BOOK REVIEW: We the People

We the People -- Jill Lepore – 581 pages (702 with notes and index)

Harvard Professor of Law and Professor of History Jill Lepore's book, We the People, provides a thoroughly researched analysis of key actors and events that have influenced American attitudes about constitutional law in general and our specific Constitution. As with most of Lepore's written work, her emphasis extends beyond the Cliff's Notes version of history and digs into actors and events beyond common knowledge to better explain the operation of the machinery when much of it makes little sense from what can be seen at the surface.

While thorough and detailed, the writing is concise yet conversational, making it a book the reader doesn't have to will themselves through. If you're interested in the topic, the pages will turn fast enough. The book does draw upon shorter content Lepore wrote for other publications such as The New Yorker dating back to 2022. A summary version of the themes of the book was published in The Atlantic on September 10, 2025 prior to the book's release on September 16.

Given the three-year span of sources assembled and edited into this final book, the expected sense of final message from the book at the time it was started might differ signicantly from its final message as processed in the present in October of 2025. At inception, the book might have been pursued as an effort to assemble a thorough history to make a point that Americans needed to become far more comfortable with amending the Constitution in order to correct some major problems. As of October 2025, nine months into an administration openly defying constitutional limits every day, the book likely reads in a vastly different manner than Lepore could have predicted in 2022. The takeaway in 2025? If Americans cannot reach consensus on actually amending the Constitution, the existing Constitution and its corrupted interpretations will combine to move the country backward decades, if not centuries or fail to preserve the country entirely.

Recurring Themes

Before delving into a few deep dives on specific points of interest in the book, there are a few common themes that arise throughout the events described in Lepore's history that merit summarization.

Selfishness and Selective Righteousness -- The book cites too many incidents to count in which specific interests looking for expanded rights under the Constitution competed with each other and set back progress for all rather than identifying and fighting from common ground. This me-first mentality has delayed improvements in racial equality, voting rights, labor protections and environmental protections literally for hundreds of years. Part of this can be chalked up to a clear understanding of the difficulty of winning change via amendment and a fear that voters would better focus on ONE issue at a time. However, that assumption cemented the perception of change by amendment being difficult. It also required CONSIDERABLE blinkered interpretation of reality over decades. Black organizations did NOT supporting women's suffrage because clearly, ensuring voting rights of black MEN was more important than WOMEN in general. (WHY? What is MUTUALLY EXCLUSIVE about these goals?) Black organizations didn't support efforts for environmental protections in the 1970s because environmental groups were insufficiently supportive of prioritizing urban renewal and protections. (Again, what is MUTUALLY EXCLUSIVE about these goals?). Women opposed protections against child labor because they were convinced it would prevent parents from forcing children to chop wood or do other chores and efforts to halt child labor would distract from efforts to win women's suffrage. (Again, did women seriously believe children working 60 hours per week in coal mines and factories WASN'T as serious a problem as women securing the vote? What is mutually exclusive about these goals?) Here's a perfect example of this dynamic, involving two of the most famous progressive figures in American history, from a face to face debate regarding the then-pending Fifteenth Amendment:

Frederick Douglas rose to speak against this position. "I do not see how any one can pretend that there is the same urgency in giving the ballot to woman as to the negro," he said. "When women, because they are women, are hunted down through the cities of New York and New Orleans… when they are in danger of having their homes burnt down over their heads; when their children are not allowed to enter schools; then they will have an urgency to obtain the ballot equal to our own." Susan B. Anthony rebutted him, betraying her belief that educated white women were more deserving of the vote than uneducated Black men. "Let the question of women [be] brought up first and that of the negro last," Anthony said. "Mr. Douglas talks about the wrongs of the negro; but with all of the outrages that he today suffers, he would not exchange his sex and take the place of Elizabeth Cady Stanton."

