Strict Scrutiny - The People's Constitution

Episode Date: December 27, 2021

Leah is joined by Wilfred Codrington III to discuss his co-authored book The People’s Constitution: 200 Years, 27 Amendments, and the Promise of a More Perfect Union. Follow us on Instagram, Twitter, Threads, and Bluesky

Mr. Chief Justice, may it please the court. It's an old joke, but when a man argues against two beautiful ladies like this, they're going to have the last word. She spoke, not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. I'm your host today, Leah Littman. And I'm stoked to be joined again by Professor Wilfred Codrington III, an assistant professor of law at Brooklyn Law School

and a non-resident fellow at the Brennan Center for Justice at NYU School of Law. Welcome back to the show, Wilfred. Thanks, Leah. It's great to be here. So Professor Codrington joined us for an episode recapping Brnovich v. DNC, the super important Voting Rights Act case from last term. And we had such a great time, and you all enjoyed the episode so much, we knew we had to do this again. And there was a perfect excuse to do so. Professor Codrington's co-authored book came out in fall 2021, and it's about constitutional law, democracy, and change. So we wanted to have him back on the show to discuss the book, which is called The People's Constitution, 200 Years, 27 Amendments, and the Promise of a More Perfect Union.

So, Wilfred, the book is co-written with John Cowell, the vice president of programs at the Brennan Center. You were previously the Bernard and Ann Spitzer Fellow of programs at the Brennan Center. You were previously the Bernard and Ann Spitzer Fellow and Counsel at the Brennan Center for Justice. Could you say a little bit about how your work at the Brennan Center influenced this book? Sure. Yeah. So it's kind of interesting how this all came up in the first instance. I was interviewing for a position at the Brennan Center, and my penultimate interview came in October 2016. And I remember being asked a question along the lines of what issue related to democracy should the Brennan Center focus on, something you might want to work on. And my answer, my just gut answer

was the Electoral College. And then I elaborated on the reasons why. So fast forward about a month later to my final interview, which was in late 2016 in November. And it was a couple of weeks after Donald Trump had just won the presidency while losing the popular vote. And one of my questions at this interview was, well, how would you like to work on a portfolio that includes the Electoral College. So things kind of started that way, in an ominous way. And at the same time, John had been wondering about amendments in general, and he was mulling a project about ideas for amending the Constitution, some substantive changes. And so you see how our interests were coinciding. And as books do, the ideas change and they develop their process, the research and writing. And we now look like we had this sort of project. And ultimately, we still had two nagging questions driving us.

One was, why don't we think about amending the Constitution anymore? And the other was, how do prior generations think about amending the Constitution? How did they achieve them? And taken together and over a course of years, it morphed into what we're discussing today. So that is this book about the history of constitutional amendments that distills some lessons from the past and gives us a sort of look at a possible future if we would take a page from the playbook of the series of generations that amended the constitution. And so this book and related matters of constitutional law were among the issues that I focused on at the Brennan Center.

And for those who don't know the Brennan Center, it works on matters related to democracy and criminal justice and liberty and national security and it has this interesting tri-part model. So it's part think tank, part institute for advocacy and it's part public interest law firm. So this book really fits into that mold. It is a product of intensive research and writing and really it tries to encourage the readers to envision and to press for constitutional reform to make our charter more inclusive and more democratic and better to govern us today. So the book takes a chronological and thematic account to the questions that you were talking about, namely, how and why the Constitution has been amended and how that

process kind of played out. And it specifically focuses on questions like who founded the Constitution, how and when the Constitution has changed, and also about the resistance and pushback to those changes. So maybe we can go through the different parts of the book and those different themes that it raises. So first, you introduce the book by asking a question, who wrote the United States Constitution? And you note that the traditional or most common answer is the framers, the white men in Philadelphia. But you also know there are many other framers and many other founders and authors of what we would recognize as constitutional principles today.

