The Current - Can the U.S. constitution survive Donald Trump?

Episode Date: October 3, 2025

The men who wrote the American constitution included its goals right there in the preamble: Establish justice. Ensure tranquility.  Secure the blessings of liberty. Lately, there have been plenty of reasons to question whether that document is living up to those goals — and there's real talk of a constitutional crisis. At a moment like this, when the future looks uncertain, Harvard historian and law professor Jill Lepore is an expert at explaining why history matters. We talk to her about her latest book, "We the People: A History of the U.S. Constitution."

The following message isn't for everyone. Just for the millions of podcast listeners who heard and loved these recent true crime series, The Outlaw Ocean, the con, Caitlin's Baby, or Sea of Lies. Skip ahead if that's not you. Okay, the rest of you know something, the others don't. These three unforgettable podcasts deserve awards, right? The prestigious Signal Awards think so, and they're giving you a chance to vote if you agree. Go to vote.signalward.com and help us make it official.

That's vote.com. Thanks for listening. This is a CBC podcast. Hello, I'm Matt Galloway, and this is the current podcast. If there is one national constitution that Canadians are pretty familiar with besides our own, it might be the American one. It is the oldest and longest standing written and codified national constitution. in force in the world.

Here is how the kids' video series Schoolhouse Rock explains it. In 1787, I'm told our founding fathers all sat down and wrote a list of principles that's known the world around. The goals of the document are laid out right there in the preamble to form a more perfect union, establish justice, ensure tranquility, secure the blessings of, of liberty. Lately, there have been plenty of reasons to question whether that document is living up

to those goals, as the presidency of Donald Trump leads politicians and pundits to talk of a constitutional crisis in the United States. At a moment like this, when the future looks uncertain, there is no one that I would rather talk to than Jill Lepore. She is an expert at explaining why history matters and what we can learn from it. Jill Lepore is a professor of American history at Harvard University, professor of law at Harvard Law School, and her latest book is called called We the People, a history of the U.S. Constitution. Jill, good morning. Good morning.

Books take a long time to write. But the timing of this, you must admit, couldn't be better. Or worse, depending. Or worse. Right now, and we'll talk about the better or the worse, but right now when people are talking about the Constitution and applying the word crisis to it, why is it important to understand the history of that document itself?

Well, I think in any relationship, it's important to understand the history of it. I mean, I think that's true in your relationship with your parents or your spouse or your boss. I think we kind of glorify the idea of history as if it's this abstract scholarly form of inquiry. But it's how we navigate our daily lives. And that's no less true of matters of law. Our Constitution is something that kids learn about in school, as your delightful schoolhouse rock excerpts suggests. But then I think we tend to sort of imagine it.

in this embodied in this parchment way here in D.C. in the U.S., the parchment constitution has just been put on display in its entirety for the first time. We tend to use the, sort of erect the Constitution as a shrine, when in fact it's really an argument, right? And it's an argument that Americans have been having with one another since before the thing was even drafted. And so I think that history of, well, as in a marriage, right, you want to know what your last few arguments were about before you enter the next one. You call it an exploration of ideas and say that, I mean, it's made neither of bone nor stone that is kind of a machine. What does that mean?

Well, the framers of our constitution were very much influenced by Newtonian physics, which was new at the time, right? Newton, in the 17th century, Isaac Newton, you know, devises the theory of gravity and is part of a scientific revolution in which people in the West are newly confident that all of the natural world can be explained by deducible. laws. And the framers of the Constitution thought that could be applied to politics, that we could use the wisdom of the ancients, you know, Plato and Aristotle, and their philosophy of how power corrupts and how all forms of government inevitably decay into forms of tyranny. We could take those ancient ideas and run them through the framework of the scientific revolution and devise a constitution that would be like a precisely built watch whose movements and motions that gears would mate perfectly would balance one another. You'd have to wind it up. You might need to

