Living Constitution vs Originalism: Jill Lepore’s Bold Challenge

The debate over how to interpret the United States Constitution—whether as a fixed document whose meaning is rooted in its historical origins (originalism), or as a dynamic, evolving instrument responsive to changing times (living constitutionalism)—has for decades polarized legal scholars, judges, and citizens. In her recent work We the People: A History of the U.S. Constitution and associated essays and lectures, Harvard historian Jill Lepore issues what can be called a bold challenge to originalism and its dominance in legal and political discourse. Lepore does not merely argue for the living Constitution; she contends that originalism has produced, in many respects, a brittle and outdated constitutional order, unsuited to the demands of democracy in the 21st century.

In what follows, we’ll explore the central claims in Lepore’s challenge, examine the tensions between living constitutionalism and originalism, assess the criticisms on both sides, and consider the stakes for constitutional law and democratic legitimacy.

I. What Lepore Argues: The Philosophy of Amendment & Against Originalism

A. The Hidden Founders: Amendability Is Foundational

One of Lepore’s primary claims is that the framers of the Constitution never intended for the text to be “set in stone.” She argues that they built amendability into the structure of the Constitution—most particularly through Article V—not simply as a safety valve, but as a fundamental component of constitutional order. 

She uses the metaphor of the Constitution having a “self-cleaning button”—something designed to allow change without necessitating violence or revolution. This capacity to evolve, she says, was not marginal but essential to the Constitution’s legitimacy and operability. But over time, she claims, the amendment process has become so difficult, politically costly, and constrained, that it rarely functions as originally intended. 

B. What Lepore Sees as the Problem with Originalism

Lepore critiques originalism on several fronts:

1. Selective History & Narrow Sources
   She points out that originalists tend to rely on a limited corpus of historical materials: the text of the Constitution, the Federalist Papers, ratification debates, Madison’s Convention notes, early dictionaries and so on. These sources are imperfect; some were unpublished, some obscure, and many voices—women, enslaved people, Indigenous nations—are largely absent or marginalized. Lepore argues that using just those documents creates an artificially bounded view of what the framers intended, and which actors they considered. 

2. Historical Uncertainty & Methodological Problems
   She contends that originalists often act like historians but do not follow historical methods fully. The past is messy; documents are incomplete; public understanding in the eighteenth century was far from uniform. To assert a single “original public meaning” with confidence is, she suggests, misleading. 

3. Rigid Interpretation in a Dynamic World
   The world has changed: technologies, social values, demographic makeup, moral beliefs. Problems such as environmental crises, rights demands (for women, racial minorities, LGBTQ+), or things unforeseen by the founders pose challenges that rigid originalism cannot adequately address. Lepore argues that insisting on fixed meaning tends to push change outside formal constitutional processes—into courts, extra‐constitutional activism, or legislative action that skirts constitutional constraints. 

4. Democratic Legitimacy & an Unamendable Constitution
   Perhaps most importantly for Lepore, when constitutional change becomes nearly impossible via amendment, this heightens the role of judicial interpretation—and if that interpretation is tightly constrained by originalism, many democratic impulses for reform are frustrated. The constitution becomes alienated from public life. The legitimacy of law suffers when large segments of the population feel constitutional rights and institutions do not reflect their understanding or needs.

5. Philosophy of Amendment & Widening the Lens

Lepore doesn’t simply criticize originalism; she proposes an alternative framing, which she calls the philosophy of amendment. Key features:

• Archive Expansion: Incorporate as many voices as possible from the historical record—not just framers and ratifiers but those who were excluded, disenfranchised, or ignored. This might include women, enslaved people, Indigenous persons, free Black citizens, even Puerto Ricans, etc. 

• Reinvigorated Amendment Process: Make constitutional amendment more feasible, or at least restore the sense that constitutional change is possible; reduce barriers (political, procedural) to amendment when justified. Lepore documents many failed amendment efforts, showing how high the thresholds are, and how in many cases using legislation or judicial interpretation has become the only realistic path to effect structural change. 

