constitution, as anything like
“perfect,” though Lepore reminds us that Madison chose to describe
it that way in 1788 in what was basically a puff piece supporting the
Constitution’s ratification. But Article V’s limits cannot justly
be described as fatal weaknesses. I can only conclude that the failure
is not the framers’ or, more to the point, the Constitution’s, but
Lepore’s.

Among the shortcomings of Lepore’s thesis is that she depicts the
contents and operation of Article V as far more pivotal to the entire
constitutional project than they in fact were. To do so, she
artificially truncates her inquiry into the Constitution’s
adaptability, making it a numerical assessment of the accumulated
attempts to change its written text and noting how many more of those
attempts failed than succeeded. She also pronounces the framers’
efforts to make the Constitution amendable insufficient, both by
ignoring crucial parts of the text itself and by distorting the
historical record of alterations made in accord with that text.

In sum, she ignores the far more flexible and dynamic realities of the
largely unwritten constitution by which we live. At the end of her
gripping story of how our Constitution has been framed and interpreted
over its remarkable 238-year existence, Lepore tells us that “a
philosophy of doom replaced the philosophy of amendment” and laments
that, just as other written constitutions around the world “lie in
various states of stagnation, decay, misuse, and nonuse” and become
“more difficult to amend because people tend to venerate old
constitutions,” there comes “a point beyond which a constitution
cannot be stretched, like a uterus, swollen with life, and instead
breaks, like a fractured bone.” Powerful imagery indeed, but with no
factual support in the historical record.

Here we come to the dangerous crux of the matter. Lepore says we will
reach the point of our republic’s death as a failed experiment in
self-government unless we “learn again to amend” or else “invent
a new instrument to guarantee liberty, promote equality, nurture
families, knit communities, thwart tyranny, and avert the destruction
of a habitable earth.” Essential to her conclusion that the
Constitution has reached that point by having become, at least for
now, unamendable and thus not a legitimate foundation for governance
is her claim that it provided for textual amendment but “did not
dictate the method by which it ought to be interpreted.”

That claim is wrong. A crucial provision that Lepore overlooks
altogether is the Ninth Amendment, about which she says nothing at all
except for a glancing reference to a wisecrack by Justice Scalia that
“if my life depended on it, I couldn’t tell you what the Ninth
Amendment was.” Yet that amendment specifically dictates a method of
interpreting the scope of personal rights that the Constitution
protects: whether a right is or is not expressly mentioned in the
Constitution cannot be a limiting factor in deciding whether it is
fundamental. Omitting the Ninth Amendment from her account is one of
the most serious failings of Lepore’s history of the document.

AMENDMENT IX The enumeration in the Constitution, of certain rights,
shall not be construed to deny or disparage others retained by the
people.

Lepore warns that her book is neither “a treatise on constitutional
law” nor “a compendium of Supreme Court decisions,” with
“apologies to lawyers, jurists, and legal scholars” for the fact
that “references to doctrines will not be found in its pages” and
that “major cases are missing.” But no such warning can excuse the
omission of crucial parts of the written Constitution itself (such as
the Ninth Amendment) or of cases so central that no “history of
American constitutionalism” can omit them.

In making her case that the Article V “door slammed shut”
fifty-four years ago with the ratification in 1971 of the Twenty-Sixth
Amendment, which lowered the voting age to eighteen, Lepore also
inexplicably fails to account for two more recent amendments.

The first of these is the Twenty-Seventh Amendment, which limits
self-dealing by senators and representatives in setting their own
salaries. Ratified in 1992, it had been proposed by Congress in 1789.
She notes that amendment’s existence, but omitting it from her
timeline leads to a twenty-one-year error in her dating of Article
V’s supposed death. No less troubling, omitting it eclipses the
ongoing debate over the legal significance of the more than
two-century lapse between its proposal and its eventual ratification.

 
 

Justice Scalia and I had a lively private exchange about that time
lapse during his 1995 Tanner Lectures at Princeton.

 
He maintained that a proposed amendment whose text contains no
expiration date is like an open-ended offer in the law of contracts:
it expires after the passage of a reasonable period of time. My
position was that although ratification should in theory reflect a
reasonably contemporaneous consensus by three fourths of the states,
the rules governing amendment ratification need to follow Scalia’s
principle that the “rule of law is the law of rules” and that a
concept like “reasonable time” is too amorphous and subjective to
provide the precision and predictability this question demands. The
issue remains unresolved, mostly because there is no authoritative
method for resolving the questions left open by Article V,
particularly given the reluctance of the judicial branch to enter the
fray. Notably, Lepore is silent on the matter, although it would seem
central to any history of which proposed amendments succeeded and
which failed.

