Enduring Safeguard or Inflexible Relic:

The founding document, a nation's Constitution, is more than just a legal document; it forms the backbone of that nation, shaping laws, governance, and the protection of individual freedoms. Radical reformers believe a constitution should evolve quickly, adapting to societal changes and reflecting modern values. Traditionalists argue that it must remain firm and enduring, providing a stable foundation that resists the whims of political trends. This balance between flexibility and stability is crucial, shaping how such nations are governed and ensuring the protection of its citizens' freedoms.

The United States Founding Fathers understood the challenges of crafting a balanced constitution. Drawing from historical lessons and the philosophies of Locke, Montesquieu, and Plato, they recognized the importance of learning from the mistakes of past governments. They studied the rise and fall of ancient republics and monarchies. They observed how the unstable governance of Athens and Rome and the unchecked powers of European monarchs led to their downfall. With this understanding, they carefully designed a Constitution that could endure the test of time while providing mechanisms for change through amendments. Their goal was to create a system that could protect individual liberties and ensure national stability without succumbing to impulsive alterations or fleeting political movements.

"Making the Constitution difficult to amend ensures that changes reflect a broad consensus, safeguarding the nation's stability against the volatility of fleeting political interests" -Jill Lepore, The New Yorker

Considering the risk of impulsive alterations or fleeting political movements is crucial when reasoning about constitutional changes. Hasty or premature decisions made in response to short-term pressures can lead to unintended consequences. These consequences can affect the stability and fairness of governance. Thoughtful, deliberate change ensures that any amendment has lasting value and reflects the broad interests of the nation rather than reacting to temporary trends or political agendas.

The Constitution of the United States of America stands as a pillar of America as a republic, having endured for over two centuries with only 27 amendments ratified since its inception in 1787. Once a startling political novelty, this document was crafted with a built-in mechanism for change: the amendment process. However, in Jill Lepore's article, "The United States' Unamendable Constitution," she argues that the Constitution's rigidity is deforming American politics and preventing necessary reform. Lepore contends that the process to amend the Constitution, as outlined in Article V, has become too difficult to achieve in modern times. Why, you ask? Lepore argues it's largely due to the polarization of political parties. But, if I'm not mistaken, our political parties have always been deeply polarized throughout the history of our nation. From the fierce battles between Federalists and Democratic-Republicans to the ideological divides of the Civil War and the social upheavals of the 20th century, polarization has been a consistent feature of American politics. In fact, it might be harder to find a time when the major parties were more aligned than they are today, with only brief moments of unity during national crises like World War II. According to Lepore, this ongoing polarization has not only increased the difficulty of passing amendments but has also stunted the nation's ability to adapt to modern challenges in a unified way.

Lepore's reference to the nation's inability to "adapt to modern challenges" likely points to significant political, social, and legal issues that were prevalent in 2022. These challenges probably include the persistent calls for reforming or abolishing the Electoral College, the debate over reproductive rights following the Supreme Court's decision to overturn "Roe v. Wade," ongoing concerns about gun control and Second Amendment interpretations, immigration reform, and questions surrounding voting rights and election integrity. She may also be referring to the gridlock in addressing climate change, healthcare reform, and economic inequality—issues that are seen as critical in today's world but are often stymied by political polarization and an unyielding Constitution. In Lepore's view, the difficulty in amending the Constitution prevents meaningful progress on these issues, leaving the nation struggling to keep pace with societal needs and global shifts.

Lepore suggests that the inability to amend the Constitution frequently negatively affects U.S. governance. She points out that despite the original framers' intention for the Constitution to be adaptable, amendments have become almost impossible to pass. The difficulty stems from the double supermajority requirement, which mandates two-thirds approval in both houses of Congress and ratification by three-fourths state legislatures. She notes this was challenging enough when the country had fewer states and less partisan division; in today's polarized environment, the bar is set even higher, making amendments nearly unattainable. Lepore does cites examples such as the long-standing calls for Electoral College reform, which, despite popular support, have never materialized into an amendment due to the complexities of the process.

The author's central argument is that the U.S. Constitution's rigidity deforms American politics and prevents necessary evolution. Necessary evolution? Should the U.S. Constitution evolve more easily to meet the demands of modern society, or does its current rigidity ensure the stability needed to preserve the nation's core values? This critique has roots that likely stretch back to the early 20th century during the Progressive Era, when reformers began advocating for major societal changes like workers' rights, women's suffrage, and government regulation of industries. As you can see, calls for reforming or even abolishing the Constitution are far from new. While Lepore acknowledges that the Constitution has provided stability, she argues that this rigidity now leads to "pathologies" in the political process. These pathologies could include political gridlock, the inability to address modern issues through amendments, and the over-reliance on the Supreme Court for constitutional interpretation.

Essentially, it suggests that the Constitution's inflexibility has introduced distortions and unhealthy patterns into American governance, shifting focus toward democratic processes rather than the balanced republican framework the founders intended. This rigidity has hindered the nation's ability to effectively adapt to contemporary challenges. She suggests that the Constitution has outlived its utility in certain aspects, particularly when adapting to modern governance challenges, such as election reform, abortion rights, and immigration laws. Instead of relying on amendments to address these issues, political factions have turned to the Supreme Court to interpret or reinterpret constitutional provisions. Lepore posits that the Constitution's inability to be amended frequently forces the Court to act as an arbiter of change, a role the Founders did not anticipate or design for. Forcing the Court to act as the primary arbiter of constitutional change is dangerous, as it concentrates immense power in the hands of a few unelected justices, potentially leading to decisions that reflect judicial biases rather than the will of the people or the broader national consensus. This could erode public trust in the judiciary and result in volatile legal precedents that swing drastically with each new Court, creating instability in governance and civil rights.