• Democratic Engagement & Public Deliberation: Constitutional meaning should not be left solely to courts or legal scholars; ordinary people should see themselves as participants in constitutional politics. That includes education, historical awareness, civic participation, and transparency about how the Constitution is interpreted and potentially changed. 

• Respecting the Text—but Not Being Enslaved by It: Lepore admits that the constitutional text and its original normative commitments matter. She is not rejecting text or history; she wants to see them in a broader context. The “lens” through which we see constitutional history should be wide, inclusive, aware of silences, omissions, and the evolving nature of society. 

II. Living Constitutionalism vs Originalism: Broader Debate

To understand the import of Lepore’s challenge, it helps to map the broader terrain: what do proponents of originalism and living constitutionalism argue, and what are their respective strengths and vulnerabilities.

A. Originalism: Definition, Appeal, Strengths

Originalism is often the thesis that the Constitution’s meaning should be grounded in its original meaning: what the Constitution’s text was understood to mean at the time it was adopted (or ratified), or what the framers (or ratifiers) intended or expected. Its appeal includes:

• Predictability and Stability: If constitutional meaning is anchored in past public understanding, then law is less subject to capricious change. Judges are bound by fixed anchors. This helps in preserving legal continuity.

• Constraint on Judicial Power: By anchoring constitutional interpretation in historical record and original meaning, originalism proposes to limit judicial discretion and reduce subjective or ideological decision‐making by judges.

• Legitimacy Based on Democratic Foundations: The Constitution is a document adopted by the people (through their representatives) and ratified by states; originalism emphasizes fidelity to what was democratically adopted.

• Preventing “Judicial Legislation from the Bench”: Originalists are wary of interpretations that amount to judges imposing their own policy preferences rather than discovering pre‐existing meanings.

B. Living Constitutionalism: Definition, Appeal, Strengths

“Living constitutionalism” is less monolithic; there are many versions. But broadly it insists that the Constitution must be interpreted in light not just of its original meaning but in the context of changing conditions, values, and perspectives. Its strengths:

• Adaptation to Social Change: When society evolves—e.g., with changes in technology, moral values, social structures—the Constitution, through reinterpretation, can remain relevant and just.

• Inclusiveness: It allows for voices and interests that were marginalized at the founding to find constitutional recognition. Rights which were not thought of or valued by the original framers can, under this view, be developed over time.

• Moral Progress: Many proponents believe that constitutional law should reflect advances in ethical understanding—e.g. civil rights, women’s rights, LGBTQ+ equality, environmental protection—that the founders either did not imagine or tolerated.

• Practical Necessity: Given the difficulty of formal amendment, changing conditions, and evolving public expectations, living constitutionalism is seen by some as the only viable route to ensure that constitutional law remains responsive.

C. Weaknesses and Criticisms on Both Sides

Of course, neither approach is unassailable. Some common criticisms:

• Originalism’s Problems:

  1. Historical Ambiguity: Which version of historical record do you choose? The framers often disagreed; many debates weren’t recorded; sources are incomplete or biased.

  2. Exclusion of Unrepresented Voices: Many groups—women, enslaved persons, Indigenous peoples—were not enfranchised; their perspectives are often under-documented or absent.

  3. Rigidity in Changing Contexts: Rules fit for the 18th century may not map neatly onto a vastly different 21st-century world. What counts as “militia,” or “commerce,” or “cruel and unusual punishment” may shift in meaning as institutions and practices change.

  4. Judicial Disguising of Policy Choices: Critics argue that originalism sometimes serves as a mask for judges who are making policy decisions; by invoking “original meaning” they gain deference and legitimacy even for decisions that might be ideologically driven.

• Living Constitutionalism’s Problems:

  1. Vagueness / Indeterminacy: Without firm anchors, constitutional interpretation may become untethered to law, leading to subjectivity or “judge‐empowered policy making.”

  2. Democratic Legitimacy Concerns: If significant constitutional changes are made by courts rather than by democratic processes (e.g. through amendments or legislative action), critics worry about the lack of popular consent.