So you list George Mason, who refused to sign the Constitution without the Bill of Liberties, John Bingham, the father of the 14th Amendment, Susan B. Anthony, feminist pioneer, and Birch Bay, the senator from Indiana who authored more than one constitutional amendment, the 25th Amendment, which involves transition of power in the event of the president being incapacitated, as well as the 26th Amendment about the proper age and voting. So why was it important to expand the set of people who you view as authors of the Constitution? Yeah, so we framed it this way because we believe it's very important. And I have to give credit to Michael Waldman, who is the president of the Brennan Center, for suggesting that we open the book with this really important question.

And so for us, it helps to stage the discussion of the various framers who are not among those 55 white dudes who are in Philadelphia. Many of those white dudes were slave owners, as well as those who influenced the Constitution, but were not in the drafting room. It is important first because it's accurate. The popular narrative about the Constitution, it was that, you know, this is the work of these framers, their handiwork. They met in 1787 and, you know, we have this constitution. And that is true, but it's about half true. The fact of the matter is 40% of the constitution came after the original document was written. And in that 40% of the constitution are some of the most important principles and values that we think about when we talk about the Constitution today. So your freedom of speech, your religious liberties, your criminal justice

protections, equal protection, due process, non-discrimination, and voting. These are all textual provisions that really are not even getting to how we've interpreted those provisions, but these are really important textual provisions that have given further meaning and depth to the Constitution. So these principles and values, I think, are core to our understanding of what the Constitution is. And as I said, they were not a part of the original document. So it's important to highlight some of these figures that you mentioned because they were integral to securing those modernizing and democratizing provisions. And it's also important to highlight the non-legislators who influenced the Constitution development and its evolution because establishing and updating and reforming a constitution is not a project of individuals. And so you mentioned Susan B should take that as a win, as a framer, right? You know, he was one of the most important leaders in the abolitionist movement and the push for equal citizenship and push for voting rights, not only for voting rights for men, black men, but also for women. He was at the Seneca Falls Convention and made this impassioned speech. And some of the women there didn't even think that they would put voting

rights up there, but he was pushing for this. So it is important to know that the sort of histories and stories of these people who helped us frame the Constitution in the way that we have today. I think that's so important that you included not just the people who are authors because they wrote the text that was proposed and ultimately ratified in the Constitution, but also people who championed the ideas that later became part of the Constitution, even if it was well after, you know, they were pushing for those ideas. So on this podcast, we've talked about, for example, Pauli Murray, you know, they were pushing for those ideas. So on this podcast, we've talked about, for example, Pauli Murray, you know, who's thinking about the Equal Protection Clause was well ahead of their time. And, you know, other people became better known and better associated with the idea that

the Constitution prohibits discrimination on the basis of sex. But it was Pauli's earlier thinking about analogizing discrimination on the basis of race to discrimination on the basis of sex, but it was Polly's earlier thinking about analogizing discrimination on the basis of race to discrimination on the basis of sex and likening Jim Crow to Jane Crow that laid the intellectual foundation for those ideas. And I just love this idea of getting people familiar with some people who you might not know were championing the ideas that we now kind of hold dear today, as well as people who we do know, but we might not know, were championing some of the ideas. So like the Frederick Douglass example that you highlighted. Yeah, and I think Pauli Murray is a great example.

We mentioned her too, obviously, like an inspiration for Ruth Bader Ginsburg, who everybody knows, right? And very few people know Pauli Murray, but it's so important to the push for equality along many spectrums. Right, exactly. So in the early chronological part of the story, you introduced the idea of an imperfect constitution that contained numerous compromises over democracy. Could you just expand on some of those compromises and why it is important for people to know about them and to understand that the Constitution does, in fact, contain some compromises? Yeah. And so if I could actually step back a little bit,

I'd say, first of all, the Constitution as a document is profound and visionary, but it's also profoundly flawed, right? And as is any law, it was really a product of compromises. So big picture, we talk about these compromises in buckets, and we say three buckets, but they're actually interrelated. So we try to disentangle them a bit, but it's really kind of hard to do that. But we try to help the reader kind of have a better understanding that way. And some of those compromises relate to federalism. That's how we distribute sovereign power amongst the states and the federal government, right? We all know that the president, for example, is the commander in chief and Congress can declare war, though it hasn't in some decades, despite our being engaged in military sort of

