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)
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