Written on parchment from either calf or sheep skin, and rendered in black ink composed of iron salts and pulverized oak galls, the original version of the United States Constitution as penned in the hand of the Pennsylvania scribe Jacob Shallus (for which he was compensated $30 for his forty hours of labor) is preserved in a titanium exhibition case at the National Archives beneath a layer of glass 3/8th inch thick and a mist of inert argon gas. Every evening the Constitution, along with the Declaration of Independence and the Bill of Rights, are lowered 25-feet into a 50-ton vault beneath the rotunda of the sepulcher-like “Charters of Freedom” exhibition in Washington DC, the inner sanctum of this dimly-illuminated temple kept continually at 67 degrees. The reverence in which this parchment is kept expresses some of the incongruities of the Constitution. American historian Jill Lepore, who will be speaking Monday September 15th as part of Pittsburgh Arts & Lectures’ “Ten Evenings” series, told me that while many “Americans don’t know what is in the Constitution,” most of them “fiercely believe in the Constitution,” describing this as one of the central paradoxes of our national politics. The Neoclassical Holy of Holies where Shallus’ work is maintained is a demonstration of said paradox, where advanced technology conserves the 238-year-old vellum, but the lightning is too scant for visitors to easily make out the words.
Today, if visitors wish to make a pilgrimage to see the Charters of Freedom within the massive, columned limestone-and-granite National Archives Building appropriately enough on Constitution Avenue NW, they might first have to walk by occupying National Guard troops from West Virginia, Ohio, Mississippi, South Carolina, Louisiana, and Tennessee that have been ominously deployed by the President of the United States. “We’re living in the thick of a quagmire about constitutionalism,” Lepore said, which is also an age of “hopelessness, despair, and doom.” Central to Lepore’s perspective on history is that “We study how things began so we may better understand how they might end;” it thus becomes necessary to break the Constitution out of its exhibition case, to return to those earliest moments before Shallus even put quill to parchment. History departments at colleges and universities have long abandoned discussion about the Constitution to their colleagues across the quad in the law schools, which because of the differing way in which the latter consider context and evidence has resulted in a public discourse that only serves to further preserve the document under that 3/8th inch of glass. Lepore’s We the People: A History of the U.S. Constitution, to be released by Liveright on September 16th, rectifies that discrepancy in a detailed yet lyrical account of the past two centuries of American constitutionalism.
An exacting scholar, Lepore’s over seven-hundred pages provides a deep, contextual perspective on the philosophy and history of the Constitution from the often zestfully democratic state constitutions which preceded it, the frequently rancorous debates that attended its ratification throughout the states, and the challenges it has faced over the course of its history, from capricious executives to civil war. “The framers never intended for the Constitution to be preserved, like a butterfly, under glass,” writes Lepore in We the People, and indeed much of her study is an account not just of the Constitution, but of the competing ways of interpreting the Constitution. Lepore, among our most vital and important public intellectuals, is the perfect scholar for this task of excavation, contextualization, and interpretation. The David Woods Kemper ’41 Professor of American History at Harvard University (she also has an attendant appointment at the law school), Lepore occupies the rare position of being an influential and crucial historian while also being a popular author, including as a regular staff-writer for The New Yorker. “I happen to write about history, but I’m a writer,” Lepore said, explaining that like any writer, whether a novelist or a playwright, she’s primarily interested in “how change is manifested over time.” A combination of rigorous scholarship and immaculate prose style is manifest in Lepore’s bibliography, from her 1998 Bancroft Award winning The Name of War: King Philip’s War and the Origins of American Identity to her 2018 massive, comprehensive national history These Truths: A History of the United States which recalled and surpassed the ambitious attempts at overreaching narratives that were popular a half-century-ago. A specialist in seventeenth and eighteenth-century American history, Lepore’s writing (true to the interdisciplinary nature of her Yale PhD in American Studies) ranges freely, including works like 2014’s The Secret History of Wonder Woman and Joe Gould’s Teeth from two years later, the former a feminist cultural history of the titular superheroine and the later about an eccentric author’s missing manuscript which was rumored to be the longest ever written. “The work of the historian is not the work of the critic or of the moralist,” she writes in These Truths, “it is the work of the sleuth and the storyteller, the philosopher and the scientist, the keeper of tales, the sayer of sooth, the teller of truth.”
If Lepore considers herself simply a writer for whom history happens to be her primary subject it still shouldn’t be occluded that her work constitutes path-breaking original research, creative interventions, and influential scholarly interpretations. She isn’t “just” a popularizer or “just” an author of synthetic overviews. This is obvious in We the People which places at its center an argument about the philosophy and process of amendment as being the chief innovation of American constitutionalism, a claim which is substantiated through the research archive she maintains at Harvard named the Amendments Project. Noting that the means of altering the Constitution tend to historically move in cycles between amendment or judicial interpretation (we’re currently in the later, the last amendment ratified more than thirty years ago), Lepore described the concept of amendment as a “Beautiful idea that is the dominating legal principle of American constitutionalism.”