 

Equally curious is Lepore’s handling of the better-known and still
highly controversial Equal Rights Amendment. She acknowledges in a
footnote that the ERA may well have become part of our Constitution in
2020, when Virginia became the thirty-eighth state to ratify it. But
she chooses, without explanation, to treat as conclusive the national
archivist’s decision not to list the ERA as the Twenty-Eighth
Amendment because the congressionally imposed deadline for its
ratification had passed. Doing so enables Lepore to say nothing about
the questions that are very much alive today regarding whether
ratification is a one-way process (meaning whether ratifying states
can rescind their votes to ratify an amendment in what they deem to
have been decisively different circumstances) and about the legal
effect of time limits written not into a proposed amendment’s text
but only into the congressional resolution sending it to the states
for possible ratification.

On those issues will turn the validity of any number of possible
future amendments. Indeed, on those issues turns the question of
whether the ERA, which Lepore discusses at length, is part of the
Constitution today. Yet not counting it as having been ratified
enables her to date the death of Article V nearly forty-nine years
earlier. If it indeed died in 1971, how it rose from the dead in 2020
is left to the reader’s imagination—much as today’s Supreme
Court leaves crucial matters unexplained in its so-called shadow
docket.

 
 

Treating the Twenty-Seventh Amendment and what would be the
Twenty-Eighth as nonexistent for purposes of her chronology, Lepore
asserts that “for long stretches of American history, amending the
Constitution has been effectively impossible.” Assertions of
impossibility are easier to make than to establish. Lepore plainly
wishes that the amendment procedure specified in Article V were less
constraining and that the Constitution had been made as easy to amend
as most state and foreign constitutions have proved to be, although
not necessarily quite as easy as some.

For instance, she emphasizes how some 148 of the world’s 196
constitutions, unlike ours, “address environmental protection or
environmental rights.” Although she is astute enough to recognize
that most of these provisions are “mere gestures,” she laments the
absence in our Constitution of provisions protecting the rights of
nonhuman animals, and perhaps artificial beings as well, in what she
clearly regards as a backward-looking constitutional foundation. The
lovely prose about “rivers and streams,” “mountains and
valleys,” “plants and animals” generated by such soaring hopes
brings smiles, followed by frowns, to those of us who have litigated
under the Constitution on behalf of nonhuman animals but also worry
that including purely aspirational provisions in its text, however
forward-looking and beautiful, might dilute the force of the
increasingly vulnerable rights it secures to the humans among us.

Lepore also hints but never attempts to show that the amendments she
obviously would like to have seen included in our Constitution if the
rigors of Article V were relaxed would have yielded benefits
outweighing the costs of the awful amendments that might have been
ratified had its obstacles not excluded them and thus relegated them
to history’s dustbin.

She leaves no doubt, for example, that she would be happier had an
amendment replacing the Electoral College with direct popular election
of the president not been blocked. And she makes plain her relief that
amendments making slavery impossible to abolish, making ours a
Christian nation, or limiting the federal government’s borrowing so
strictly that the budget would have to be balanced every year all
failed to clear Article V’s high hurdle. Would eliminating the
Electoral College—a change that has occasionally been opposed even
by prodemocracy civil rights groups, as Lepore documents—lead to
benefits outweighing the harms caused by making the government fund
all its expenditures by raising current taxes so as to avoid burdening
with debt those not yet born? Without offering a way of making any
such comparative assessment, Lepore is content to speculate that
Article V’s framers imagined that amending the Constitution
wouldn’t pose as much difficulty as it has. But she leaves that
unproven observation about the framers’ original expectations
hanging in the air.

It isn’t clear what to make of Lepore’s invocation of those
expectations to support her view that Article V has ended up imposing
a higher obstacle to textual amendment than it should have, given the
strong opposition expressed in all her writings to any form of
so-called originalism, which she says “follows rules…that no
historian could accept,” and given her particularly pointed
opposition to treating the merely subjective expectations or hopes of
the Constitution’s framers as significant. Even if, as she says, her
book should not be read as “a polemic against originalism,”

 
it certainly eliminates supposed conflicts with original intentions as
grounds for objecting to how constitutional provisions have come to
operate in practice. Thus we’re left with no reason at all to
conclude that Article V makes our Constitution’s text more difficult
to amend than it ought to be. That’s no small indictment of
Lepore’s project if one sees her book, as I do, as aimed at
establishing that very proposition.

