C2025-09

How Originalism Killed the Constitution A radical legal philosophy has undermined the process of constitutional evolution.

By Jill Lepore Illustrations by Tyler Comrie; typography by Sean & Eve, There Is Studio photo-illustration of the U.S. Constitution with a bouquet of flowers tied with ribbon on top of it Source: Nora Carol Photography / Getty September 10, 2025 Share

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Abushy-browed, pipe-smoking, piano-playing Antonin Scalia—Nino—the scourge of the left, knew how to work a crowd. He loved opera; he loved theater; he loved show tunes. In high school, he played the lead role in Macbeth: “I have no spur to prick the sides of my intent, but only vaulting ambition.” As clever as he was combative, Scalia, short and stocky, was known, too, for his slightly terrifying energy and for his eviscerating sense of humor. He fished and hunted: turkeys and ducks, deer and boar, alligators. He loved nothing better than a dictionary. He argued to win. He was one of the Supreme Court’s sharpest writers and among its severest critics. “It’s hard to get it right,” he’d tell his clerks, sending back their drafts; they had that engraved on a plaque. Few justices have done more to transform American jurisprudence, not only from the bench but also from the seminar table, the lecture hall, and the eerie velveteen intimacy of the television stage. He gave one speech so often that he kept its outline, scribbled on a scrap of paper, tucked in his suit pocket. The Constitution is not a living document, he’d say. “It’s dead. Dead, dead, dead!”

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View More Two hundred and fifty years after Americans declared independence from Britain and began writing the first state constitutions, it’s not the Constitution that’s dead. It’s the idea of amending it. “The whole purpose of the Constitution,” Scalia once said, “is to prevent a future society from doing what it wants to do.” This is not true. One of the Constitution’s founding purposes was to prevent change. But another was to allow for change without violence. Amendment is a constitution’s mechanism for the prevention of insurrection—the only way to change the fundamentals of government without recourse to rebellion. Amendment is so essential to the American constitutional tradition—so methodical and so entirely a conception of endurance through adaptation—that it can best be described as a philosophy. It is, at this point, a philosophy all but forgotten.

The philosophy of amendment is foundational to modern constitutionalism. It has structured American constitutional and political development for more than two centuries. It has done so in a distinctive, halting pattern of progression and regression: Constitutional change by way of formal amendment has alternated with judicial interpretation, in the form of opinions issued by the U.S. Supreme Court, as a means of constitutional revision.

This pattern has many times provided political stability, with formal amendment and judicial interpretation as the warp and weft of a sturdily woven if by now fraying and faded constitutional fabric. But the pattern, which features, at regular intervals, the perception by half the country that the Supreme Court has usurped the power of amendment, has also led to the underdevelopment of the Constitution, weakened the idea of representative government, and increased the polarization of American politics—ultimately contributing, most lately, to the rise of a political style that can only be called insurrectionary.

The U.S. Constitution has one of the lowest amendment rates in the world. Some 12,000 amendments have been formally introduced on the floor of Congress; only 27 have ever been ratified, and there has been no significant amendment in more than 50 years. That is not because Americans are opposed to amending constitutions. Since 1789, Americans have submitted at least 10,000 petitions and countless letters, postcards, and phone and email messages to Congress regarding constitutional amendments, and they have introduced and agitated for thousands more amendments in the pages of newspapers and pamphlets, from pulpits, at political rallies, on websites, and all over social media. Every state has its own constitution, and all of them have been frequently revised and replaced. One delegate to a 19th-century constitutional convention in Missouri suggested that a state constitution ought to be rewritten every 14 years on the theory that every seven years, “every bone, muscle, tissue, fibre and nerve matter”—every cell in the human body—is replaced, and surely, in twice that time, every constitution ought to be amended too.

Since 1776, the states have held some 250 constitutional conventions and adopted 144 constitutions, or about three per state. Every state constitution currently in place has an amendment provision. For most of American history, the states have been exceptionally busy holding constitutional conventions, but as with amending the U.S. Constitution, the practice has stagnated. (No state has held a full-dress convention since Rhode Island did in 1986.) Nevertheless, the practice of amendment by popular vote thrives in the states, where constitutional revision is exponentially easier to achieve. Since 1789, some 7,000 amendments formally proposed in the states have been ratified, more than two-thirds of those introduced.

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Article V, the amendment provision of the U.S. Constitution, is a sleeping giant. It sleeps until it wakes. War is, very often, what wakes it up. And then it roars. In 1789, in the aftermath of the Revolutionary War, Congress passed 12 amendments, 10 of which, later known as the Bill of Rights, were ratified by the states by 1791. A federal amendment requires a double supermajority to become law: It must pass by a two-thirds vote in both houses of Congress (or be proposed by two-thirds of the states), and then it must be ratified by three-quarters of the states (either in legislatures or at conventions). No amendments were ratified in the 61 years from 1804 to 1865, and then, at the end of the Civil War, three were ratified in five years. What became the Thirteenth Amendment in 1865, abolishing slavery, had first been proposed decades earlier. No amendments were ratified in the 43 years from 1870 to 1913, and then, around the time of the First World War, four were ratified in seven years. The Nineteenth Amendment, granting women the right to vote and first called for in 1848, was ratified in 1920, after a 72-year moral crusade.

Again, the giant slept. In the 1930s, President Franklin D. Roosevelt largely abandoned constitutional amendment in favor of applying pressure on the Supreme Court, and the civil-rights movement adopted a legal strategy that involved seeking constitutional change through the Court too. The Second World War did not awaken Article V, because mid-century liberals abandoned amendment in favor of the exercise of executive and judicial power. From 1961 to 1971, as the United States became engulfed in the Vietnam War, Americans ratified four amendments and seemed very likely to ratify two more. Those that succeeded included the Twenty-Fourth Amendment, which in 1964 abolished poll taxes (generally deployed to suppress the votes of the poor and especially of Black people), and the Twenty-Sixth Amendment (which in 1971 lowered the voting age to 18). Both relied on a broad liberal consensus. Other efforts, such as an amendment abolishing the Electoral College, which passed the House in 1969, failed in the Senate. The Equal Rights Amendment, prohibiting the denial or abridgment of rights on the basis of sex, was introduced in Congress in 1923 and sent to the states in 1972. It fell short of the 38 states needed for ratification before the deadlines set by Congress. Liberals soon stopped proposing amendments, and amendments proposed by conservatives—providing for school prayer, banning flag burning, defining marriage, protecting fetal life, and requiring a balanced budget—all failed, leading conservatives, like earlier liberals, to instead seek constitutional change through the federal judiciary. The amending stopped. The Twenty-Seventh Amendment, which concerns congressional salaries and was ratified in 1992, was one of the 12 amendments sent by Congress to the states in 1789, and then was more or less forgotten; it can hardly be said to have introduced a new idea into the Constitution. The giant has not awoken since, despite half-hearted attempts to rouse it, mainly in the form of presidential political theater. Ronald Reagan supported a balanced-budget amendment. Bill Clinton supported a victims’-rights amendment (granting rights to victims of crime, a law-and-order answer to the defendants’-rights movement of the 1960s), and George W. Bush called for a defense-of-marriage amendment (identifying marriage as between a man and a woman). Neither made any headway. Joe Biden, after stepping down from his reelection campaign in 2024, proposed a constitutional amendment to reverse the Supreme Court’s decision that year granting the president considerable immunity from criminal prosecution. The giant did not wake.

Between 1980 and 2020, members of Congress proposed more than 2,100 constitutional amendments. Congress, more divided with each passing year, appr