repair it. But the thing itself would be so exquisitely structured that the forces of corruption would be balanced by forces of restraint. But that it wasn't a fixed thing either. That's the neither bone nor stone piece, right? Yeah. I mean, it was a new thing to write down a constitution. England still doesn't have a written constitution. The idea that the constitution is something that is a set of principles that have to adjust and therefore it's important that it not be written down. But the colonists really wanted, the former colonists really wanted to write down their constitution. But they knew that presented a danger, right? Like if you write it down, then it becomes fixed and you want to be able to adjust it, improve it, repair it. Maybe you got something wrong. They were very aware of their own fallibility. You know, at the constitutional convention in 1787 of the 55 delegates who showed, up. Only 39 even signed the thing. And then in the states where the states had to ratify the Constitution was a very close thing, whether the Constitution would be ratified. It was only successfully ratified because the framers promised that they would amend it as soon as the first Congress sat. And indeed, they did. That's what our Bill of Rights is. It is the first 10 amendments

that were ratified. So this principle, I think of it as the philosophy of amendment, is really foundational to written constitutionalism. I don't know what it says about us, but I want to go back to the cartoons. Here is something from Looney Tunes, talking about the issue of amendment. For 200 years, amendments have allowed our Constitution to grow with a country. The 13th, for instance, put it into slavery while the 19th gave women to vote. It was intended to be amended, the Constitution. Don't take my word for it. Take Bugs Bunny. It was intended to be amended. What do we know about the intention to amend? And that, I mean, you talk about the, this in the book. That word in particular, amend versus altering, for example. Yeah, or abolishing. I

mean, the people reserve the right to alter or abolish any system of government. That's in our declaration of independence. But amendment is the term of choice in the Constitution written 12 years later, 11 years later. Amendment in the 18th century had many meanings, some of which we preserve today. But it's a very close relative, of course, of the word mend, right? To repair to stitch something back together. And they both have moral meanings, right? If you're behaving badly, you may need to make amends to someone whom you've harmed. You might need to mend your ways. These were very frequently used terms at the time. Amendments also meant, and we still use this today. You know, I have a pretty significant vegetable garden. I have to amend my soil all the time to improve it, to add something to it to make it better.

It becomes exhausted. It needs renewal. all of those meanings were very much front of mind for the framers of the Constitution when they thought about amendment. And it is, I think, one of the more beautiful founding principles of this country and its constitutionalism. Because I do think, you know, repair, improvement, correction, adjustment, modernization, these were very much in the air of our founding. And it's an odd twist of fate and irony of history that we live in. an era where constitutional veneration, worship, the return to the original of the Constitution is the mode of thinking about the Constitution that prevails both on our Supreme Court and across the culture, when really the idea that the thing has to be adjustable is the original

philosophy of the Constitution. But it went through waves, right? Like, one of the things that runs to this book is you chart times when there were a lot of amendments and then times where there have been very few. Yeah, it turned out to be much more difficult to amend. the Constitution than the framers anticipated because when they figured out the mode of amendment that, you know, the kind of numerical supermajorities required, there were no political parties in the United States. Soon there were. And once there were political parties, the math doesn't

really work very well anymore. So what happened instead is that, you know, the constitutions need to change. They're going to change. And in most countries, they just hold a new constitutional convention and write a new constitution. But in the U.S. instead, the Supreme Court became the engine of change of constitutional change during periods when it was especially difficult to amend the Constitution. So we're in one of those periods now where the U.S. Constitution hasn't been meaningfully amended since 1971 when the voting age was lowered from 21 to 18 during the Vietnam war. But since then, the Constitution hasn't been amended, but the power of our Supreme Court has grown significantly since that time. What do you make of that? I mean, one of the, there are

huge decisions that were made by the courts that, that, that, that, shaped life in the United States. One of them is Brown v. Board of Education. This was saying that racial segregation in schools was unconstitutional. People said that, who were opposed to that, who were opposed to desegregation, said that this was the day that the Constitution was destroyed in the United States. What were the fallout that you saw from going to the courts,

