Reading the Constitution Like a Historian: A Conversation with Jill Lepore

Jill Lepore holds a joint appointment as the David Woods Kemper ’41 Professor of American History at Harvard University and Professor of Law at Harvard Law School. Widely known as a prize-winning essayist, Lepore is a staff writer for The New Yorker, where she writes about American history, law, literature, politics, and AI. She is also an award-winning novelist. Her latest book, We the People, traces the historical efforts of ordinary Americans to understand and amend the Constitution. This fall, Lepore also taught a jointly offered course between the Law School and the History Department on the rights of nature, a fitting reminder that her work moves fluidly between both worlds. With originalism reshaping constitutional debate and questions of history increasingly central to legal interpretation, the boundary between law and history has never felt more porous. The Harvard Undergraduate Law Review (HULR) sat down with Lepore to explore that intersection—and what it means to bring a historian’s eye to the law.

This interview was conducted in the Spring of 2026. It has been edited for brevity and clarity.

HULR:
To start things off — I know you’ve said in the past that the idea for We the People came from teaching and seeing your students participate in a constitutional convention. I remember going through the mock convention in Rights of Nature, and I was wondering if watching students try to think constitutionally influenced the way you think about the amendment process at all.

Jill Lepore (JL):
That’s interesting, yeah. I used to teach this Gen Ed course called The Democracy Project, and I think I only once did a convention. I was actually just looking this up — it was in 2021, because everyone was still wearing masks.

I had taught the course a couple of times and decided there needed to be more structured debate. So I planned out this convention model that we then adopted in the Rights of Nature class. I’m actually doing it again in the fall — a joint law school–college course.

HULR:
I think I’m taking that.

JL:
Oh yeah? Great!

I ended up being frustrated that there was no way for students to research previous attempts to amend the Constitution. So I got a grant and built this Amendments Project — a free, searchable database of every attempt to amend the U.S. Constitution.

But yeah, I learned a lot from how they were thinking. I was struck by the fact that imagining what one might want to do — if it were possible to amend the Constitution — was intellectually really generative. They learned a lot about political trade-offs.

We had the convention as a final exam, and there was a striking moment: the amendment with the most support was a voting rights amendment, and one of its provisions was felon enfranchisement.

There was also a group of students who proposed an amendment to that — saying that people convicted of sexual offenses could never regain the right to vote. That was a red line for them. They were like, “We’ll support this, but only if you change this.”

This was 2021 — there was a lot of intensity around Me Too — and it created a real impasse. They were trying to enlist support: “If you do this, we’ll support your amendment.” But the voting rights coalition didn’t want to support what they were asking for.

It ended up being a way for students to argue about substance without doing role-play, which I don’t think works very well in college classrooms.

So I guess the short answer is yes — I learned a lot watching students grapple with what’s possible by way of constitutional reform. Even if the amendment mechanism isn’t really workable, it was incredibly useful for them to be having those arguments.

It also made me think — looking back at American history, there have been many of these efforts. In our convention, initially no amendment passed the threshold set by the Rules Committee. Then they introduced a last-minute backup plan to lower the bar, and one amendment passed — the voting rights amendment.

Even though they couldn’t build sufficient coalitions, the process itself was civically useful and intellectually generative. That’s part of what made me think there might be a book in this — the fact that these efforts failed doesn’t mean they were insignificant.

HULR:
You’ve talked about efforts to get rid of the Electoral College involving similar dynamics. Looking at failed amendments, is there one that stands out to you the most?

JL:
Among failed amendments, I think the most interesting are the ones that went to the states for ratification and failed — there are six or seven of those. Then there are a few more that passed one chamber of Congress.

Of those, the Child Labor Amendment is by far the most interesting to me. A lot of people know the Equal Rights Amendment, which went to the states in 1972 and wasn’t ratified — though there’s a legal dispute about that.

The Child Labor Amendment’s failure is really instructive. People assumed it would be ratified because it had so much support. But there was a well-funded campaign against it, and it shows how easy it is to defeat ratification if you have money and a strong ground game.

It came at the beginning of mass advertising, and you can see how effective messaging can be at flipping the meaning of an amendment. You see something similar with the ERA half a century later — but it’s less surprising by then. What’s surprising is that ERA advocates didn’t study what happened with the Child Labor Amendment.