Try, Try Again... -- Given the longevity of the US Constitution, the initial reaction of many after reading about the thought that went into the numerous checks and balances that were present from inception is one of amazement. How did a small group of men get so much right out of the gate? The easy answer is they DIDN'T get much right out of the gate. The first attempt was the Articles of Federation which barely sufficed to guide the country through the Revolution. The "Constitution" wasn't US1.0, it was US2.0. The better answer is that the Constitution represented an accumulation of lessons in government and power learned across thirteen states who already encountered many of the debates that affected the new Constitution. Many of the states had revised or completely rewritten their constitutions several times by the time the 1787 effort began. As a result, the initial US Constitution reflected DECADES of cumulative experience writing and interpreting such documents and a firm belief in the need to allow them to be amended. No state constitutions written at the time were expected to last more than twenty years without a convention to rewrite them from scratch.

Machine Versus Organism -- The mental model politicians have used when thinking about the purpose of the US Constitution very quickly divided into two metaphors. At the time of its origination, many thinkers – enamored by newly clarified concepts of astronomy and physics – pictured a constitution functioning in the same fashion as an orrery, a mechanical contraption built to physically model the interrelated orbits of the sun and the planets. This mechanical view brought with it an underlying assumption that the logical model being visualized was perfect and the machine would just need processes to maintain the machine in that original pristine state. Many others assumed a constitution would NEVER be perfect and would REQUIRE either support for modification on an ongoing basis or a COMPLETE REWRITE every generation or so, maybe every two decades. In the latter 1800s as understanding of biology took hold, this second mindset began to adopt biological / evolutionary terminology in public debate. Early on in the country's history, even those favoring the mechanical metaphor quickly understood that the states (the "planets" in the metaphor) were not static but were changing in population and economic power and any planetary balance would require frequent readjustments to the rules governing their interactions.

Amendment Versus Interpretation -- Given the original Constitution the United States created and its checks and balances, disagreements over the actual operation of the government and the actual effects of the rights granted to those within the country very quickly morphed into debates about achieving changes through AMENDING the Constitution or INTERPRETING it in different ways. At the outset, those creating the framework absolutely believed new demands would be met via amendment. The possibility of interpretation as a means of change only grew obvious after cases such as Marbury v Madison in 1803 that established the concept of judicial review and McCullock v Maryland in 1819 that asserted the supremacy of federal law over state law, simplifying the expansion of federal power. The trade-offs between amendment and interpretation as means of progress were instantly magnified due to the fact that the most contentious issues that cropped up in the first decades of the new country's existence all touched upon the most controversial elements of the original constitution – slavery, voting rights, the Electoral College – and thereby immediately encountered the paralysis made possible by the original sins of the Constitution which made gaining ratification on any amendment affecting these issues impossible in the required plurality of states. With short periods of exceptions, usually following major wars, America has been stuck in that paralyzed state, unable to move forward via amendments ever since, heightening the attention paid to altering court interpretation through court appointments.

Constitutional Originalism -- Given the focus on the use of interpretation rather than amendment to obtain constitutional changes, the philosophy applied to interpreting the Constitution has become paramount. The TERM originalism entered common use in 1981 but was formally promoted a decade earlier by Robert Bork. However, the CONCEPT of originalism in constitutional law is nearly as old as the first efforts to amend the Constitution to provide rights for blacks or provide voting rights for women. Since its inception, originalism has always been and remains to the present an intellectual charade for justifying attempts to ignore or negate any changes to the constitution which added rights or provided protections to individuals. It is completely at odds with the expectations and desires expressed in nearly every contemporaneous document from the time the Constitution was written and is utter historical and legal farce.

What Does Amendment Actually Mean?

Despite the Constitution including language in Article V describing the manners in which the Constitution could be amended, the contributors to the Constitution never documented any conclusion they reached about literally WHAT an amendment actually entailed. This is actually a very subtle but utterly CRUCIAL understanding to reach. The best way to explain this problem in modern parlance is to think of the Constitution as source code in a computer language. Imagine the source code is divided into seven modules ("articles"). The source code has been published, everyone has viewed the code, the code has been compiled and upon running it, a problem is found in "article II" and everyone agrees on how to fix that bug. How should the proposal to amend the source code be provided for debate? As a series of individual detailed instructions ("insert NOT between "shall provide" in sentence 7 of paragraph 2") referencing the original text? Or as a new standalone block of prose appended to the end of the Constitution that describes the new desired result ("the right of individuals to carry arms while acting within the context of a well-regulated militia shall not be infringed").