  3. Slippery Slope Risks: Some warn that if one accepts living constitutionalism too broadly, judges might legitimize almost any policy under the name of evolving norms, even those far from what the Constitution could reasonably support.

  4. Legal Uncertainty: More fluid meaning may lead to unpredictability; citizens and legislators might find it harder to plan or rely on legal norms if those norms are liable to change in uncertain ways through judicial interpretation.

III. Lepore’s Challenge in Context: Why It Matters Now

Lepore’s challenge is especially timely given current political and judicial trends in the United States.

A. Courts and the Current Supreme Court

Originalism has become a dominant philosophy in many conservative legal circles, influencing many recent Supreme Court decisions. Some of these decisions have reversed earlier precedents, often on originalist grounds. Lepore suggests that originalism’s rise correlates with a period in which formal amendments are scarce, while legal challenges to entrenched constitutional doctrines increasingly go through the courts. 

B. Amendment Process as Dead or Dormant

Although the framers designed a structure with the possibility of amendments, Lepore documents that since the mid‐20th century, successful constitutional amendments are very rare; many proposed amendments fail; political polarization makes consensus hard; public mobilization is difficult. She portrays the amendment route as politically blocked in many respects. 

C. Social & Moral Claims Pressing for Redress

There are pressing issues—racial justice, gender equality, LGBTQ+ rights, climate change, etc.—that many believe demand constitutional recognition or protection. If originalism remains rigid or narrow, these demands may be deferred, fragmented, or addressed in piecemeal fashion outside constitutional law, which may erode public faith in constitutional protection. Lepore sees in these struggles both the necessity and possibility of constitutional change. 

D. Legitimacy, Trust, and Constitutional Culture

Lepore warns of a constitutional culture that reveres the document almost religiously (“a culture of veneration”) and views the Constitution as sacredly fixed. She argues this culture makes amendment seem almost sacrilegious, and discourages thinking about constitutional change. The consequence is that people feel they cannot influence constitutional law, that the courts are their only recourse, and even that the Constitution is increasingly remote from their lived experience. 

IV. Assessing Lepore’s Boldness: What She Gets Right, What Is Debatable

A. What Lepore Persuasively Establishes

• That originalism has real limitations: Her historical examples and her attention to neglected voices highlight how the original sources are incomplete, biased, or silent with respect to many of the issues modern society deems important.

• That amendability is under‐appreciated: The idea that amendment was intended as more than occasional correction or refinement—but as a living mechanism for change—helps shift how one understands constitutional design.

• That reform (or at least thinking about reform) matters: Even if changes aren’t immediately enacted, the idea of changing the Constitution shapes constitutional culture, raises public awareness, and resists stagnation.

• That courts, as currently structured, are overburdened with the job of constitutional translation: When amendment becomes infeasible, much constitutional meaning gets forged through judicial decisions—something Lepore sees as legitimate only to the degree that it reflects broader public values and historical awareness.

B. Areas of Critique, Open Questions, and Potential Weaknesses

• How to balance stability vs change: One of the perils in Lepore’s challenge is that emphasizing amendment and dynamism risks unsettling core constitutional norms or rights. What limits should there be? How to avoid capricious shifts depending on political winds? Lepore points to the high thresholds in Article V, but some may argue those thresholds themselves are part of the stability that originalists value.

• Feasibility of Amendment Reform: While Lepore shows how many amendment efforts fail, she does not always provide detailed pathways for reforming the amendment process in politically realistic ways. Will reducing thresholds or altering structures be possible in a polarized environment?

• Judicial Role & Institutional Competence: While expanding the historical record and including marginalized voices is crucial, judicial interpretation by its nature is limited by what records survive, what arguments are raised, and what legal doctrines already exist. How can courts reliably do what Lepore demands—widening the lens—without overstepping their competence or democratic legitimacy?