from relying on the courts? If you couldn't amend the Constitution that you would rely on the court to do the work for you? Yeah, well, I mean, if you think about a good point of comparison for Brownview Board of Education is the Dred Scott decision from 1857 when, you know, abolitionists said the Constitution does not sanction slavery. And the Southern state says, said, yes, it does. We have slavery and we're going to, when we expand into Western territories, we're going to bring slavery with us. In the end, the Supreme Court ruled on that and said the Constitution does sanction slavery. And not only that, but black people can never be citizens of the United States. It's that decision. The only way to overturn that decision, because it was impossible to amend the Constitution at that moment, was the Civil War.

In the 20th century, so Brown v. Board of Education going a century further in 1954, civil rights activists wanted to end segregation. They had already won a constitutional amendment that ended it, effectively, the 14th Amendment, which was right of, you know, which passes during the Civil War. but it was just ignored by southern states. And so segregation persisted across the country. They had no choice but to seek a remedy in the court, right? Black voters were disenfranchised under the regime of segregation and Jim Crow that prevented black voters from voting. How are you going to win an amendment which requires this dramatic supermajority when you're disenfranchised? So the only remedy was to go to the courts.

But it was also the case that liberals of all stripes, whether they were seeking civil rights or other kinds of constitutional change, went to the courts instead after Brown, because the court seemed open and willing to consider to enact constitutional change. So, you know, for the whole of the second half of the 20th century, liberals went to the court to seek constitutional rights. With some exceptions, so the ERA, the Equal Rights Amendment passed Congress in 1972 and then was done. defeated during the ratification battle over the next decade. But that, too, kind of nailed the door shut of bothering to try for a constitutional amendment. If even something so obvious as equal rights for women couldn't be ratified in the United States, liberals just said, we'll just keep going to the courts instead. You say that these are decisions whose importance was only matched by the reversibility. Do you worry about that now? Well, if you think about, I'm very struck,

somewhat haunted, honestly, by in 1969, a Gaylord Nelson, a Wisconsin senator who started Earth Day in 1970, proposed a constitutional amendment that was an environmental protection amendment. There were a lot of these proposed in the states. You know, one of them passed in Pennsylvania, for instance, in

1971. And I think if the Constitution had remained amendable, in the U.S., most of our environmental legislation dates to that moment. the Endangered Species Act, the Environmental Protection Act, the Clean Water Act, the Clean Air Act, and they are now all effectively being gutted, reversed, dismantled by the Trump administration. If a constitutional amendment had constitutionalized environmental protection at that moment,

those things would not be able to be gutted in that same way. All right, it is October. It is officially spooky season, which is great timing because there is a new Canadian thriller series out. It's called Wayward, and I think we should be talking about it. My name is Alameen Abdul Mahmoud, and I love pop culture, and this week on my podcast, Commotion, I called up some of my favorite critics to get into the show about a school for troubled teens, and then things start to go wrong, and it's just wonderful, and it's bringing something new and interesting to the thriller genre. For that episode, and a whole lot more, you can find and follow Commotion with Alameen Abdul Mahmood on YouTube, or wherever you get your podcasts.

Is your sense, I mean, again, you hinted this in the book, that the founders, the people who wrote the Constitution, would have never imagined the sense of political paralysis and polarization that you see in your country right now? Yeah, I mean, I was some years ago at a dinner party in Toronto. I don't even remember why. And I was sitting next to some voluble fellow. And he kept saying. I don't understand why you people think your constitution was divinely inspired and, you know, your framers were gods because I was part of a constitutional convention here in Canada, and we were basically just drunk guys. But he had a sort of interesting point, right, which is, and this was a point that James Madison made, that the fear of a constitution that lasts a long time, you want a constitution to be durable, but if it lasts a long time, and no one living even remembers the guys who were at the constitutional convention. and they're no longer human, knowably human, that the passage of time can accrete a kind of veneration.