engagements, but, you know, and so on. And then the states, obviously, they have a sort of residual power, what we call the police power. So they have this general jurisdiction, and they contribute to the composition of the federal government. So they used to, for example, they used to select the state, the senators to the United States. So that's like one sort of bucket of compromises on federalism. Then there was the compromises of democracy, which you mentioned. And again, they're interrelated. But this is really a question about who should have a voice in selecting our national leaders. And in the beginning, it was very few people, mostly property white men. But over time, that became more

inclusive. I mean, happily, Leah, you and I can vote today, but broadly speaking, that would not have been the case under the original Constitution. Our right to participate is a result of many things, including amendments, the 15th and 19th amendment. And so that was the compromises or among some of the compromises over democracy. And then there was the compromises over race and slavery. And these are particularly noxious because they were subtle. So the original framers, again, half of them who own black men and women at some point in their lives, they really thought that they were treading lightly on the issue of slavery because they were leaving its permissibility and its regulation up to the states mostly. And again, you see how this fits into the federalism bucket, right?

But the institution of slavery in the Constitution, it was pervasive. It prevented Congress from banning the international slave trade for two decades. It laid the ground for the fugitive slave laws that ensured Black people escaping for freedom would be returned to their captors, it added the three-fifths compromise, which meant that three-fifths of enslaved Black people were going to count towards the South's population to increase their political power, of course, while denying these people political and really human rights, right? They had no power. And it did all of this without even mentioning the word slave. The word slave never made it into the Constitution until the 13th Amendment, which

outlawed slavery. And certainly there are other compromises, but we saw these really as the three big ones to highlight to give the readers a good foundation of what the Constitution actually was. Yeah. And those, of course, are, although they might not, you know, be explicitly framed in terms of a compromise over slavery, they are somewhat explicit in limiting Congress's, you know, power to ban the importation of persons or in labeling certain persons as only worth, you know, three fifthfifths of another person, and in that sense are somewhat like on the surface of the Constitution as it relates to slavery. But one thing I tell my students is it's really hard to, for example, understand debates about some principles like stare decisis,

the idea that we should respect existing precedents, without considering the context in which those debates are happening. And right now, debates over stare decisis are often influenced by questions about the future of Roe versus Wade, Planned Parenthood versus Casey, and the right to abortion. And similarly, something I think your book does really well is highlight how we can't understand the political context of the Constitution and some of the compromises that were made in the formation of the Constitution without understanding the political context of the time, which, as you know, was to tread lightly around the issue of slavery. So even on issues that might not be, let's say, as explicit as prohibiting Congress from banning the importation

of persons or the three-fifths clause, it would be a mistake to assume that the national compromise over slavery didn't influence, you know, how political power was distributed in the Constitution as it was created. That's so well said. I can't add anything to that. That was perfect. But something else that I appreciated about the book is a big part of it is not only about in the book is what is sometimes called redemption. So could you tell us a little bit about what redemption is? Because I think a lot of people are familiar with the phrase massive resistance and the idea of resistance to Brown versus Board of Education. That's something people seem to learn about in school. But at least I didn't learn about redemption until law school.

And that was only in the course of working on a law review article. So what is redemption and how is that kind of example of this resistance to constitutional change that you discuss throughout the book? Yeah, sure. So redemption really came following the Civil War. And so following the Civil War, we have this period first called Reconstruction. And Reconstruction is where we get an array of reforms that make it look like a multiracial democracy is actually possible. So much that it's been called the second founding of the United States, right? So during this period, you get your first civil rights acts, you get the Ku Klux Klan acts that sort of combats white vigilante violence. And importantly, what these laws and other laws are premised on are the three Reconstruction Amendments. So the 13th, the 14th,

and the 15th Amendment. And those amendments abolish slavery. They promise equal citizenship and due process. And they enfranchise black men like just to kind of be glib about it. It does a lot more, but that's kind of the core of it. And they have such a profound effect, like so much that you actually get elected officials, black elected officials at all levels of government, including Congress. And we actually include a picture of those first in Congress in the book. And that picture is also part of my Twitter background, if people want to go see my Twitter background. But one of those senators, his name is Blanche Bruce, and he's the senator from Mississippi, and he actually occupies the seat that was once held by Jefferson Davis, the president of the Confederacy. And we include a plea from him, a speech to Congress that's asking for help in the South, because frankly, the promises of Reconstruction are being ignored and undermined, including with massive political violence, massacres of Black

