The Philosophy of Amendment

The people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.

—James Madison, proposed first amendment to the
Preamble of the U.S. Constitution, June 8, 1789

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We the People. The Constitution of the United States is made of things that are born, live, thrive, decay, and die: insects, animals, plants, ideas. In order to form a more perfect Union. Each of its elements began, long ago, in the loamy earth, hatching and creeping from an egg or a seed, or slipping, slick and squealing, from the womb of the mind. Establish justice, insure domestic tranquility. The text is written on parchment made from sheep, fleeced, their hides soaked in lime, stretched and dried. Provide for the common defense. The ink came from the leaf buds of oak trees, swollen to the size of musket balls by the eggs of wasps. Promote the general welfare. Its words were shaped by quills fashioned from the feathers of molting geese. Secure the blessings of liberty. Its lofty, momentous ideas came from the minds of men, long since dead, and from the books they read, astonishing and ancient. To ourselves and our posterity. Of the hundreds of nations with written constitutions, the United States’s Constitution is the oldest, a relic, a fossil, more brittle than bone.

Yet long, long ago, when it was new, it was very new, a startling eighteenth-century invention. The U.S. Constitution is made of things that are born, live, and die, but it is also an ingenious apparatus, an exquisitely wrought mechanical device, an artifact from the age of Isaac Newton, something akin to a perpetual motion machine. The men who built it applied the latest mathematical and geometrical principles of gravity and motion to the new science of politics. James Madison defined representation as the “great mechanical power in government, by the simple agency of which the will of the largest political body may be concentrated, and its force directed to any object which the public good requires.”[1] He described the Republic as if he were a geometer, wielding a pencil and compass, etching a perfectly exact circle on a map of the United States, its center the nation’s capital, offering up observations like the propositions of a mathematical proof: “[T]he natural limit of a democracy is that distance from the central point which will just permit the most remote citizens to assemble as often as their public functions demand.”[2] The planets had Copernicus and Newton and Kepler; politics had Locke and Hobbes and Montesquieu. “Let our Government be like that of the solar system,” Pennsylvania delegate John Dickinson said at the Constitutional Convention. “Let the Genl. Govt. be the Sun and the States the planets, repelled yet attracted. . . .”[3] Alexander Hamilton attributed the superiority of the American Constitution over the constitutions of the ancient world to progress in the empirical sciences. “The science of politics,” Hamilton wrote, “like most other sciences, has received great improvement”: Checks and balances, natural rights, proportionate representation, “these are wholly new discoveries, or have made their principal progress towards perfection in modern times.”[4] All these advances meant that the machinery of the Constitution was more perfectly balanced than that of any other government ever designed before, Hamilton insisted. And if the ancients had described only small republics, while the United States, even then, was vast, this represented only “the ENLARGEMENT of the ORBIT within which such systems are to revolve.”[5]

It is sometimes said that the Framers modeled the Constitution after a clock, its gears and springs forged with precision and arranged in perfect balance, but it would be more accurate to say that they were attempting instead to build something more like a model of the solar system, a machine known as an “orrery,” after the Fourth Earl of Orrery, who had built one at the beginning of the eighteenth century.[6] There was, at the time, a very famous orrery in America; several of the Framers had seen it, and all of them would have known about it.

In 1776, when the United States declared independence, a Boston watchmaker named Joseph Pope began building an orrery. Pope’s orrery was six-and-a-half feet wide and exactly as tall, an elegant Chippendale twelve-cornered cabinet of mahogany and glass, containing a set of clock-like gears, forged of brass, and planets made of ivory, the tusks of elephants.[7] By the spring of 1787, weeks before the opening of the Constitutional Convention in Philadelphia, he had very nearly finished.[8] Set in motion—cranked by hand—it displayed the workings of the solar system, every planet and each of its moons turning on its axis and traveling in its orbit, a perfect mechanical model of the known universe. It soon became a symbol of constitutionalism—an ordered, predictable universe. A newspaper called The Federal Orrery later appeared in Boston. Explained the editor: “No spectacle can be more gratifying to the patriotism, nor more useful to the union of AMERICANS, than a political ORRERY,” which displays the planets “revolving, by the equal energy of state-projection, and federal attraction, around the SUN OF GOVERNMENT.”[9]

In 1787, the Framers recorded this proposed system of government using ink and parchment made out of insects and plants and animals. They devised it to govern humans. But for philosophy they looked to the stars. They understood the government they were proposing to be the sun at the center of a political system whose states were so many planets. Their constitutional orrery modeled every motion, anticipated each force, and followed rules they believed to be deducible by reason. They expected that, like all machines, it would break and require everything from tiny adjustments to a major overhaul and that, as time passed, it would need to be updated with the latest advances in the arts and sciences, in politics and law, in science and technology. Having designed the Constitution by relying on great improvement in human knowledge of the universe, they included within it a mechanism for its own repair, correction, and improvement. This mechanism is known as amendment.

The amendment provision of the U.S. Constitution represents the epitome of the eighteenth-century idea of progress, the strange and hazy Panglossian faith that things get better, that the story of human history is an unending story of unending improvement. The provision, Article V, was meant to be used not only to mend the machine when it breaks but also to make alterations necessary due to the passage of time, changing circumstances, and the emergence of new ideas so that the Constitution, as it aged, would get better and better and better, in a march of political progress that the Framers expected to be as inevitable as the improvements in everything from agriculture to astronomy that they saw all around them: faster ships, more fruitful crops, more accurate maps, sharper telescopes, longer lives. “A progressive state is necessary to the happiness and perfection of Man,” Pennsylvania delegate James Wilson said to a crowd fifteen thousand strong in Philadelphia, on the Fourth of July 1788, days after the Constitution was ratified.[10] He implored Americans to continue to strive for change: “Let us, with fervent zeal, press forward, and make unceasing advances in every thing that can support, improve, refine, or embellish Society.” [11] Press forward, advance, improve, refine, embellish, progress, amend, amend, amend.

Things that are born and live decay and die; things that are made and used wear down and become derelict. By 1791, the year the first ten amendments to the Constitution were ratified, Pope’s orrery no longer worked, its brass teeth chipped.[12] As one story has it, another clockmaker inspected the machine, took out his tools, drilled a hole, and plugged in a rivet. He cranked the winch and the orrery groaned into motion until, suddenly, “the whole solar system” gave “a tremendous jump.”[13] And then it stopped. The moons no longer orbited Saturn. Jupiter no longer turned on its axis. The earth stood still. It has not worked since.

