The Philosophy of Amendment

This article argues that amendment is the foundational if forgotten contribution of American constitutionalism. Adopting a written constitution requires making provision for its future by allowing for change: Americans devised that mechanism. The idea of constitutional repair, correction, and improvement through revision was so essential to the founding of the United States that it can best be described as a system of thought, which I call the philosophy of amendment and describe as the epitome of the eighteenth-century idea of progress.  Article V, I argue, was the triumph of the constitutional convention, a product of the framers’ Newtonian views of the science of politics. Part I, The Origins of Amendment, traces the development of the philosophy of amendment, with particular focus on early state constitutions, the debate over the federal constitution, and the speeches and writings of delegates to the 1787 constitutional convention. “A progressive state is necessary to the happiness and perfection of Man,” Pennsylvania delegate James Wilson said in a Fourth of July speech in 1788, days after the Constitution was ratified. “Let us, with fervent zeal, press forward, and make unceasing advances in every thing that can support, improve, refine, or embellish Society.” Part II, The Age of Progress, examines the discourse of amendment in the nineteenth century. Arguing that eras in which the federal constitution is little amended are often characterized by a frenzy of amending in the states, the article considers the nearly ceaseless state constitutional conventions held in this era, alongside the dozens of “colored conventions” held by free Black men in northern states. I argue that the amending hiatus between the Twelfth Amendment in 1804 and Thirteenth Amendment in 1865 was no hiatus at all but instead of contest between competing agents of constitutional interpretation, including not only the states but also the U.S. Supreme Court. Part III, The Word White, details and analyzes the debate over the introduction of the word “white” into state constitutions in this era by focusing on concerted efforts of people who opposed that change but lacked the political power to defeat it. I illustrate that campaign by recounting the political career of a Black tailor from Chicago, John Jones, beginning with his 1847 petition to the Illinois state legislature calling for a repeal of “all laws making a distinction among people on account of color.” Part IV, The Future of Amendment, considers why the U.S. Constitution has become, since 1971, effectively un-amendable and identifies political polarization and, unexpectedly, the rise of originalism, as among the most important forces behind the abandonment of the philosophy of amendment.

[Article coming in forthcoming issue.]

Copyright © 2024 Jill Lepore, Kemper Professor of American History and Professor of Law at Harvard University. Jorde Symposium Lecture, 2023–2024, delivered at the University of California, Berkeley, School of Law on October 3, 2023, and at the University of Chicago Law School on February 15, 2024. Heartfelt thanks to Kenneth Alyass, Mia Hazra, Imaan Mirza, Tobias Resch, Steven Rome, Jonathan Schneiderman, and Fawwaz Shoukfeh at the Amendments Project and to Zachary Elkins, Tom Ginsburg, and Jessie Baugher at the Comparative Constitutions Project. Thanks to John Kowal at the Brennan Center and thanks as well for comments from Alison LaCroix, Sanford Levinson, David Pozen, and Julie Suk. A portion of this paper was also presented at a workshop sponsored by the Harvard College of Historical Scientific Instruments, November 3, 2023. Funding for portions of this research was provided by the National Endowment for the Humanities, the Harvard Data Science Initiative, and the Harvard Inequality in America Initiative.