people and their white allies. And so we have this decade or so where it looks like a multiracial democracy is actually possible. But then following that, government at all levels begins to backtrack. They begin neutering the foundations of this new regime. And so we get Supreme Court issuing decisions and validating parts of the Civil Rights Act. We get them disabling the prosecution of white terrorists. We get Congress repealing laws and withdrawing troops from the South, the troops that were there for martial law and to maintain peace and security for Black people. And you get the executive branch, among other things, they stopped prosecuting civil rights cases. And so that's just really a piece of what's going on.

But during this period, the South basically reestablishes itself. It creates this apartheid state, Jim Crow, and the federal government does very little about it. So the South is what we say or what they said as redeemed, right? You have this power of white supremacy that is restored. It's officially sanctioned, and it remains that way for another eight or so decades until we get to the civil rights era. And basically, it was as if we had not adopted the Reconstruction Amendments at all. They were dead letter. One important theme for me in the book is asking how or when resistance to constitutional change or legal change itself

becomes the law. That is, when does it exert enough force to take some law off the books, like in the redemption example, where putting aside the laws that the Supreme Court invalidated, you have laws that are on the books that could protect, you know, Southern Black citizens from disenfranchisement or violence, and those laws are just left to have no effect. And, you know, when does kind of resistance to legal change put some additional laws on the books, like you have resistance to women's disenfranchisement or resistance to the lack of the Bill of Liberties and the Constitution resulting in the Bill of Rights? So like, when does resistance become powerful enough that it kind of becomes the

law? Yeah, so I mean, there are, it's funny that you think about it like that, because we try to think about it in a way that those are sort of the active parts, right? But really, it's not, it's not, you know, defying, getting arrested, because you're trying to vote as a woman in an election is resisting the current regime, the status quo. Or, you know, the fight for abolition is resistance against the slave power, right? So these are actual acts of resistance. We sort of frame them in this way where they are sort of active movements, which they actually are, to promote that change, that constitutional change, and to just get these sort of principles we think of as

fundamental and foundational into the document. And in that regard, we thought about resistance as sort of like the counter of that, right? But it's not clear what is the resistance and what's not at any point in time because, you know, things are dynamic in the sort of terrain changes. But you also get resistance to these active measures. And I think redemption period was like probably the seminal piece of resistance to actually getting this change in.

And so, you know, when does it happen? It happens over time. All of these movements were over periods of decades, sustained activism. They sort of laid the ground for a long time before that they were enacted. And it happens sort of, I mean, there's a theory, you know, there's a theory about interest convergence. And we don't really go into this because this book is really trying to reach a wider audience. And sometimes, you know, you think in sort of academic terms, but you kind of have to write it out very clearly.

But there is this idea of interest convergence, and it really extends from critical race theory. But it's the idea that these powers, these people in power, and it was referring to white people in power, will only allow this change to actually take place when it aligns with their own interests. And so we see some of that happening at points too, right? So a good example of this is in the civil rights era, right? So we think about all the massive change we got in the civil rights era. We got some amendments too.

The amendments were actually a little more minor than the prior amendments. But all the changes that we got, big and small, some think about them as converging with the interests of white people. So America abroad, right? America's sort of in these wars for democracy abroad, and yet they don't practice democracy because they're denying their own people a legitimate sort of part and place in the government and in the political process. So it happens, I guess, sort of when interests converge, but those interests are only going to converge after sustained movement and after these sort of plans have been laid down so you can sort of actually implement the change. Yeah. Another dynamic in the book is, I think, related to resistance.