Has the U.S. Constitution fared better? The engine still sputters along, rusted and much repaired: a few necessary fixes, a handful of excellent and essential improvements, a bit of needless tampering here and there. Few would dispute that these amendments, taken together, have improved the Constitution. But is the history of the U.S. Constitution—and the age of constitutionalism that it inaugurated—a story of progress? Has the Constitution gotten better and better, made the nation, or even the world, better and better?

The U.S. Constitution is the most influential constitution in the world, even if its influence is declining.[14] It can be neither credited with nor blamed for all that is good and bad under the sun and stars. The two-and-a-half centuries since it was written are remarkable for the extension of the franchise and the assertion of human rights, for technological progress, for ever-widening knowledge of the natural world, for increases in life expectancy and the standard of living, and for economic prosperity and staggering population growth, and yet they are equally remarkable for the scale of human violence in the form of imperialism, dispossession, enslavement and genocide, the poisoning of the earth, the development and deployment of weapons of mass destruction, the mass extinction of wildlife, catastrophic climate change, and the invention of new machines: artificial persons, rightless creatures. And if, for a large portion of humankind, the last two hundred and fifty years—of political freedom and freedom from want—have represented progress, every other living thing on the planet has seen only decline. In the last ten thousand years, the earth has lost about a third of its forest; almost all that loss has happened over the last three hundred years.[15] More forest has been lost over the last one hundred years than over the last nine thousand.[16] The seas are polluted, warming, and rising faster and faster, nine inches since 1880, nearly four inches just since 1993.[17] The human population of the planet was about eight hundred million when the U.S. Constitution was written; it is now nearly eight billion.[18] Wildlife populations have fallen by two-thirds in the last half century alone.[19] Wildlife habitat is disappearing.[20] The very dirt is exhausted, barren, and vanishing—eroding and blowing away—due to tilling, overgrazing, and deforestation, desperately in need of lime, ash, and manure, nutrients that farmers and ecologists refer to as “soil amendments.”[21] The average annual temperature in Philadelphia in 1790 was fifty-two degrees Fahrenheit.[22] By 2023, it was nearly fifty-nine.[23] The loam, the sheep, the geese, the wasps, the oaks: The Constitution of parchment and ink is made of them. It presumes their world but makes no allowance for it or them, sets no force in motion to restrain the tyranny of humans over all other creatures, the birds of the sky, the fish of the sea. We the People. Nor has any amendment provided for them. And yet a world without them is a blank page, a “void,” “darkness . . . upon the face of the deep.”[24] What, in this world, does amendment any longer mean?

I. The Origins of Amendment

Constitutions are older than humans. “Wolves have a constitution,” as a Ngarrindjeri elder once put it: Every wolf knows the rules.[25] Constitutions are older than writing. But very soon after humans invented writing, they began writing down rules. The U.S. Constitution, drafted in 1787, grew from many roots, but it was also something new, a written constitution drafted by representatives of the people and ratified by men, binding both the rulers and the ruled by an act of consent. It was meant to transcend ordinary law by establishing fundamental principles about the sovereignty of the people, the structure of a government, the separation of powers, and the nature of rights. Printed and circulated, it executed a covenant among men and allowed, too, for the exertion of power over vast distances.[26] It was never understood to be a list of commandments. Instead, it was expected to be rewritten—revised, recast, and even replaced, acts of improvement contained in a very particular word: “amendment.”

The philosophy of amendment begins with the word. In English, the verb amend goes back to about the twelfth century, when it meant to correct a fault; to repair an omission; to fix what’s broken; or to improve, in a moral sense: to make something better.[27] The word shares a root, four of its five letters, and almost the entirety of its meaning, with the verb mend. Both words came to Middle English by way of the Old French verb amender.[28] To amend something is to mend it. Still, there’s a difference: You amend a text, but you mend a textile.

Like amend and mend, text and textile share a root and most of their letters and almost the entirety of their meanings. A text is made of woven letters; a textile is made of woven threads.[29] Men amended and women mended. Men wrote and revised texts—bills, laws. Women wove and repaired textiles—cloth, tapestries. Men wielded pens and operated binderies, stitching books together. Women wielded needles and operated spinning wheels and looms. By the eighteenth century, the meanings of mend and amend, text and textile, had hardly changed, except that to amend now also meant to rectify something that had become corrupted and, in that sense, not only to repair but to restore. Amend and mend have moral meanings: You can make amends, and you can mend your ways.[30] “He that resolves to mend hereafter, resolves not to mend now,” Poor Richard advised.[31] “Tell me my Faults, and mend your own.”[32] Samuel Johnson caught each of these meanings in his 1755 Dictionary of the English Language:

To AME’ND. v.a.

[amender, Fr. emendo, Lat.]

1. To correct; to change any thing that is wrong to something better.

2. To reform the life, or leave wickedness. In these two cases we usually write mend. See Mend. Amend your ways and your doings, and I will cause you to dwell in this place. Jerem. vii. 3.

3. To restore passages in writers which the copiers are supposed to have depraved; to recover the true reading.[33]

And so, in 1789, Richard Price, an English radical and outspoken supporter of the American Revolution, greeted the start of the French Revolution, “the ardour for liberty catching and spreading,” as “a general amendment beginning in human affairs.”[34] A change for the better. The American lexicographer Noah Webster, in his first dictionary in 1806, defined “amend” as “to correct, grow better, reform, mend” and the noun “amendment” as “a change for the better, a correction.”[35] All this was—and is—contained within the philosophy of amendment.[36]

Everything decays, even the law. As the English jurist Matthew Hale put it in 1697, laws, “by long tract of time[,] gather certain diseases and excrescences, certain abuses and corruptions grow into the law, as close as the ivy unto the tree, or the rust to the iron, and in a little tract of time gain the reputation of being part of the law.”[37] Or, as Montesquieu explained, “[S]ometimes it is proper the Law should amend itself.”[38] In the eighteenth century, people hoped written constitutions would endure, to bind one generation to the next. They cherished stability. But alongside that idea they held in their heads the equally important idea that these constitutions would need to be revised or even entirely rewritten, either as occasion demanded or at regular intervals.[39] This appeared to be the only way to avoid what their study of history revealed to be another law of human nature—the inevitable decay of all governments into tyranny.