The written nature of amendments has critical impacts on how courts and the public reference the current net state of constitutional law and how much additional interpretation would be required as the document undergoes amendment. The "edit in place" approach would keep the document concise with all language regarding a given process or right located in its original location. However, it would become harder to trace the provenance of changes and their intent over time. The "append-to-the-end" approach simplifies tracking the provenance of changes but requires a review of the ENTIRE document to re-analyze any particular component of the law.

At the time the Constitution was drafted, nothing was discussed or written addressing this question. Part of this is a reflection of the fact that NO ONE participating in the process was approaching their task as one of creating a perfect, seldom-changing constitution. They expected the entire collection to be gutted and re-drafted from scratch on a routine basis so "change control" within any particular incarnation was not viewed as a critical problem. Of course, this also confirms an idea that those doing the drafting felt themselves. NO ONE involved in drafting the Constitution claimed they were experts nor claimed their final work was perfect. If they had the terminology at the time, every participant would have labeled the original Constitution the "least-worst" thing they could create and approve. No one expected citizens two hundred and fifty years later to still be referencing exact phrases they wrote down in a hall in Philadelphia in 1787. We're old men now. It's your decade. It's your turn in the barrel. Good luck with THAT.

Historical Mulligans?

It is tempting for some to look back over two hundred and fifty years and essentially spot prior generations a moral mulligan (or two, or three or five…) when looking at such obvious flaws such as allowing slavery, the 3/5ths compromise, denying the vote to women, etc. "They weren't as sophisticated and enlightened as us current day people, you can't hold eighteenth century people accountable to twenty first century mores and norms." Of course, this thinking isn't really giving a mulligan to our ancestors, it's giving a mulligan to ourselves for inheriting a system that started with such a morally compromised framework.

As with her prior book These Truths, LePore makes it clear in We the People that while we may not be able to travel back in time and hold our ancestors accountable, those ancestors ABSOLUTELY understood all of the moral compromises they were making at the time. In 1787, other countries had banned slavery, other countries had granted women the right to vote and some states in the new union had already granted black men the right to vote. Vigorous debates were conducted during the drafting of the Constitution and these issues were hotly re-debated in every state as ratification votes were taken. The implication for present-day Americans is that we can't downplay the need to correct core flaws with some belief that we only recently figured out the true nature of these flaws in the last thirty to fifty years and "these things take time." The flaws we debate every day TODAY have been hotly debated since the original Constitution was written. They've been "known bads" since Day One.

The Invisible Court

A key success in We the People involves presenting examples of how operating in interpret mode rather than amend mode simplifies the task of blocking improvements. When the machine has disabled amend-mode operation and change can only arise from changes in interpretation, the levers available for combatants to use in halting such changes are virtually unlimited:

• appointments to the Supreme Court
• appointments to lower Federal and State courts
• appointments to prosecutor positions to control what cases are filed
• appointments to lower Federal and State courts
• strategic changes in executive policy

LePore points out two notable examples of this problem, both from relatively modern history and both affecting women's rights. As a result of the recent Dobbs v Jackson Women's Health ruling overturning Roe v Wade, many Americans may now understand that part of justification cited by conservatives in tossing Roe was that the original case became framed in the language of a right to privacy rather than a right to gender equality. Those arguing the case for Roe and those on the Supreme Court eventually approving the Roe verdict both thought the country had not progressed far enough in its thinking about equal rights for women to accept a ruling founded in equality and equal protection. Instead, they thought arguing the case as a privacy issue and tying that through the then-recent 1965 case Griswold v Connecticut that outlawed bans on contraception also based on privacy notions tied to the Fourteenth Amendment would be a safe enough path.