 

Ithink it’s worth pausing here to consider several other
lapses—or, unhappily, misrepresentations—each of which serves to
highlight not a weakness but a vital strength of our Constitution.
Among those strengths is its delegation of power to the legislative
branch to give more expansive meaning to the rights guaranteed against
oppressive state action than the institutionally constrained judicial
branch opts to give them at any particular time. The crucial Supreme
Court decision recognizing the force of that delegation was
_Katzenbach _v._ Morgan_ (1966). Its narrowest import was to uphold a
section of the Voting Rights Act of 1965 that enfranchised a group of
Puerto Rican residents of New York whose disenfranchisement on the
basis of an English literacy test the Court had unanimously upheld in
_Lassiter _v._ Northampton County Board of Elections_ (1959). The
point of the _Katzenbach _ruling, it must be stressed, wasn’t to
overrule _Lassiter_ but to establish that federal legislation enacted
under Section 5 of the Fourteenth Amendment, often called its
Enforcement Clause—“The Congress shall have power to enforce, by
appropriate legislation, the provisions of this article”—could
expand civil rights beyond what the Supreme Court would recognize
based on the Equal Protection Clause alone.

 
 

Thirty-one years later, the Court’s poorly reasoned opinion in _City
of Boerne_ v. _Flores_ constrained Congress’s interpretive powers,
but it did not constrict them entirely. It remains true that judges
are not the sole authority on the Constitution’s meaning, just as it
is true that no Supreme Court decision is a permanent fixture of our
constitutional structure. Rather than celebrating that remarkable
(and, in my view, clearly correct), democracy-enhancing interpretation
of Congress’s enforcement powers, Lepore misstates _Katzenbach_ as
having overruled _Lassiter _and altogether ignores the sweeping
potential of Section 5—potential that remains very much alive.

 
A more nuanced understanding of Section 5 would have obviated her
excessive reliance on Article V for enlarging individual rights.

 

Another strength of the Constitution, as every constitutional scholar
I know has taught in recent decades, is the still-unexplored potential
of the second sentence of Section 1 of the Fourteenth Amendment: “No
State shall make or enforce any law which shall abridge the privileges
or immunities of citizens of the United States.”

 
Unfortunately Lepore overlooks that potential altogether by misstating
the holding of the infamous decision that radically—and, in the view
of nearly all constitutional scholars, mistakenly—narrowed the
“privileges or immunities” to which the Fourteenth Amendment
refers. _The Slaughter-House Cases_ (1873) reduced those intentionally
capacious privileges or immunities to what the dissenting Justice
Stephen J. Field called “a vain and idle enactment” that
“accomplished nothing”—a severely limited set of rights linked
specifically to national citizenship, like access to federal
government offices, travel to the nation’s capital, or protection
from assault while in federal custody.

 

Understood in accord with the natural reading of the words, especially
in the circumstances of their enactment, the privileges or immunities
at issue arguably encompass the vastly broader set of rights protected
by the Bill of Rights from federal interference, as well as
fundamental common law freedoms such as occupational liberty. But
Lepore misunderstands the ruling as having treated the Privileges or
Immunities Clause as “binding only on the federal government, not on
the states.” Given that nothing in that clause or indeed in Section
1 of the Fourteenth Amendment is binding on the federal government,
that is not a minor error.

AMENDMENT XIV Section 1 All persons born or naturalized in the United
States, and subject to the jurisdiction thereof, are citizens of the
United States and of the State wherein they reside. No State shall
make or enforce any law which shall abridge the privileges or
immunities of citizens of the United States; nor shall any State
deprive any person of life, liberty, or property, without due process
of law; nor deny to any person within its jurisdiction the equal
protection of the laws.

To similar effect, Lepore fails to explore the possibilities inherent
in the Fourteenth Amendment’s Equal Protection Clause, which Dean
Erwin Chemerinsky of the University of California, Berkeley, School of
Law has argued could be invoked by a future, more enlightened Supreme
Court, using that amendment’s one person, one vote principle
articulated in _Wesberry _v._ Sanders_ (1964), to strike down the
antiquated and antidemocratic Electoral College.