• Risk of Judicial Overreach under Living Interpretation: Lepore warns against an overly literal, narrow originalism that freezes meaning, but critics of living constitutionalism warn of judges potentially acting more as policymakers. Lepore’s vision offers checks via democratic processes and public engagement—but balancing that with effective judicial protection of rights is a delicate task.

V. Implications: What Would Lepore’s Vision Mean in Practice?

If Lepore’s challenge were adopted more fully, what might change?

1. More Constitutional Amendments / Reform Campaigns
   We might see increased efforts—social, political, legal—to amend the Constitution on issues like environmental rights, equality guarantees, voting reform, perhaps structural governmental reforms. Mobilization could be more bottom‐up.

2. Broader Teaching and Archival Projects
   Historical scholarship and legal education might place more emphasis on under‐represented voices and silences in constitutional history. Lepore’s own Amendments Project is an example—collecting the full texts of the thousands of failed amendment proposals, not just the successful ones. 

3. Judicial Interpretation with Broader Historical Context
   Courts might be more willing (or pressured) to consider nontraditional historical records: writings, conventions, public sentiment beyond the ratifiers, societal practices that reveal how constitutional norms have developed in practice.

4. Public Deliberation & Democratic Civic Culture
   The idea of constitutional change might become less taboo. Citizens might more actively consider what they want constitutionally, rather than treating the Constitution as sacrosanct and immutable. More civic education regarding constitutional history and the amendment process would be part of this.

5. Potential Restructuring of Amendment Procedures
   Maybe modifying Article V or otherwise reducing barriers: state ratification burdens, political obstacles. Alternative constitutional reform models (conventions, referenda, etc.) could gain greater legitimacy or usage.

VI. Objections & Counterarguments Lepore Must Address (and Some She Does)

While Lepore addresses many issues, a number of objections are raised by skeptics; some she meets, others remain challenging.

• “We need certainty and rule of law.”
  Critics say that without firm anchors, law becomes unpredictable; citizens, legislators, courts need stable expectations. Lepore responds that uncertainty already exists—originalist histories are contested; precedents shift; living constitutionalism does not mean whimsy but demands disciplined historical work, public reasoning, and democratic accountability.

• “Living constitutionalism is just judicial activism in disguise.”
  Lepore acknowledges this worry, but insists that reform via amendment, public participation, wider historical understanding can make constitutional change more transparent and legitimated—not just decided behind closed doors by courts.

• “Amendment reform is impossible in current politics.”
  It’s true that political polarization makes supermajorities hard to get. Lepore does not offer a “silver bullet,” but by documenting past campaigns (successful and unsuccessful), she suggests that change may be incremental; culture and norms shift slowly.

• “Original meaning matters; we must be faithful to the Constitution we have, not imagine a new one.”
  Lepore does not suggest rejecting original meaning altogether. Her critique is more about how originalism has often narrowed the possible sources and silenced many historical actors. She wants a larger conversation: what “we the people” has meant and might mean.

VII. Conclusion: The Boldness and Necessity of Lepore’s Challenge

Jill Lepore’s work represents a decisive and provocative intervention in the living constitutionalism vs originalism debate. Her bold challenge is not simply to argue for one side over another but to reframe how we think about constitutional interpretation: emphasizing amendability, inclusivity, public engagement, and the legitimacy of constitutional change.

In a time when constitutional issues are not merely abstract—when they touch on racial justice, environmental crisis, civil rights, democratic polarization—the question is not only which interpretive theory is more elegant, but which one better serves justice, democratic legitimacy, and adaptability. Lepore contends that originalism, in its dominant form, has gradually undermined those ends.

Adopting more of Lepore’s vision would not be easy—it would require significant political, legal, and cultural shifts. But the cost of failing to make constitutional meaning more responsive could be higher: loss of civic trust, increased conflict over courts, alienation of populations whose rights or values are not well reflected in constitutional jurisprudence.

In the end, Lepore’s challenge is a summons: to take seriously the living Constitution—not as a rhetorical flourish, but as a working project of history, law, democracy. To accept that We the People are not only the framers and ratifiers but all those who live under and interpret, contest, and change the Constitution across generations.