Now, we should venerate a lot of things that are old, and I don't mean to be diminishing the importance of stability of our Constitution in the United States, but that there would be this kind of mystique, this dangerous sort of mysticism surrounding a document that was really committed to its amendability. if new generations of Americans didn't renew the Constitution by bringing it forward in time, that it would become brittle and that it would introduce its own new kind of instability into American politics. Does that open the door to, you mentioned originalism, does that open the door to this idea that the only thing that matters is what was written verbatim in the Constitution? It does open the door. I think it gives strength to that claim. But I also think it's important to remember that

originalism is not original to the Constitution. It's not how the framers ever described what they expected by way of constitutional interpretation. Originalism arose in the 1970s and 1980s in the United States, a form of judicial interpretation that exists nowhere else in the world because social and fiscal conservatives were really between a rock and a hard place. on the one hand, they said they didn't want the courts to be active. They were opposed to judicial activism. They were opposed to everything that the Warren court did like granting reproductive rights, deciding that abortion was not a violation of the Constitution. And so they wanted to get onto the court. But if they got onto the court, they couldn't actually become judicial activists. They also couldn't amend the Constitution because they just didn't have the votes and the Constitution had become. unamendable. So they came up with this new theory of constitutional interpretation so that by the 1980s when they did begin to predominate on the court under Reagan, they could say, it may look like we're changing the Constitution with these new judicial decisions, but we're not. This isn't

change. This is the restoration of the original meaning of the Constitution. So it's a way to get what they wanted, which was to change the Constitution by pretending that they weren't engaging in change. How much power does that strain of thought have now in the United States, do you think? You know, there's been some fantastic scholarship about how effectively that idea was marketed as a political product by the new right in the 1980s, so that if you, even if you look at public opinion polling as early as the 1990s, and you ask Americans, you know, what is the Constitution, how should it be read? In a kind of multiple choice scenario, they always pick. It should be read as it was originally written and intended to be read, and it is frozen in time.

So it is very much the way that ordinary Americans think about the Constitution. And, you know, not unlike people complain a lot that the Democratic Party at the moment has no message, and that's true. But also opponents of originalism don't have a very coherent message for the public. Overwhelmingly, I think Americans subscribe to the idea that the Constitution is what it is when it was written in 1787. Are you living through a constitutional crisis right now? We are living through so many different crises, Matt. It's really hard to say.

People quibble over the definition of a constitutional crisis because it tends to be overused. And we live in an age of political hysteria. So those like me who are somewhat cautious speakers tend to try not to engage in the language of constitutional crisis. Also because, you know, one of the ways that, well, the chiefs, way that the current president has exercised powers by insisting that we are in a state of multiple emergencies. We're in an immigration emergency. We're in an energy emergency. Everything is an emergency, therefore the executive has new emergency powers. You know, we're going to open up closed coal plants. We're going to close the borders. We're going to deport people without due

process because it's an emergency. So I, myself, am very wary of overusing going too quickly to constitutional crisis, just because of the language of crisis and emergency, has been such an effective mechanism for this administration to usurp powers that it does not have under the Constitution. And yet there would be people who would say that the way, for example, the Supreme Court is acting, kind of disregarding precedent, perhaps nudging up against the line, you know, of what's actually in the Constitution itself, would justify the use. of that word. I mean, in my understanding of how legal scholars like to use the phrase constitutional

crisis, it is only a crisis when the two branches of government come into irreconcilable conflict with one another. And thus far, Congress is not in any conflict with the president. Congress is doing everything the president asks, including shutting down the government, even though this is the trap that Democrats have stepped into. And the Supreme Court is doing what the president asks. So in a way, you kind of need the system to seize up for that narrow definition of crisis to be met. I would not say, however, that we are not. Honestly, like, the words I grope for are probably more dramatic than crisis. I think we live in an age of insurrectionary politics. I'm probably more worried about political violence. But I think that what you see