 
That method of selecting the president and vice-president is among the
textually fixed features that Lepore seemingly regards as fated to be
with us forever, given the impossibility of persuading three fourths
of the states to replace it through Article V. To be sure, a Supreme
Court decision in the foreseeable future requiring that the Electoral
College be replaced with direct election by the people—or even that
electors be chosen by districts rather than on a winner-take-all
basis—is extremely unlikely. But it is no less likely than the
prospect of a genuinely democratic set of governing arrangements
emanating from whatever emerges in the near term as a Constitution
2.0.

 

Returning finally to the Ninth Amendment—the one that seems to have
been airbrushed out of Lepore’s copy of the Constitution—it is no
defense that Justice Scalia made light of it in the 2013 interview she
quotes and ignored it altogether in his passionate dissent in _Planned
Parenthood _v._ Casey_ (1992), in which the Court specifically invoked
the Ninth Amendment to show that liberties like the right to terminate
one’s pregnancy may be fundamental even if they are not explicitly
enumerated anywhere in the text of the Constitution or any of its
amendments. Although Justice Amy Coney Barrett joined the five-member
majority opinion in _Dobbs _v._ Jackson_ overruling _Roe _v._ Wade_
and _Planned Parenthood _v._ Casey _in 2022, she implied in a 2025
interview that the right to “control one’s body,” though nowhere
enumerated in the Constitution, may indeed be a “liberty”
substantively protected from government deprivation without due
process of law by the Fifth and Fourteenth Amendments. She rightly
insisted that the crucial issue is the level of generality at which
the right should be defined.

I think she was wrong in _Dobbs_ to join an opinion relying on the
proposition that bodily integrity, being unmentioned in the
Constitution and its amendments, is therefore unprotected.

 
And I disagree with her as to the right level of generality to employ,

 
but at least she was arguing in Ninth Amendment terms in that
interview. Had Lepore too attended to those essential terms, she would
have had less reason to fear that without additional formal
amendments, our founding document would become frozen in time.

 

In the world’s many unwritten_ _constitutions, including
England’s—constitutions about which Lepore has much to say—there
is of course no instruction on how to interpret the gaps or omissions
in a written text. But once people began writing the constitutions
that specified rules for those who are to govern, they necessarily
confronted the reality that no written blueprint for a government or
indeed any operating system could cover all contingencies, eliminate
all ambiguities, and in particular enumerate all the rights it was
designed to secure. The American colonists addressed that difficulty
in some state constitutions, but they did not deal with it at all in
the 1778 Articles of Confederation.

Once they convened to write a constitution for a nation rather than a
mere confederation of states, however, they argued strenuously over
that omission, both in drafting the 1787 Constitution and in debating
its ratification in the state conventions. They grappled with the
question of whether to include an explicit Bill of Rights, with some
arguing that it would be unnecessary and others insisting that it was
essential—so essential that they wouldn’t ratify the Constitution
without it. Many in the Philadelphia Convention and in the state
ratifying conventions voiced the fear that including a bill of
enumerated rights, however comprehensive, would negate or dilute
rights the authors and ratifiers had not expressly listed.

Madison’s brilliant solution, borrowing from some of the states, was
to include in the federal Bill of Rights a specific command, in the
Ninth Amendment, that the failure of the text to
“enumerat[e]…certain rights” “shall not be construed to deny
or disparage others retained by the people.” Left for the future to
address were such matters as what those “other” rights might
include, at what level of generality they should be defined, and who
should be entrusted to answer such questions. Nothing about such
matters will be found in Lepore’s book, although they are obviously
crucial to any fair assessment of how essential it is that the
Constitution most of us are rallying around be made easier to revise.

Little had been written about the problem tackled by the Ninth
Amendment until the mid-1950s.

 
In his seminal work _Democracy and Distrust_ (1980), John Hart Ely
discussed it at some length. He argued against the view I took in
_American Constitutional Law_ (1978) that the Supreme Court had
properly wielded this amendment to recognize the rights of couples to
have sex for reasons other than procreation in _Griswold _v._
Connecticut_ (1965) and to protect a woman’s “unenumerated”
right to decide whether to terminate her pregnancy in _Roe _v._ Wade
_(1973). In Ely’s view, the Ninth Amendment at most supports the
unenumerated rights of people to be fairly represented in their
government. Although I disagreed with Ely, I thought that in _A New
Birth of Freedom: Human Rights, Named and Unnamed_ (1997), Charles L.
Black Jr. had gone too far in invoking the Ninth Amendment as itself a
source of specific rights (like the right to adequate nutrition or
shelter) rather than as a rule about how not to interpret the
Constitution’s failure to specify a contested right (like the right
to end a pregnancy).