The Framers believed that to form a government by consent is to reserve to the people the right to abolish it, less by the violence of revolution than by the more peaceable path of amendment. In 1776, Jefferson wrote in the Declaration of Independence that “whenever any Form of Government becomes destructive of these Ends, it is the Right of the People to alter or to abolish it.”[40] In 1789, he wrote to Madison that he believed every constitution “naturally expires at the end of 19 years”—every generation—on the grounds that the dead cannot rule the living.[41] Madison disagreed, convinced that constitutional conventions are “of too ticklish a nature to be unnecessarily multiplied.”[42] His opinion followed that of the Scottish philosopher David Hume, who had argued,

[A]s human society is in perpetual flux, one man every hour going out of the world, another coming into it, it is necessary in order to preserve stability in government that the new brood should conform themselves to the established constitution, and nearly follow the path which their fathers, treading in the footsteps of theirs, had marked out for them.[43]

Yet the weight of history has fallen on Jefferson’s side of this argument.[44]

The specific demand for an amendment provision came from ordinary Americans who insisted that their constitutions be revisable, “to rectify the errors that will creep in through lapse of time, or alteration of situation,” as one Massachusetts town meeting put it in 1778.[45] Like other towns, Lexington rejected a proposed constitution for the state of Massachusetts on the ground that it granted amendment power only to the Legislature, “[w]hereas, it appears to Us, at least, of the highest Importance, That a Door should be left open for the People in this Matter” as a means “of preventing popular Commotions, Mobs, Bloodshed and Civil War; which, too frequently, have been the Consequences of the want of Such an Opening.”[46]

The Constitution was itself an act of amendment.[47] It was written because the Articles of Confederation were technically amendable but, for all practical purposes, not. Eight times members of Congress had tried to amend the Articles but, as any change required the unanimous consent of all thirteen states, eight times they failed.[48] In Philadelphia in 1787, no one objected to the notion that the new constitution needed a workable amendment provision. “The novelty & difficulty of the experiment requires periodical revision,” said Elbridge Gerry.[49] George Mason argued that “[a]mendments therefore will be necessary, and it will be better to provide for them, in an easy, regular and [c]onstitutional way than to trust to chance and violence.”[50] The trick was devising a method of amendment that would make it neither too easy to revise the Constitution nor too hard. The bigger challenge turned out to be dealing with the slave states. Edward Rutledge of South Carolina objected that he “never could agree to give a power by which the articles relating to slaves might be altered by the States not interested in that property and prejudiced against it.”[51] The delegates made a concession to this objection by adding language guaranteeing that no amendment could interfere with the slave trade before 1808.[52] But if the slave states were to be pandered to, why not the small states? Roger Sherman of Connecticut said he was worried that “three fourths of the States might be brought to do things fatal to particular States, as abolishing them altogether or depriving them of their equality in the Senate.”[53] The delegates conceded to this objection, too, guaranteeing that no amendment could alter apportionment in the Senate.[54] Article V, in short, was saddled with the two worst compromises of the Convention: the protection of slavery and the allocation of disproportionate power to small states.[55]

And still: Article V was the triumph of the Convention; without it, the Constitution would never have been ratified. Madison regretted equal suffrage in the Senate.[56] Hamilton signed the Constitution only to avoid “anarchy and Convulsion.”[57] Washington thought the House of Representatives was too small, but, notwithstanding this and other faults of the Constitution, he took comfort in the “constitutional door” provided by the amendment provision.[58] Mason, who had said he would sooner chop off his hand than sign a constitution without a bill of rights, left Philadelphia with a list of proposed amendments.[59] “Permit me to mention one great principle, the vital principle I may well call it, which diffuses animation and vigour through all the others,” Wilson declared.[60] “The principle I mean is this, that the supreme or sovereign power of the society resides in the citizens at large; and that, therefore, they always retain the right of abolishing, altering, or amending their constitution, at whatever time, and in whatever manner, they shall deem it expedient.”[61] This vital principle, Wilson insisted, was a revolutionary principle but not an incitement to violence and instead an alternative to it. A constitution too easily amended leads to chaos. But a constitution too difficult to amend leads to chaos, too. Without amendment, Wilson argued, there would be nothing but revolution: everlasting insurrection. Article V made this Constitution “the best form of government which has ever been offered to the world.”[62]

In 1789, when Madison proposed a set of amendments to the First Congress, first on his list was one meant to precede the preamble. He wanted the Constitution to begin not with “We the People,” but with a declaration “[t]hat the people have an indubitable, unalienable, and indefeasible right to reform or change their government, whenever it be found adverse or inadequate to the purposes of its institution.”[63] A Select Committee appointed to consider Madison’s proposal found his pre-preamble wordy and cumbersome and whittled it down to a single clause. And then Congress just cut the whole thing.[64] By 1791, the states had ratified ten amendments that became known as the Bill of Rights. And still people kept proposing amendments. “When men put a machine in motion,” Washington complained to Jefferson, “it is impossible for them to stop it exactly where they would choose.”[65]

II. The Age of Progress

Despite its amendment provision, the U.S. Constitution has one of the lowest amendment rates in the world.[66] Amendments have generally come only in the briefest of downpours, in between very long eras of drought. But the droughts are remarkable, too. Between the ratification of the Twelfth Amendment in 1804 and the Thirteenth in 1865, six tumultuous and violent decades during which the nation divided over slavery and even descended into civil war, the Constitution remained unchanged. Yet no period in American history has been so consumed by the philosophy of amendment. One historian has called it “an era of permanent constitutional revision.”[67]

In 1803, the year Congress sent the Twelfth Amendment to the states, the Supreme Court asserted, for the first time, that it had the authority to declare existing laws unconstitutional. “A Law repugnant to the Constitution is void,” declared Chief Justice John Marshall in Marbury v. Madison.[68] The Court did not exercise the authority to strike down a federal statute again until 1857, in Dred Scott v. Sandford,[69] but meanwhile issued a chain of opinions that defined the meaning of the Constitution, the nature of federalism, and the scope of congressional and presidential authority. Nevertheless, a constitutional history with the Supreme Court at its center loses sight of the whole of the people, everyone originally included in “We the People” and also everyone left out: people who could not hold office or vote, or who were not citizens, or who were not legally recognized “persons.” They had constitutional ideas, too. Most of their ideas amounted to attempted amendments.[70]