While Lepore presents a well-articulated case, some assumptions could be improved in her argument. One pretense is that the Constitution's inflexibility is inherently a problem that stifles necessary political change. This view fails to acknowledge that the very difficulty of the amendment process serves as a stabilizing force. The Constitution was deliberately designed to resist impulsive or reactionary changes that could undermine the foundational principles of American governance. This safeguard ensures that amendments are only made when they reflect the will of a broad consensus, not a partisan or limited consensus, preventing fleeting political whims from dramatically altering the nation's governing document. As Benjamin Franklin wisely remarked, the Constitution establishes "a Republic, if you can keep it," reminding us that the stability and endurance of this system rely on the careful preservation of its foundational principles, not on impulsive changes driven by narrow interests.

Moreover, Lepore assumes that more frequent amendments would lead to better governance. This overlooks the dangers of making the Constitution too easy to amend. As history has shown in other countries, frequent constitutional changes can lead to instability and undermine the rule of law. The U.S. Constitution's endurance is mainly due to its capacity to provide a stable framework while allowing for incremental changes through legislation and judicial interpretation. This balance between rigidity and flexibility has allowed the Constitution to guide the country through periods of social upheaval, technological change, and political revolution without being torn apart by the pressures of the moment.

The nation's early years demonstrate why the amendment process was crafted to be difficult. The Bill of Rights, the first ten amendments to the Constitution, was ratified shortly after the Constitution to address concerns about individual freedoms and governmental overreach. These amendments were essential to securing support for the Constitution and establishing the nation's foundational principles. Similarly, the Reconstruction Amendments, passed in the wake of the Civil War, were crucial for redefining citizenship and ensuring the abolition of slavery. These amendments reflect the ability of the Constitution to adapt to the most pressing issues of the time, highlighting the document's relevance and adaptability. Each was passed in response to significant national crises after debate and consensus-building. A compelling and eloquent case was made, as leaders recognized that only through thoughtful deliberation and broad support could amendments truly serve the nation's enduring interests, rather than being driven by short-term political motives.

As the nation matured, the need for amendments diminished. The Constitution's core principles proved robust enough to guide the country through many challenges, while the Supreme Court played a critical role in interpreting these principles in the context of evolving social norms. Lepore critiques this reliance on the judiciary, stating that it is essential to recognize that the Founding Fathers anticipated the need for judicial interpretation. Although they did not explicitly design the system of judicial review, they understood that a living society would require ongoing interpretation of laws in light of new developments. This emphasis on the Court's interpretation of the Constitution highlights the document's adaptability.

Lepore's critique of the difficulty in amending the Constitution assumes that major national issues must be resolved through amendments, but this view overlooks the success of legislation and judicial interpretation in resolving many such matters. For example, child labor was addressed not through a constitutional amendment but through the Fair Labor Standards Act of 1938, which abolished child labor under federal law. Likewise, civil rights were advanced through landmark Supreme Court decisions and legislation, such as the Civil Rights Act of 1964, rather than constitutional amendments. This emphasis on the success of legislation and judicial interpretation in resolving national issues provides a counterpoint to the argument about the difficulty of amending the Constitution.

The Constitution's design, with its complex amendment process, ensures that changes are not made lightly. In a nation as diverse and divided as the United States, or even during times of stability and steady progress, this safeguard remains essential in protecting against the volatility of public opinion. As Lepore notes, public opinion has shifted dramatically over time on issues such as the Electoral College and same-sex marriage. If simple majority votes could amend the Constitution, as Lepore contemplates, the country could be in constant flux, with major constitutional provisions being overturned with every new election cycle. This would undermine the stability that has allowed the Constitution to endure for over two centuries.

In the nation's early years, the framers understood that the Constitution would need to be adaptable, but they also recognized the importance of making it difficult to amend. The supermajority requirements in Article V were not designed to prevent change but to ensure that any changes reflected a broad consensus across the nation. This consensus-building process is critical for maintaining the integrity of the Constitution and preventing narrow political interests from dominating national governance. By reiterating the importance of the consensus-building process, the argument about the purpose of the supermajority requirements in Article V is reinforced.

As the nation has advanced, the need for amendments has become less pressing on the federal level. The most significant political and social changes have been achieved through legislation, judicial interpretation, or state-level amendments. This gradual shift from amending the federal Constitution is a testament to the document's enduring strength and ability to guide the nation without constant revision. While Lepore argues that the amendment process is too difficult, it is precisely this difficulty that has allowed the Constitution to remain a stable and guiding force through periods of immense change, providing a sense of reassurance about its stability.

While Jill Lepore raises important points about the challenges of amending the Constitution, I believe her critique overlooks the value of stability and consensus in governance. The framers deliberately designed the Constitution to be difficult to amend, ensuring that only changes with widespread support would be enacted. In the republic's early years, this process allowed for critical amendments that shaped the nation's foundation. As the country has evolved, the Constitution has remained a stabilizing force, with most political changes occurring through legislation or judicial interpretation. The difficulty of amending the Constitution is not a flaw but a safeguard that has preserved the integrity of American democracy for over two centuries. May the strength of our nation endure. God Bless America.

I highly recommend reading Jill Lepore's article, "The United States' Unamendable Constitution," in "The New Yorker." It's a thought-provoking and well-written piece—so much so that it inspired me to write this rebuttal. You can find the article here: (https://www.newyorker.com/culture/annals-of-inquiry/the-united-states-unamendable-constitution).