The philosophy of amendment found its origin in state constitutional drafts, the men who wrote those documents responding to their frustration at being unable to alter the royal charters that governed many of their colonies, but Lepore detects something even more utopian in the concept than the mere exigencies of the circumstances in which the idea developed. “Amendments allow for improvement,” Lepore told me, they reflect not just the “Enlightenment philosophy of moral progress,” but of both “mending and making amends.” Because so many attempts at amendment have failed (many of them thankfully so, a few tragically) it can be easy to overlook the radicalism of the idea, but implicit within the concept itself is this idea of imperfection to be fixed, problems to be rectified, minds to be altered and documents to be revised. There is “something beautiful in the idea” of amendment, according to Lepore. The escape of a pinned butterfly.
Metaphors are inescapable in political discourse, and constitutionalism is no exception. Even more than a narrative about dueling hermeneutics – methods of interpretation like pragmatism, textualism, intentionalism, and originalism – the Constitution’s is a story about metaphor. Inheritors of Enlightenment rationalism and the vogue for mechanization, the authors of the Constitution tended to imagine it as a clockwork machine – Lepore compares it to an Orrey, a device that mimicked the revolutions of the solar system, a celebrated version of which was being constructed in Boston as ratification debates were taking place. Around the time of the Wilson administration, Lepore explained to me how there was a shift from mechanical to organic metaphors, a transition from the “Newtonian to the Darwinian.” Whether the Constitution is a machine or an animal, Lepore emphasized that it’s “best when the metaphor doesn’t map onto our partisan preferences.” Rather what Lepore most often imagines the Constitution as being is an “artifact of a particular technology, manufactured during a certain era. An artifact and not just an abstract ideal.” Throughout We the People there is this exact rhetorical focus on the genesis of the Constitution, the document itself a product of paper and parchment, ink and print. An “embodiment” defines the Constitution, as opposed to the ethereal, abstracted, and immutable “Law” that we sometimes think of it as expressing, which speaks to the principle that we’re supposed to make the Constitution work for us rather than the other way around.
Many of those whose rights were limited by the Constitution understood its embodied nature better than the legislators who amended it and the judges who interpreted it. William Grimes, an enslaved Georgian man who penned an influential escape narrative, claimed that upon dying he wanted the Constitution (that document that had defined him as 3/5ths of a human without mentioning that unsavory word “slavery”) printed on his skin, though he pointed out that all of the scars he had suffered would render the text itself illegible. When the 14th Amendment was passed in 1868, recognizing all of those who were formerly enslaved as citizens of the Republic, a hopeful cartoon depicted the Constitution as an expectant mother. Both images are embodied, different though they may be, orienting the Constitution towards material circumstances and realities.
Now, in addition to the political problems which currently bedevil us, Lepore identifies a disturbing shift in the metaphors we use to describe the Constitution. No longer Newtonian or Darwinian, but cybernetic. Now rather than a mechanism or an organism, we’ve replaced our thinking about law with imagery of artificial intelligence. “What does it mean when consent of the governed is replaced by inscrutable terms of service?” Lepore rhetorically asked. “Most public discourse is mediated by algorithms owned by private companies like Google, Anthropic, Meta. This ‘artificial state’ is replacing the liberal nation-state and democracy, but none of us decided that that’s what we want,” she said. Lepore’s critical neologism, which she will explore in a book entitled The Rise and Fall of the Artificial State that is slated for publication sometime next year, is intended to describe the ways in which democratic “ways of knowing” have been “dismissed in favor of algorithmic methods,” how the unholy alliance of tech and capital threatens liberal institutions and norms. As not just the United States, but American constitutionalism itself, approaches its bisesquicentennial, questions of the future of the rule of law become only more paramount. The breakdown in civil society, the eroding of democratic norms, the Pandora’s Box of artificial intelligence, all of it requires us to focus our attention on the histories which Lepore has excavated. As a volley against the dearth of meaning which defines our contemporary political culture, Lepore suggests that there is power in “Combining words in ways that convey meaning” and “deeply believing in knowledge for its own sake.” On a Massachusetts overpass that Lepore drives beneath on her way to campus, a group of protesters gathers with a banner that reads “Save our Constitution. Save our Democracy.” Lepore thinks about those protesters when she writes about the Constitution. Regardless of what day it is, the protesters are always thankfully there.