Theorizing a philosophy of amendment requires widening the aperture of constitutional history. Making this adjustment has sizable and possibly revolutionary consequences for constitutional law. Most calls to make the Constitution better never reached the floor of Congress, never entered the Congressional Record, and never were consulted by Justices of the Supreme Court in their attempt to reconstruct the history of the Constitution. In 1776, Abigail Adams wrote to her husband John, “Do not put such unlimited power into the hands of the Husbands.”[71] He’d written back, “As to your extraordinary Code of Laws, I cannot but laugh.”[72] Such requests became the subject of political caricature. Their treatment by the Court is little better. Despite the vast archive of constitutional commentary by American women, as the legal scholar Reva Siegel has pointed out, in no opinion has any Supreme Court Justice ever “named or quoted women who sought to extend Founding principles of liberty, equality, and self-government to women.”[73]

A Supreme Court that is in thrall to the jurisprudence of originalism and yet consults only an impoverished historical record—the writings of the enfranchised—is unlikely to remedy forms of political inequality that characterized, and even defined, much of the nation’s history. Indeed, such a Court is fated to perpetuate those forms of inequality. An investigation of the years between the Twelfth and Thirteenth Amendments, between Marbury v. Madison and Dred Scott, with the idea of amendment at its center, is a good way to see how American constitutional history looks through a wider aperture.

Americans in this era engaged in a frenetic, nearly ceaseless process of constitutional writing revision, arguing about liberty and slavery, Native sovereignty and dispossession, immunities and privileges, citizenship and suffrage.[74] Between 1800 and 1865, thirty-eight states, eighteen just entering the union, ratified new constitutions.[75] In those sixty-five years, only six years passed in which no state in the United States held a constitutional convention. Vermont wrote its first constitution in 1777 and held amending conventions in 1786, 1793, 1814, 1818, 1822, 1828, 1836, 1843, 1850, and 1857.[76] In one ten-year period, from 1844 through 1853, more than half the states in the country held constitutional conventions.[77] In 1850 alone, delegates met in constitutional conventions in Ohio, New Mexico, New Hampshire, Maryland, Indiana, and Michigan.[78]

Native nations—the Cherokee and Seneca—held conventions and wrote constitutions.[79] John Brown held a convention that wrote a constitution.[80] Utopian societies and religious sects held conventions and wrote constitutions.[81] So did everyone from debtors in a debtors’ prison in New York to squatters in a mining camp in Wisconsin.[82] Beginning in 1829, in cities all over the country, hundreds of Black men regularly held conventions, known as “colored conventions,” from Maine to California, to plan for abolition, emancipation, and equal rights.[83] Between 1830 and 1861, Black delegates met in eleven national conventions, three regional conventions, and forty-five state conventions.[84] In 1848, women, mostly White women, held their first women’s rights conventions.[85] Seceding states held conventions and wrote constitutions when they entered the Confederacy, and then they held conventions and wrote new constitutions when they re-entered the Union.[86] The Civil War and Reconstruction alone—leaving the Union, rejoining the Union, complying with Reconstruction, defying Reconstruction—accounted for fifty constitutional conventions.[87]

In 1787, no one could have predicted that there would never again be a federal constitutional convention but that other kinds of conventions would be as regular as morning dew.[88] No one predicted it, but everyone noticed it. “America is, at the present day, the country in the world where laws last the shortest time,” Alexis de Tocqueville wrote in 1833 in Democracy in America, even before amendment fever reached its pitch.[89] “Almost all the American constitutions have been amended within the course of thirty years: [T]here is therefore not a single American State which has not modified the principles of its legislation in that lapse of time.”[90]

The amending hiatus between the Twelfth and Thirteenth Amendment was no hiatus at all but instead a contest between competing agents of constitutional revision. The Supreme Court asserted its exclusive right to interpret the Constitution; White men meeting in conventions asserted that it was they who wrote, amended, and interpreted constitutions; and, in dissenting conventions, Black people, women, and Native nations insisted that they possessed this authority, too. They rewrote the philosophy of amendment.

The convention, not the legislature, not the court, was the most important constitutional institution of the nineteenth century. “A Convention is the provided machinery of peaceful revolution,” argued the Pennsylvanian George Dallas, a former U.S. Senator, in 1836, in support of a call for a state convention.[91] The very act of assembling became the symbol—the visible enactment—of the sovereignty of the elusive, invented, and contested polity known as the People.[92] “We are the sovereignty of the State,” said a delegate to Illinois’s amending convention in 1847.[93] “We are what the people of the State would be, if they were congregated here in one mass-meeting. We are what Louis XIV said he was, ‘We are the State.’”[94]

Democracy drove amendment. “The first principle of our system,” Andrew Jackson insisted in 1829 in his first annual message to Congress, is that “the majority is to govern.”[95] In truth, this principle was scarcely honored: Americans did not elect their senators (U.S. Senators were elected by state legislatures), nor did they elect the president (who was elected by the Electoral College), nor did they elect Supreme Court Justices (these were and are nominated by the president and confirmed by the Senate), nor, at the start of the nineteenth century, did voters elect delegates to the Electoral College (these, too, were chosen by state legislatures). Much the same was true in the states, where legislatures, not voters, elected governors, and governors appointed judges, and, in any case, most states restricted voting to men who owned property.