It worked initially but the Roe decision galvanized ultra-conservatives who began working to systemically infuse the entire judicial system with judges outwardly hostile to abortion rights in particular and privacy / equality rights in general. By June of 2022, a majority of Supreme Court justices were willing to un-see a right to privacy the same court declared in Roe v Wade and reversed the interpretation, allowing states to re-impose abortion bans. Had the original Roe case been argued on equality grounds rather than privacy, it would have proven much more difficult for any Supreme Court to reverse such a decision since such a reversal would have much wider consequences. Consequences that might even affect men.

Interestingly, LePore's other example of the hidden machinery altering the course of constitutional law is the Equal Rights Amendment. In 1971, Ruth Bader Ginsburg acted as attorney for Sally Reed who had sued her husband after the state of Idaho had automatically granted him control of an estate – simply because he was a man. Ginsburg argued this violated equal protection under the Fourteenth Amendment based on sex, even though the final ruling in Reed v Reed didn't explicitly cite sex as the trigger. Ginsburg then handled a case of a woman who sued the Department of Defense after becoming pregnant and being told she would have to either have an abortion or quit her job. Again, Ginsburg planned on using that case, Struck v Secretary of Defense, as a lever to argue for sexual equality under equal protection language in the Fourteenth Amendment. By 1972, the Equal Rights Amendment had passed the House and Senate and was undergoing ratification votes in the states. Not knowing how long ratification might take or how long her new case would take to trickle up to the Supreme Court, Ginsburg assumed if the ERA was ratified prior to her case reaching the Supreme Court, she could point to the ERA and win the case. If the ERA had not been ratified, the case could be argued as planned on an equal protection basis and essentially establish equal rights for women without ratification of the ERA.

The requirement for female military personnel to have abortions rather than take leave to have children was Defense Department policy at that time. Knowing the case was going to reach the Supreme Court, the Nixon Administration instead instructed the Defense Department to reverse its policy. That eliminated the impetus for the case and the issue was never heard in the Supreme Court. Had the case been heard, the US today might have a clearly established precedent of equal rights for women and, implicitly from that, abortion rights. Knowing at that point that interpretational changes were a more likely path to achieving equal rights than the ERA winning ratification, the Nixon Administration took the case out of that interpretational path by eliminating the case. To this day, virtually no one in America understands how closely equal rights and abortion rights were to being established on solid ground from that case. After squelching what might have been a perfect case to "win" equal rights via interpretation, the 1973 decision on Roe v Wade energized conservatives enough to stall the amendment for equal rights short of ratification, its ratification window expired and no attempt has been made since. Now, women have no nationwide abortion rights, they still do not have equal rights in general and contraception rights under Grizwold could very well be eliminated next.

The professionals working in the shadows exercising all of these hidden flippers and bumpers in American's constitutional pinball machine wouldn't have it any other way. It's much easier to defeat your enemy when you can arbitrarily change the rules, change the venue or cancel the game entirely at will.

Picking One Over-Arching Lesson

One mental exercise I occasionally undertake while reading a serious book involves purposely trying to find THE single most interesting, unexpected or useful nugget of insight from the entire work, consolidate it and simplify it as much as humanly possible, then analyze what's left to see how much truth remains in that nugget. From reading We the People, that over-simplified golden nugget of truth would be this:

Every critical problem facing America today – EVERY SINGLE ONE – ultimately stems from the racism baked into the original Constitution via the structure of the Senate, the Electoral College and the lack of clarity around voting rights.

I suspect LePore would actually agree with much of what follows but here is the longer train of thought behind that statement.