The Electoral College amendment in 1969–70 is different. It passed the House but didn’t make it out of the Senate because of partisan politicking — particularly Southern segregationists trying to punish Democrats over Supreme Court nominations. Short-term political vengefulness ended up defeating an amendment that had around 80% public support.

HULR:
Do you think courts should look at failed amendments at all when thinking about constitutional interpretation?

JL:
I think courts really can’t — they don’t become law, so they’re not legally relevant. But historians don’t have an excuse not to look at them. They’re a good index of political will.

What I do think courts have an obligation to consider — and don’t — is the record of people who were so disenfranchised they couldn’t participate in the amendment process.

For example, there were over 200 Black conventions in the 19th century — formal gatherings where Black Americans deliberated constitutional meaning and reform. Their proceedings were recorded and are now available online, but to my knowledge they’ve never been cited in court decisions.
If we care about public understanding of the Constitution — as in public meaning originalism — then we should care about those perspectives too. The same is true of women’s rights conventions.

There’s a strong argument that failed amendments themselves don’t belong in legal interpretation. But ideas that never even made it into Congress because their advocates were excluded — that’s different.

HULR:
You have appointments in both history and law. Are there things historians misunderstand about law, or things people in law misunderstand about history?

JL:
Yeah, both are true. And I misunderstand both too, so I’m not above it.

Lawyers think all the time about the relationship between past and present — through precedent, originalism, and so on — but historians think about that relationship very differently.

There’s a kind of mutual skepticism. Lawyers often think anyone can do history — there’s a dismissiveness about historical method. Historians, in turn, dismiss what they call “law office history,” where lawyers use the past instrumentally.

The fundamental difference is that lawyers are advocates — they look for evidence that supports their position. Historians don’t work that way. You go into the archive with a question and let the evidence shape your conclusions.

So there are real epistemological differences, even though both fields are often doing similar things. I don’t think it’s helpful for either side to dismiss the other, especially given how much history is now being used in constitutional law.

HULR:
If judges were trying to interpret the Constitution by looking at how different groups understood it — especially marginalized groups — how would you distinguish between advocacy and more “legitimate” interpretations?

JL:
A classic example is Brown v. Board of Education in 1954. The Court initially focused on the intent of the 39th Congress in drafting the 14th Amendment. But you could also look more broadly at abolitionist discourse, including figures like Frederick Douglass.

There was a dispute over what the historical evidence showed. And when Chief Justice Earl Warren delivered the opinion, he said the history was inconclusive.

Instead, the Court relied on social science evidence about the harms of segregation. The broader point was that if we want to move forward, we can’t rely only on history and tradition — because those include injustice.

Today, the Court tends to rely much more heavily on history and tradition. But from a historian’s perspective, the body of evidence is potentially infinite. Law, by contrast, operates with exclusionary rules of evidence. History is much more inclusive. That’s a fundamental difference.

HULR:
Thinking about other countries — do you think it would be a good thing if the Constitution were easier to amend?

JL:
I don’t know. Our civic capacity for democratic deliberation is pretty weak right now. Before making amendments easier, I’d want to see that capacity strengthened. I’m not sure how we get there.

HULR:
You’ve written a lot about AI for The New Yorker — how do you think it’s affecting democratic deliberation?

JL:
Not positively. There’s emerging research — sometimes called “human enfeeblement” — showing that relying on AI for cognitive tasks can diminish our ability to do those tasks ourselves.

If people move from reading full articles to headlines to AI summaries, their ability to analyze and synthesize information declines. That has real implications for citizenship if people increasingly outsource thinking.

HULR:
Final question: If you could have dinner with any Supreme Court justice, past or present, who would it be?

JL:
I’m not really a Supreme Court fangirl — I care more about how the public understands the Constitution than about the Court itself. And I think we give far too much attention to the sort of celebrity-ification of the Supreme Court. But if I had to give a name, I’d say Elena Kagan, since I know her from when she was dean here. She’s very funny.

HULR:
That’s perfect. Thank you so much for your time.

JL:
I’m excited you’ll be in the class in the fall.

HULR:
I’m really looking forward to it.