And this dynamic is about how and when the Constitution changes as well. And you label this one exhaustion and withdrawal. And one way of thinking about exhaustion and withdrawal is, you know, in many of the preceding examples we've been discussing, like the Reconstruction Amendments or the Bill of Liberties or the 19th Amendment, the Constitution was formally amended. But you discuss how, given exhaustion and withdrawal, in some ways progressives gave up on trying to amend the Constitution after some unsuccessful campaigns or attempts to do so. So, for example, the failed movement to get the Equal Rights Amendment as part of the Constitution, progressives back away from amending the Constitution and look elsewhere. So I guess, how do we address exhaustion and withdrawal? In many ways, I feel like anytime I look around, I see it around me with progressives kind of lagging energy and frustration with the time it took to accomplish some of the extremely

popular items in President Biden's agenda and just feeling like, gosh, like, why can't we get this done? Why can't we get it done more quickly? Why can't we do more? So, you know, how do you address this? Or, you know, did you see any methods that people use to successfully address this? How is that part of the, you know, cycles of constitutional change that you talk about? Yeah, it's great that you end with that sort of phrase cycles of constitutional change that you talk about. Yeah, it's great that you end with that sort of phrase cycles of constitutional change, because we really think about these sort of big amendments happening in these cycles, right? So for the most part, we are living under a constitution whose text is not changing. It changes in other ways, like judicial opinions,

for example, or political action. But for the most part, the text is saying the change. But then you get these periods and we highlight four periods during which the change is actually occurring. We're getting amendments and that's the founding era, the reconstruction era, the progressive era and the civil rights era. Usually the status quo is, you know, four or five, six decades of non-change, at least from a textual perspective. But you started talking about the ERA. And I think that's a good example to talk about sort of exhaustion and withdrawal. It came late in the game in the civil rights era. We already had four measures passed and ratified, the 23rd through the 26th amendments. And then you get the ERA being proposed out of Congress. And it was a

long time coming. The ERA was first proposed in the 1920s, shortly after women got the right to vote. And so, you know, you have this change in those four amendments, then you get the ERA, which is actually a pretty ambitious amendment. It is more profound in the way that the 14th Amendment is profound. Like it's a big principle that women deserve constitutional equality. But when that finally comes, you have this decade before it where you've got these other amendments and people are exhausted. And so people are get a little bit of constitutional amendment sort of lag. And and on top of that, you also get a backlash. Right. And so I talked about the redemption backlash before to Reconst states. And then you get the rise of the conservative movement, this new right, that's including characters like Phyllis Schlafly. I know you've spoken about her in previous episodes. And so like with all of the sort of forward momentum of the conservative movement and the sort of exhaustion and withdrawal of the progressive

movement, it just stops. It stops in the states, three states short of ratification. So that's exhaustion, withdrawal and backlash. And it's real. How do you combat it? Really, you keep fighting, right? You have your triple espresso in the morning, you put on your uniform. Take a swig out of your strict scrutiny mug. Yeah, definitely. You think, got to get back to enforcing the Voting Rights Act. You put on your constitutional crown gear. Exactly. Your boots or your Crocs or whatever. Then you get engaged, right?

Day after day. And yeah, we need some rest. We need some time to appreciate things that we achieved, things that are closer to us in life. And everybody deserves it. But we have to get back to the business of engaging and pushing lawmakers to do things because what these cycles and these sort of clusters of amendments show is that, you know, the first win in an amendment game tends to open a window for more amendments, you know, like winning has a way of engaging people and energizing to keep winning.

Like you don't get tired of winning until you've been winning for a very long time and then you get to these periods. But you just have to keep working on this and pushing for it because exhaustion is real. Yeah. But not losing sight of a self-care regime like Sam Alito's skin care regimen. Everyone needs their own. So don't lose sight of the battle. Keep yourself energetic enough to win. But yes, everyone does need their own skincare. Exactly. But do it moisturized. Okay. So you also, you know, in the course of examining these different periods and various constitutional amendments, you identify several factors that contribute to the Constitution being amended. Can you share some of the factors that you identified and just what you found,

you know, you thought contributed to the Constitution being amended? Sure. Yeah. So what we find is that there's these catalysts or indicators, there's a combination of them that kind of present themselves in the lead up to and during major periods of constitutional change. And so what we try to do is suggest that we're seeing some of them now. So we are in this period where it's high time for constitutional renewal. So history has this way of telling us we're at this critical juncture with sort of patterns and catalysts like unpopular Supreme Court decisions, sort of political foment and experimentation in the states,