The drafters had ZERO expectation of creating a "perfect" constitution that would hold up forever unaltered. The drafters knew the country had already surpassed the limits of what could be managed with the tools under the Articles of Confederation. The drafters felt to a man that SOME new union was better than collapsing back to thirteen independent states. Drafters from slave states would never consent to a constitution that eliminated their existing slave property. Drafters from non-slave states would never consent to language that expanded slavery or protected it in perpetuity. Drafters from slave states knew they could not obtain language protecting slavery in perpetuity so they demanded mechanisms by which it would be extremely difficult to amend the constitution to ban it at any later point via democratic, simple majorities or even super-majorities (2/3rds). White southern men were less than fifty percent of the total voting-eligble male population so southern states demanded House seats and Electoral College votes be mathematically derived from population including 3/5ths of all slaves, even though none obviously had voting rights or ANY rights under the laws they were proposing. Non-slave states ultimately accepted that arrangement as part of the cost of security ANY constitution for a new union.

And a second over-arching corollary stemming from THAT conclusion is this:

Every critical problem facing America today STILL stems from CURRENT DAY racism that is still being reinforced by these original anti-democratic frictions built into the Constitution that still produce a grossly non-representative House and Senate and have ultimately paralyzed the country's ability to amend the Constitution to correct these flaws.

Those are not the same point. The latter point is that our political parties have devised means of leveraging these core flaws to generate perpetual strife and angst useful for fundraising to preserve power but a critical mass of Americans are now so poorly educated about the actual mechanics of government that they are opting out of participation rather than strategically voting for policies that could eliminate these flaws. It is also absolutely clear that the Republican Party is hellbent on reversing voting rights laws dating back sixty years and removing minorities from voting roles to further protect gerrymandered districts and retain power at the state and federal level. The Supreme Court is set to hear a case this term that could completely gut the Voting Rights Act nationwide and prior rulings have included opinions indicating many on the court hope to do exactly that.

The real question stemming from this conclusion is one Lepore doesn't address and frankly I don't want to address. It's dark…

Given this paralysis, what happens next? If the parties have perfected ways to retain power while doing nothing to solve Gilded Age level wealth discrepancies and despotic, fascist actions of a President, how long can this status quo continue? If one party is hellbent on further adopting tactics which are completely un-Constitutional, is the opposition bound to constrain their fight to constitutional means when the other side has abandoned it and has complete power?

What's the Point of This Book?

Is that an exasperated, rude question? Certainly Jill Lepore had goals for writing We the People. Her prior book These Truths served as a compendium of debunked fractured fairy tales of American history. That book covered the entire scope of the country's history from Jamestown and Plymouth to the present. In many cases, the real drivers of turning points in American history (colonial and independent) were not the names and events made famous in history books or Schoolhouse Rock videos of the 1970s. The real drivers were often people off to the side of those in the spotlight who triggered court decisions or altered the path of crucial legislation (enabling it or killing it).

We the People could be viewed as a follow-up installment to These Truths, only zoomed in to events surrounding the formulation of the Constitution and its evolution from its origin to the present. LePore's core point in writing the book is to convey that amending a constitution is the only way to keep it alive. Many conservatives would like Americans to believe that all of the existing amendments and any new proposals are corruptions of the original, "pure" and perfected Constitution and that all of our troubles stem from straying away from that original perfect text. Of course, reverting to 1787 would eliminate nearly two hundred and fifty years of racial / social progress and economic / environmental protections. The truth is that amending the Constitution is required for the country to move forward and attempts to amend the Constitution should be viewed with hope, not fear.

So, for readers, what is the point of reading this book, especially when it is clear those that would benefit most from reading this book are the most unlikely to read it? I certainly learned of many random intersections of events that produced out-sized impacts on modern America but reading this book didn't change my mind on anything. It is possible, however, that the details and anecdotes are the point of reading the book. The people who NEED to read this won't, but they may still bump into people who do read this book. As current issues come up in conversation and someone NEEDING to read this make a comment citing fracture fairy tale history, it might be possible in that situation with that one example to puncture that bubble of ignorance and get one correcting fact into their understanding of an important issue. Given Americans' tendency to avoid thinking by picking single issues to vote on, maybe helping to correct their thinking on that one issue is enough to get them on the road to deprogramming and back to sanity.

Maybe that's how things change. One anecdote and one voter at a time

WTH