Jackson called for a constitutional amendment. “I consider it one of the most urgent of my duties to bring to your attention the propriety of amending that part of the Constitution which relates to the election of President and Vice-President,” he said, and then backed the idea of amendment itself: “Our system of government was by its framers deemed an experiment, and they therefore consistently provided a mode of remedying its defects.”[96] Jackson proposed to abolish the Electoral College, to “remove all intermediate agency” between the will of the People and the election of the president and vice president.[97]

The first attempt to amend the Constitution to require Electors to be elected by districts within every state had come in 1806.[98] Amendments proposed to institute a direct popular vote were first introduced in 1825.[99] At the start of 1826, seventeen different measures to this end were introduced into Congress, so many that, by the start of March, a Maine Congressman introduced an amendment proposing that amendments could only be considered once every ten years, beginning with 1830, or else Congress would never get anything else done.[100]

Efforts to alter aristocratic arrangements at the federal level—which included not only amendments reforming or abolishing the Electoral College[101] but also reapportioning representation[102] and requiring mandatory retirement for Supreme Court justices[103]—all failed. Abolishing the Electoral College and electing the President by popular vote would have meant a loss of political power for both small states and slave states. It would also have rewarded states with the broadest electorate.

But while they failed at the federal level, nearly all efforts to end aristocratic provisions in state constitutions succeeded. In 1800, a majority of states had some form of a property requirement for voting.[104] By 1865, none did.[105] Between 1816 and 1821, six states entered the union—Indiana, Illinois, Mississippi, Alabama, Missouri, and Maine—and none had a property requirement,[106] a development that set a standard for new states and put pressure on old states to drop their existing requirements by way of constitutional amendment.[107] Between 1824 and 1828 alone, the electorate more than doubled, growing from four hundred thousand to 1.1 million.[108] At the start of the century, delegates to the Electoral College were elected by state legislatures in all but five states.[109] By 1832, voters themselves elected those delegates in all but one state.[110] In 1800, voters elected their own governors in only seven states.[111] By 1853, voters in all thirty-one states elected their own governors.[112] And by 1860, out of thirty-one states, eighteen mandated the election, rather than the appointment, of judges.[113]

Amendments to state constitutions also addressed legislative malapportionment. Early constitutions tended to grant favor—and fuller representation—to what had been then the most settled parts of states, generally in the East. As state populations grew and dispersed, those apportionment schemes needed to be updated.[114] In most states the only way to make that change or any other was to call a convention to amend the constitution, but only legislators—the very elected officials who benefitted from malapportionment—could make that call.[115] A slew of conventions, then, made a priority of amending their constitutions to make it easier to amend their constitutions.[116] As one delegate to a convention in North Carolina explained in 1835:

For 30 or 40 years, the West had been seeking a Convention, and the East had been opposing it. It was natural, that having had so much difficulty in succeeding, the West should provide an easier mode of calling Conventions in future, and that the East, from policy, should want to make it as difficult as possible.[117]

Making amendment easier meant different things in different states. In 1805, the Pennsylvania legislature dismissed calls for a convention, arbitrarily deeming the number of petitions submitted asking for one to be inadequate. The legislature drew the same conclusion in 1821.[118] (The legislature only relented in 1837.[119]) Rhode Islanders, who didn’t have a constitution—the state operated under its colonial charter—started campaigning for a convention in 1792; they didn’t get one until 1824 and then it proved unable to get anything done.[120] In a state where only two in five White men were eligible to vote, the disenfranchised held an extralegal People’s Convention in 1841 and wrote their own constitution, during a crisis known as the Dorr Rebellion, after which the state finally held a convention, and then, for a while, Rhode Island had two dueling constitutions, and martial law, until a third convention led to the ratification of yet another constitution in 1842, granting the right to vote to any male resident of the state who could pay a dollar in poll tax.[121]

Conventions also altered the mode of ratification. Before 1829, popular ratification of constitutions was uncommon.[122] In 1857, after Minnesota entered the Union, Congress required that new states put their constitutions to a popular vote.[123] These battles were hard fought. John Randolph was among the elder statesmen who served as delegates to Virginia’s constitutional convention in 1829. Randolph, complaining about all this “hammering at fundamental law,” opposed every change to Virginia’s constitution, especially a new and easier procedure for amendment.[124] “Sir, I am against any such provision,” Randolph explained, “I should as soon think of introducing into a marriage contract a provision for divorce.”[125]

Reformers wanted to eliminate consecutive-session requirements for calling conventions, but they especially wanted to eliminate supermajority requirements.[126] “It is anti-republican—it is anti-democratic,” said a delegate at a Pennsylvania’s 1837 convention.[127] Some reformers wanted to wrest the power to propose amendments from the legislature altogether and simply put the question of calling an amending convention to a popular vote at regular intervals.[128] One delegate asked at a Maine convention in 1819,

Suppose, Sir, your Legislature should be made up of men, that from year to year, and for ten years, should deem it unnecessary to revise the constitution, and if for ten, why not for twenty, or even for a hundred years. Suppose this should be the case, when is your constitution to undergo a revision?[129]

Fourteen states eventually adopted these periodic revision mechanisms.[130] New York’s 1846 constitution, for example, decreed that voters be asked every twenty years, “Shall there be a convention to revise the constitution and amend the same?”[131]

By 1850, over half of all state constitutions included some form or another of a statement—borrowed, adapted, and customized—that “the people . . . have the inherent, sole, and exclusive right . . . of altering and abolishing their constitution and form of government whenever it may be necessary to their safety and happiness.”[132] A commitment to amendment deepened. Many men meeting in many meetings made very many changes to their state constitutions, including making amending easier because they believed that more and quicker amending would be needed in the future. Conventions in both New York (1846) and Indiana (1851) formed Future Amendments Committees.[133] In Virginia, John Randolph mocked fellow delegates’ “very great anxiety to provide for futurity.”[134] This commitment echoed Jefferson’s view that constitutions ought to be revised every nineteen years, once every generation.[135] “We are engaged in the creation of a government which is not only for ourselves but which we proudly say is to be handed down to our posterity to be a rule of action for them,” an Ohio delegate said in 1850.[136]

Yet posterity have no hand in making this government. They are not parties to the compact. They give no assent to its provisions. Is it not justice then to declare that when we deliver it into their hands, they shall have the privilege to say whether or not they will be bound by it?[137]

Or, as a delegate in Louisiana in 1845 put it, “We are constantly improving in the science of government, as in all else, and we ought not to tie either our own hands or the hands of those who are to come after us.”[138]