transformational social change. Often this has implications for demographics and technological innovations. You get intense political polarization, and then you also get a sense of insecurity, like collective insecurity, often in the lead up to or during the midst of war or economic crises or, you know, a pandemic. them broadly and expand a couple on them. I guess I would say deeply misguided Supreme Court decisions is a really big one. I recently wrote a piece in The Atlantic about this. It touches on this topic. But you can think about decisions like Dred Scott decision, which said that black people are not going to be citizens. They deserve to be slaves, yada, yada, yada. That's the clean version. Pollock versus Farmers Loan and Trust, which said that Congress has no power to impose an income tax on wealthy people. Oregon versus Mitchell, which said that Congress has no power to lower the federal voting age to 18 or the voting age in general across the board. They said the federal is fine, but not states. And so these decisions, because the Supreme Court is the last word on the interpretation

of the Constitution until we amend the Constitution, those decisions prompted a demand for amendment. And if we are to say that have this final say on the Constitution, we really have to amend. And we think about this like Citizens United may be the most modern counterpart of these terrible decisions, right? This is a decision which is universally reviled on the left, right and center. And I've mentioned some others. I'm happy to talk about them, but I also don't want people to not read the book. So yes, no, we can't possibly cover everything that is in the book. In the course of this interview, it is just designed

to give people a flavor of it. But if you are curious about some other terrible, no good, very bad Supreme Court decisions that might motivate constitutional change, I would encourage you to check out our catalog of episodes. So you mentioned that, you know, some of the factors that you identified as precipitating constitutional change in the past are present today. But we oftentimes hear that constitutional amendments just isn't realistic today, given the extent of polarization in the country, and the threshold for amending the Constitution. So I the country and the threshold for amending the Constitution. So I guess, do you think that amending the Constitution is a realistic possibility today? So not today, today. I mean, we are still in the middle of the semester and I have not written my final exam for my students. So like, we got to do some other stuff. But really, to be honest,

it does seem unlikely in the short term. It is no surprise that our politics is stuck, right? Lawmakers can't even deal with our debt ceiling or, you know, to pay our outstanding bills. They can't take pride in long overdue infrastructure improvements and funds that you mentioned right up front, like it just helps everybody. So there's a problem there. And it does take super majorities to amend the Constitution. You need two thirds of both houses of Congress and three quarters of the states, which is a high threshold. But as I sort of alluded to earlier, even said explicitly, amendments are short term affairs, right? Nor should they, because we're talking about our As I sort of alluded to earlier, even said explicitly, amendments aren't short-term affairs, right?

Nor should they, because we're talking about our national charter. We're talking about our foundational law, and it should not be altered lightly. It takes time to generate amendment-worthy ideas. It takes time for movements to push those ideas forward. It takes time to draft those amendments in ways that they won't have unintended consequences. It takes time to build up support and for the people to sort of see why they're so essential and the like. And so these, in the past, this has happened over decades. It requires patient, intelligent activism to push lawmakers and to push them, one, to get a hospitable environment, and then, two,

to push them to push the amendment sort of over the finish line. And so the pressure has historically built up over decades. So we should not expect one today, but we should be laying the ground for them in the ways that I described above, because those make it possible. And at some point, hopefully not too far in the future, a likely possibility. So looking around today, it seems like there are both multiple poles of resistance in the sense that there are many different kinds of movements pushing for different kinds of constitutional change. So you see, among other things, movements for religious liberty pushing

back against non-discrimination statutes. You see movements surrounding what is protected free speech and who enjoys free speech protections. You see movements for Black lives and abolition. How should we understand or think about the potential and the limits of these movements in light of your book's analysis of how and when the constitution changes. Yeah, some of these may be ordinary and some may be extraordinary. And what I mean here is that some of this activism and advocacy, these movements are a normal part of our political system. They try to influence politics and policy, including by generating mass interest in their messages and in their goals, and then persuading public officials to do their job in a way that aligns with those messages and goals, right? And so we want lawmakers to pass laws, we want executives

to enforce them and execute them in a way that aligns with this, and the judiciary to interpret them in a way that is consistent with these movements' sense of justice and liberty and equality. And so some of these movements will be sustained. I suspect some will dissolve, but only time will tell which are which. But those that do persist, and if they're thinking big and ambitiously, they can have an impact on big constitutional change. Now, this can be informal constitutional change. So, for example, big monumental Supreme Court decisions, they may have the justice change their mind about the meaning of the Constitution as it's interpreted presently, but it can also produce formal constitutional change. And that is this Article 5 change.