going on right now is the president of the United States insists that he, is the exclusive interpreter of the Constitution. He would not even defer to the courts, even were the courts to oppose him. What his lack of deference would mean we await, unfortunately, to discover and I think are likely to discover. But I do truly think, and as Trump has said publicly, he does not believe it is his duty to uphold the Constitution, even though he swore an oath to do that. He believes that if he says it's in the Constitution, it's in the Constitution, and if he says it isn't like birthright citizenship, then it's it's not. Is there a solution in the Constitution to whatever word you want to apply to what's

happening in the country right now? There's an argument that the Constitution contains the answers in some ways to the problems that Americans face. One of those answers was impeachment. And I think history will look with gloom and anguish at the Republican senators who refused to vote to impeach Trump after the insurrection in January of 2020. at the direction of Mitch McConnell. I myself am persuaded that the Section 3 of the 14th Amendment, which bars from seeking federal office, someone who has violated their oath to the Constitution,

I think that is another mechanism in the original, in the Constitution itself that was a remedy for the re-election of Donald Trump. Are there remedies left? The remedy we are left with really is the recourse of the court. Do you have another one, Matt? Tell me, maybe you have another one. You're the expert. No, I don't know.

You talk to a lot of experts, though, whereas I hide out and waiting for the storm to pass. How do you – can I ask you just – I mean, you're a historian, but you are an American. You're a bunch of other things as well. How do you – I'm mainly a sheep farmer. And well, and that too, somebody with a giant vegetable garden. How do you understand the moment that you're in, right? Does history give you a better sense as to what you're living through right now?

People throw the word unprecedented around, and that can be overused, like crisis, perhaps. But how are you dealing with and thinking about and doing in this moment? I honestly think that we have lost sight of the shore if we're in a ship of state. there really isn't anything in the American past. As important is it, I think, to get our bearings where we can from history, I think the lessons, the historical lessons that are of relevance today actually are in the past of other countries. Countries like what?

You know, Argentina. I mean, if you think about what's going on with our financial sector, what the government's control over the Fed and our economy is to return to tariffs. the cronyism, the political decay and corruption, the amassing of authoritarian power. These are lessons that are really not to be found in American history. You know, the work of people like Ann Applebaum, people who are looking at the rise of autocracy around the world, people that are inquiring into exactly, you know, what happened in Hungary, what has happened in Russia.

I think those are the places to look for the lessons of history. And where do you think you go from here, then? Um, the sheep are really fun to look at. I, I, I don't mean to be glib. It is, it is a very terrifying moment day to day. It's hard to know what's going to come next. I am stricken every day by the absence of, uh, civil disobedience by peaceful marches in the street. There are, there have been a number of them. There are people you see out by the side of the road in the middle of nowhere holding, you know, handwritten signs that say uphold our Constitution. And it's very moving. But in the manner of organized political response as a matter of partisanship, in the manner

of civil protest, nonviolent protest, I'm really staggered by the absence of it. And one explanation for that is really truly the amount of fear. that people don't think they can go out on the street in march and protest of this administration without being masked because they're worried about facial recognition and retribution, that they could lose their jobs, that they could be denied a mortgage, you know, that they're just, or they could be audited by the IRS. People are really terrified of this federal government, and that's what Trump wants. That's a scary moment to be in. Yeah. Yeah. It is.

I'm really, I'm always glad to talk to you. partially just about the sweep of history and how you see the moments that we're in now based on perhaps moments that we have experienced in past. But this moment in particular, I'm really glad to have the chance to talk to you. Jill Lepore, thank you very much. Thanks so much, Matt. Jill Lepore is a professor of American history at Harvard University, professor of law at Harvard Law School. Her new book is We the People, a history of the U.S. Constitution. You've been listening to the current podcast. My name is Matt Galloway.

Thanks for listening. I'll talk to you soon. For more CBC podcasts, go to cBC.ca.ca slash podcasts.