 
 

While that debate progressed, the Supreme Court was persuaded in
_Richmond Newspapers, Inc. _v._ Virginia _(1980) to invoke the Ninth
Amendment to uphold an unenumerated right of the press and the public
(including the defendant’s victims) to attend and observe criminal
trials. Extending that right to trials in which the defense, the
prosecution, and the court wanted to exclude all observers required
more than the First Amendment, which creates a right to observe only
what a willing speaker wants to display. But the Court concluded that
no revision in the Constitution’s text—no victims’ rights
amendment or public access amendment—was needed in order to
recognize a right to observe criminal trials. Yet _Richmond
Newspapers_, the first Supreme Court decision ever in which a
plurality of the Court relied expressly on the Ninth Amendment to fill
a constitutional gap, never makes an appearance in Lepore’s book.

 
 

It’s not as though the Ninth Amendment is an obscure academic
preoccupation. When a group of legal scholars testified in 1987
against Robert Bork’s nomination to the Supreme Court, I led off the
academic testimony by focusing on his dismissive treatment of the
amendment as an “inkblot” that he could not interpret in his
judicial role.

 
We criticized his resulting insistence that the Court’s 1965
decision upholding the unenumerated right of couples to use
contraceptives was wrong and that the decision in _Roe _v._ Wade_ was
as well.

 

It isn’t surprising that the voluminous collection of essays in _The
Heritage Guide to the Constitution_

 
doesn’t mention _Richmond Newspapers _v._ Virginia _in its essay on
the Ninth Amendment. Nor is it surprising that it mistakenly says that
the Ninth Amendment played no part in _Planned Parenthood _v._ Casey_,
whereas it was in fact cited expressly by the Court in denying that
the Bill of Rights marked the outer boundary of personal rights
substantively protected by the Fourteenth Amendment’s Due Process
Clause. That volume is an avowedly right-leaning presentation of views
by a number of lawyers, including several prominent US Court of
Appeals judges, whom some have viewed, perhaps cynically, as
auditioning for an appointment to the Supreme Court should an opening
arise during the current president’s term.

 

What is surprising—and disappointing to me, given Lepore’s
well-deserved reputation as a legal historian—is her virtual erasure
of the Ninth Amendment from her history of the Constitution. It is a
history dangerously devoted not to celebrating our Constitution as a
vast living organism with limitless potential to once again light the
path to moral progress around the globe but to denigrating it as a
small clockwork-like machine that has run down. It is a narrative that
sadly harnesses Lepore’s descriptive talent as archival sleuth and
custodian of the forgotten voice to the distracting and misleading
task of demonstrating that our Constitution’s eighteenth-century
framers made the rickety mechanism so difficult to mend and to adapt
to our own needs that we should take seriously the idea of discarding
it altogether and beginning from scratch—a prospect she neither
expressly embraces nor wholly rejects—rather than clinging to it as
both sword and shield at a time of existential crisis for our
republic.

Silence is not an honorable option for anyone who loves this country
and reveres its far-from-perfect but still extraordinarily valuable
Constitution, which is now under relentless attack from the
law-defying right. Autocrats across the globe, in nations as far-flung
as Peru and Turkey, have invoked the imagined need to abandon their
ostensibly too-rigid and practically unamendable constitutions as an
excuse to defy or dismantle them.

 
Seeing a similarly misguided challenge to our Constitution by someone
who reveres democracy and the rule of law no less than I do impels me
to come to its defense.

_LAURENCE H. TRIBE is the Carl M. Loeb University Professor Emeritus
and Professor of Constitutional Law Emeritus at Harvard. His many
publications include American Constitutional Law, Abortion: The Clash
of Absolutes, The Invisible Constitution, and To End a Presidency: The
Power of Impeachment, cowritten with Joshua Matz. (February 2026)_

_THE NEW YORK REVIEW was launched during the New York City newspaper
strike of 1963, when the magazine’s founding editors, Robert Silvers
and Barbara Epstein, alongside Jason Epstein, Robert Lowell, and
Elizabeth Hardwick, decided to start a new kind of publication—one
in which the most interesting, lively, and qualified minds of the time
could write about current books and issues in depth. _

_Readers responded by buying almost every copy and writing thousands
of letters to demand that the Review continue. From the beginning,
the editors were determined that the Review should be an independent
publication; it began life as an editorial voice beholden to no one,
and it remains so today._

_Subscribe to the New York Review of Books_
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