It may compel lawmakers to do the hard work of actually forging deals and proposing and ratifying resolutions to amend the Constitution. And really, that's how it's been done in the past. It's been sustained movements like the abolition movement, like the suffrage movement, like the temperance movements, the civil rights movement and others. They were successful outside forces forces and they really did compel lawmakers to act. And I think today you mentioned a couple and I think I'll note one in particular. There has been a swell in women's activism, right? You have the Me Too movement, Time's Up movement, the protests and marches for

abortion rights and gender equality, and they continue to this day. I think that is related to a big constitutional reform. That's the push for the Equal Rights Amendment, which we mentioned up front to guarantee gender equality as the law of the land. And in light of this women's activism, states actually revived their efforts to ratify the Equal Rights Amendment, the one that did not succeed when it was passed. Right. But they finally pushed it over the 38 state ratification threshold. Now, there's a number of questions related to the process, which puts it with the courts and back to Congress, but it does go to show how sustained movements can alter the political landscape and the constitutional agenda to produce big constitutional significant change. I hope you are right in your optimism about the Me Too movement and the movement for, you know, gender equity being one of the movements that will lead to more sustained change.

Cautious optimism. And maybe over a longer time horizon than, say, the end of this Supreme Court term. Or the end of the semester, you know. Right. Either one. So I guess one last question, just because you were kind of singling out, you know, some movements is more likely to affect long lasting change and differentiating between ordinary versus extraordinary, you know, political or constitutional movements. What do you think makes for durable, long lasting constitutional change? Like, is it the strength of a movement?

Is it its longevity? You know, what is it that kind of contributes to durable constitutional change? I think the answer is multifaceted. And I guess I'm still thinking through this, but hopefully you'll bear with me as I give you a partial answer. So I think you touched on some important things, the strength and the sort of force of the movement, the sort of strategy behind it. But durable constitutional change, I think, comes importantly

from textual additions, right? I think it is important that it comes through the Article 5 process for a number of reasons. I think it gives the reform legitimacy for a number of reasons, including because it goes through a process that we recognize as the legal process for constitutional change. And because it requires overwhelming consensus, both in the legislative halls in Washington and throughout the country, as well as among the American people themselves to kind of get those super majorities. But I want to just step back to say that textual changes can be ignored. Just recall, we talked about the post-Reconstruction era and the courts treating it as if the 14th, 15th Amendment did not exist. The vast majority of Black people and women of color were not voting, and even women of color were not voting after the 19th Amendment, right? It really took the Voting Rights Act, the Civil Rights Movement, the Warren Court, all of those things sort of in alignment to happen. So really, it does need to be bolstered by

robust and active participation of strategic activism in our democracy, in our political process. And really, the truth is, like, the fight for durable constitution change never ends. It is a very difficult thing. It is tiring. It reminds me of the Coldplay song. You know, the verses like, nobody said it was easy. No one ever said it would be this hard. But it is not a sprint.

It is a long distance relay. And each generation has to pass the baton to the next one. They have to continue onward in this endurance race for a more perfect union. Well, maybe we can get Chris Martin to accompany the track to what will hopefully be a future of constitutional change. New interns. I will keep my fingers crossed. Move over, Ray J. New district scrutiny interns. New District Scrutiny interns, Chris Martin. He will do the vocals on the audio book to The People's Constitution. I will look forward to that edition. 200 Years, 27 Amendments, and the Promise of a More Perfect Union.

Definitely encourage everyone to check it out. It's a very enjoyable read and easy read, so perfect for holidays between the semester, over the summer, or as you are traveling. So thanks so much, Wilfred, for joining. Thank you again. Thanks to our producer, Melody Rowell. Thanks to Eddie Cooper for making our music. And thanks to all of you for listening.