In the industrializing nineteenth century, amendment came to mean something new: keeping pace with technological change. “We live in an age of progress,” William Steele said at Indiana’s amending convention in 1850.[139] “The very purpose for which we were sent here was to make improvements in our system of government.”[140] In decades that saw the development of the telegraph, the canal system, the railroad, and the power loom and the factory, those who argued that constitutions ought to be easier to amend often invoked a new set of ideas about machines. To those who might object to constitutional change, the pace of technological change was offered as evidence. Isaac Preston said at Louisiana’s convention in 1845,

Let them look at the progress that has been made in the arts and sciences, in mechanics, in agriculture, in morality, and then say if they have reason to expect that those who may survive for that period, or those who are now pursuing their onward course, are likely to retrograde from what we are now. Those who are to come after us, advancing, as the world is, in morality, in peace and tranquility, and in the repudiation of vices which have been too common in our day, will certainly know better how to govern themselves than we can.[141]

Making provisions to put the question to voters on a regular schedule was itself dictated by the pace of technological change. To a delegate at Michigan’s 1850 convention, ten years between votes on conventions seemed too long, given the speed of progress. “For within the last ten years, such has been the rapid improvement in the mechanical arts, the scientific professions, the electric telegraph, together with California coming into the Union, etc., that in my opinion, this period would be best.”[142] One delegate to a convention in Missouri suggested that the state’s constitution ought to be rewritten every fourteen years, pointing out that every seven years the cells in the human body—“every bone, muscle, tissue, fibre, and nerve matter”—are replaced and surely, in twice that time, every constitution ought to be revised, too.[143]

And there was, too, if less frequently stated in constitutional conventions, another kind of progress to plan for and to constitutionalize: moral reform. This was the view of Elisha P. Hurlbut in his 1845 Essays on Human Rights and Their Political Guarantees. “[W]henever the majority of the people rise up and demand a reformed Constitution, it is their right to have it—and they will have it,” Hurlbut wrote.[144] In the act of convening the people to deliberate on fundamental law, he saw the prospect of moral improvement, of “great progress in the cause of human rights and liberty.”[145] The work of revising a constitution, he insisted, “is a work of reform in the errors of the past, based upon a broader and more enlightened experience.”[146] He subscribed to the theory of a convention as a peaceful revolution, capable of implementing a series of reforms “so broad and comprehensive, so enlightened and liberal, so pure and just, as to amount to a revolution—a great and peaceful moral revolution.”[147]

Revolution came. But it wasn’t peaceful, and it wasn’t the revolution in human rights that Hurlbut predicted.

III. The Word White

“The many State constitutions of recent date do not show a general progressive improvement,” wrote the Columbia constitutional law professor Francis Lieber in 1864, looking back over the previous six decades.[148] The most significant amendment to state constitutions between 1803 and 1865 was the introduction of the word “white” into constitutional texts, amendments in defiance of the philosophy of amendment and its commitment to the idea of moral progress.

Connecticut, in its 1818 constitution, restricted voting to “[e]very [W]hite male citizen.”[149] In 1819, following the instructions in its 1818 constitution, the Illinois legislature restricted the movement and abolished the rights of free Black people to vote, serve on juries, or own property.[150] After the Missouri Compromise allowed Missouri to enter the union, delegates to a convention in St. Louis in 1820 devised a constitution that not only allowed slavery but also restricted suffrage to “[e]very free [W]hite male citizen” and decreed that the legislature “shall have no power to pass laws for the emancipation of slaves, without the consent of their owners, or without paying their owners” but “shall have full power, and it shall be their duty to pass such laws, as may be necessary to prevent free negroes and mulattoes, from coming to and settling in this state, under any pretext whatever.”[151]

If amendment means improvement, and if the first principle of the United States is that the majority is to govern, critics objected, how could amendment possibly be used to restrict suffrage? When Missouri’s constitution went to Congress for approval, northerners argued that its prohibition on Black immigration was unconstitutional because free Blacks, as citizens of the United States, were protected under the Constitution’s Privileges and Immunities Clause. “Color no more comes into consideration to decide who is a citizen than size or profession,” declared a New Hampshire senator.[152] “You may as well say a tall citizen shall not settle in Missouri, as a yellow citizen shall not.”[153] But South Carolina Representative Charles Pinckney dismissed those who objected to Missouri’s constitution as suffering from “a total want of knowledge of the distinction which has, from time immemorial, existed in the civilized world, between the [B]lack and [W]hite race.”[154] In the end, Congress accepted the state’s constitution, with the proviso that no part of it could be construed to violate the Privileges and Immunities Clause.[155]

These same questions were raised in convention after convention. No issue was more fiercely debated. In 1821, keen to extend suffrage, New Yorkers—an electorate that at the time included Black men—voted for a constitutional convention by a margin of three to one.[156] “[T]he colored people of the city of New-York” submitted a petition asking “that the convention would incorporate a provision in the constitution preventing the legislature from passing any laws interfering with their rights” or their ability “to exercise the right of suffrage.”[157] (The petition was later lost in a fire.)[158] If that petition were to be granted, one delegate warned, it would “soon be followed up by a demand to be represented in this hall by their own colour.”[159] Peter Jay, John Jay’s son, insisted that he had no intention of voting to restrict suffrage in a convention called to extend it. “I do not believe your constituents have authorized you to disenfranchise them,” he scolded his fellow delegates, “and these [B]lacks are your constituents as well as men of fairer complexions.”[160] The momentousness of their decision was not lost on the delegates, who admitted that this was the question, of all debated, “most interesting to the public.”[161] Robert Clarke noted that neither the state’s original constitution nor the U.S. Constitution included the word “white” and asked his fellow delegates who wished to add it: “Is this just? Is it honest? Was it expected by our constituents? Will it not fix a foul stain upon the proceedings of this Convention which time will not efface”?[162]

Another delegate, supporting disenfranchisement, insisted that it belonged in the constitution because the sentiment of the day was that Black men lacked the prudence to cast a ballot and if, one day, “that sentiment should alter,” future New Yorkers could amend the constitution again.[163] Following this line of argument, he suggested, by way of ridicule, New Yorkers would go so far as to “admit negresses as well as negroes to participate in the right of suffrage.”[164]

And so it went. “Mr. JAY moved that the word white be stricken out.”[165] This motion passed narrowly, 63–59.[166] But days later another delegate moved to put the word back in.[167] In the end, the convention voted in favor of the restriction, dropping property requirements for White men but decreeing that “no man of colour” could vote unless he owned an estate worth at least $250. Overnight, some thirty thousand Black men lost the right to vote.[168]

Disenfranchising Black men meant depriving them not only of the right to choose their rulers but also to amend their constitutions. Black abolitionists divided on the question of whether the U.S. Constitution sanctioned slavery—if it did, it could only be ended by federal amendment, which they rightly perceived as politically impossible—but, to them, amendment to state constitutions depriving Black men of the rights of citizenship plainly violated the Constitution. “[L]et us contend for all the rights guaranteed to us by the constitution of our native country,” the editor of the New York’s new Black newspaper, Rights of All, insisted in 1829.[169] New York’s convention, he argued, had acted illegally in restricting suffrage to Whites, as much as it would have if it had required that all voters be six feet tall.[170] It was opposition not only to slavery but also to disenfranchisement and to Black codes that led free Blacks to call their own conventions, beginning in 1830.

Over four days in September of that year, twenty-six Black delegates from seven states held the first Free People of Color convention at the A.M.E. Bethel Church in Philadelphia. Richard Allen, Bethel’s minister, called for a General Convention to be held in his church in June of 1831.[171] They set as their objective the overturning of “the many oppressive, unjust and unconstitutional laws, which have been enacted in different parts of the Union, against the free people of colour.”[172]

Black conventions, de facto constitutional conventions, met in response to state constitutional conventions. New York and Pennsylvania became the first states to hold state-wide Black conventions, fighting disenfranchisement at the hands of their states’ constitutional conventions.[173] In Black newspapers, editors printed excerpts from the proceedings of state constitutional conventions—like New York’s 1821 debate about the word “white”—and presented historical arguments about Black citizenship.[174] “If a majority of the colored people in Pennsylvania desire the right to vote, they must show it in some way,” one Pennsylvanian wrote.[175]

People who could not vote but who wished to amend constitutions could exercise not only their right to assembly—they could hold conventions—but also their right to petition. The American Antislavery Society began a petition drive in 1834, sending tens of thousands of petitions to Congress calling for a constitutional amendment to abolish slavery. At the same time, they petitioned against suffrage restrictions in state constitutional amendments. In 1837, “Forty Thousand Citizens, Threatened with Disenfranchisement” submitted a petition to Pennsylvania’s amending convention, pleading delegates not to add the word “white” to the suffrage requirements in the state’s constitution.[176]

Black and female petitions to state constitutional conventions were uniformly denied or, more often, ignored. Many were probably not entered into the record, and it is likely that many more existed than have been found by scholars.[177] In 1836, Congress elected to formally dismiss antislavery petitions, implementing a gag rule under which any petition on the subject of slavery was automatically tabled without being read.[178] In any case, for abolitionists, constitutional amendments presented problems. To propose an amendment to the Constitution to end slavery implied that the Constitution sanctioned slavery, and that this sanction needed to be lifted. By the mid-1840s, many abolitionists preferred to argue that the Constitution simply did not sanction slavery and that, therefore, no amendment was necessary to end it. Slavery was already unconstitutional, just like Black codes. In 1843, Samuel H. Davis, born free in Maine in 1810 and educated at Oberlin College, addressed fifty-seven delegates from seven states at the National Convention of Colored Citizens in Buffalo and argued that Black codes violated the U.S. Constitution, with its guarantee of “freedom and equal rights to every citizen.”[179] The question was how to overturn them. “What [shall we do]?” Davis asked. “Shall we petition for our rights? . . . We have petitioned again and again, and what has been the result? Our humblest prayers have not been permitted a hearing.”[180] If not petitioning, then what? “Shall we then look to the abolitionists and wait for them to give us our rights? . . . I fear it will never be done.”[181] Davis insisted the Constitution guaranteed rights that were there for the seizing. “We, ourselves, must be willing to contend for the rich boon of freedom and equal rights.”[182] He suggested not constitutional amendment but insurrection, a plea made still more passionately, regarding ending slavery, by twenty-seven-year-old Henry Highland Garnet, who rose to deliver “An Address to the Slaves of the United States.” His advice: “Brethren, arise, arise!” Garnet urged, as his audience fell to tears. “Remember that you are FOUR MILLIONS!”[183]

Few Black politicians were more adept at waging these campaigns than John Jones, a Black tailor from Chicago. Early in 1847, when Illinois considered holding a convention to revise the state’s constitution, Jones wrote a petition asking the state legislature to “repeal all laws making a distinction among people on account of color.”[184] In response, the Senate Judiciary Committee in March 1847 issued a unanimous report denying the petition, telling the Black Illinoisian that “if he is not content with the provisions of our laws, Africa, the land of his birth, a climate congenial with his nature, lies open before him, where he may use his powers of self-government”—go back to Africa, in short—and pledging that under the terms of the state’s constitution, “[the African] is excluded, and ever will be in this State, from the elective franchise.”[185]

Jones next published a series of essays in which he attempted to influence the convention’s proposed amendments. He based his argument on his reading of American constitutional history as a story of progress. “We maintain that our claims to the rights of citizenship are founded on an original agreement of the contracting parties, and there is nothing to show that color is a bar to the agreement,” he insisted.[186] Yes, slavery existed in 1787, but “the darkness of the 18th century has gone by, and we live in the 19th, and in a Republic, too, wherein men understand the principles of government, and a man is regarded as a man whether his face be [B]lack or [W]hite.”[187] The framers of 1776 Articles of Confederation, the 1787 U.S. Constitution, and the 1818 Illinois Constitution had not used the word “white,” he pointed out, so why should delegates to this new state convention? Jones disputed both the delegates’ authority and their definition of the People. He called the amendments the Illinois convention proposed “anti-republican and even unconstitutional.”[188] Jones wrote, “[L]et us examine the word white,” begging the convention to expunge it.[189]

When the convention began, a motion to delete the word “white” from the requirements for suffrage was resoundingly defeated, 137 to 8; a motion to prohibit the legislature from ever extending the right to vote “to negroes or mulattoes of African blood” passed 60 to 51.[190] The state’s amended constitution, submitted to the public at the next election, was ratified 60,585 to 15,903.[191] Jones then published an essay denouncing the amended Illinois Constitution as being “at war with the Constitution.”[192] Later that year, he was elected one of Illinois’s two delegates to the Colored National Convention, to be held in Cleveland.[193]

Jones’s wife, Mary Jane Richardson, who “was at his side in his every endeavor and accomplishment,” as their granddaughter later wrote, may have travelled with him to convention meetings, attended, and even spoken, but her name never appears in any convention proceedings. Nevertheless, in Chicago, “[s]he it was who stood guard at the door when these pioneer abolitionists were in conference.”[194]

Before the Cleveland convention met, three hundred people gathered for the first Woman’s Rights Convention at Wesleyan Chapel in Seneca Falls, New York, and resolved that “it is the duty of women of this country to secure themselves their sacred right to the elective franchise.”[195] Like Black conventions, the Seneca Falls convention issued a Declaration of Sentiments: “We hold these truths to be self-evident: that all men and women are created equal.”[196]

Weeks later, Frederick Douglass, who had attended the Seneca convention, arrived in Cleveland for the national Black convention, where he was appointed the convention’s president and Jones its vice president. With the U.S. presidential election only two months away, Jones urged his fellow abolitionists to abandon moral suasion in favor of party politics. Jones drafted a preamble to a resolution endorsing the newly formed third party, the Free Soil Party.[197] The Cleveland convention also marked another turning point: A woman whose name was recorded only as “Mrs. Sanford” became the first woman to speak at a Black convention. “We ask for the Elective Franchise,” she said, on behalf of Black women.[198] Some delegates insisted that a proposed resolution in favor of women’s rights wasn’t necessary since they had already passed resolutions in favor of “colored persons . . . and they considered women persons.”[199] Douglass then proposed amending a resolution to make clear that “the word persons . . . be understood to include woman.” [200] This motion passed.[201]

Year by year, in state after state, delegates lifted property requirements and imposed racial ones. By 1850, Black men could vote without restriction in only four states—Maine, Massachusetts, Vermont, and Rhode Island.[202] What could they do but petition, convene, and call for constitutional amendment? Meanwhile, Congress nearly came to blows—guns were drawn on the House floor—over the question of extending slavery to territories acquired in 1848, the so-called Mexican Cession. In 1849, delegates from Southern states met in a convention in Mississippi to denounce the Wilmot Proviso, which would have banned slavery in the territories of the Mexican Cession.[203] In June of 1850, with the question still unresolved, 167 delegates from nine slave states, including Jefferson Davis from Mississippi, met in a convention in Nashville to affirm the constitutionality of slavery and consider seceding from the union.[204] The threat they posed led Congress to reach the Compromise of 1850.

“The fugitive slave law was passed on a Saturday night,” Mary Jane Jones later recalled, about hearing the news in Chicago, “and on Sunday . . . the friends of freedom chartered cars enough to send every fugitive slave from here and around the country, out of this country and into Canada.”[205] John Jones renewed his campaign against Illinois’s Black Codes, writing and circulating a petition calling for “the immediate and total repeal of all laws now existing upon the statute books of this State, whereby discriminations are made among the people on account of complexion.”[206] The call for another national Black convention described the Fugitive Slave Act as “the most cruel, unconstitutional and scandalous outrage of modern times.”[207] One hundred and forty delegates met in Frederick Douglass’s hometown of Rochester, New York, in July 1853. Douglass and John Jones were elected vice presidents. “[W]ithin the meaning of the United States Constitution,” Douglass wrote in a statement, “we are American citizens.”[208] The Supreme Court would soon decide this was its decision to make.

In 1854, Congress passed the Kansas-Nebraska Act, crafted by a U.S. Senator from Illinois, Stephen Douglas, repealing the Missouri Compromise and allowing new states formed out of the “Nebraska territory” to decide for themselves whether they would allow or prohibit slavery. Frederick Douglass then went to Illinois in hopes of debating Stephen Douglas. The Senator declined the invitation. Instead, while staying with Mary Jane and John Jones, Frederick Douglass addressed an audience in Chicago’s Metropolitan Hall. The U.S. Constitution, he declared, “knows no man by the color of his skin.” He offered a brief history: “The word white is a modern term in the legislation of this country. It was never used in the better days of the Republic, but has sprung up within the period of our national degeneracy.”[209] Not amendment: degeneration.

Jones and Douglass made their case. But the word “white” entered the legal lexicon. The first American legal dictionary, published in 1839, defined a citizen as “[o]ne who, under the constitution and laws of the United States, has a right to vote for representatives of congress and other public officers, and who is qualified to fill offices.”[210] By 1854, that dictionary included an entry explaining that “[a]ll [N]atives are not citizens of the United States; the descendants of the aborigines, and those of African origin, are not entitled to the rights of citizens . . . . [N]o one is a citizen who is not [W]hite.”[211]

The U.S. Supreme Court ruled on this question in 1857 in Dred Scott v. Sandford, when Chief Justice Roger Taney held that the framers of the 1787 Constitution believed that people of African descent were not intended to be included under the word “citizens” in the Constitution and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.[212] Taney’s opinion also struck down every constitutional claim made in every Black convention held in the United States since 1830. Douglass dismissed “this edict of Taney” as constitutional nonsense, “a most scandalous and devilish perversion of the Constitution, and a brazen mis[s]tatement of the facts of history.”[213] At a Black state convention in Troy, New York, in 1858, delegates adopted resolutions calling the decision “a foul and infamous lie,” denying that the Court had the authority to issue the ruling, and declaring, “[W]e are citizens of the State of New York, and, consequently, of the United States.”[214]

Amendment having proven to be of no avail, insurrection began. John Brown began planning an attack on the U.S. arsenal at Harpers Ferry, Virginia. He stopped in Chicago. “The first time I ever met John Brown he came to our house one afternoon with Fred Douglas[s],” Mary Jones later said. [215] “I did not think he was right,” she told her husband, and “I did not believe he could ever do what he wanted to do.”[216] Brown, gathering his followers in Canada in 1858, held his own constitutional convention, drafting an amended constitution:

[W]e, citizens of the United States, and the oppressed people who, by a recent decision of the Supreme Court, are declared to have no rights which the [W]hite man is bound to respect, together with all other people degraded by the laws thereof, do, for the time being, ordain and establish for ourselves the following Provisional Constitu­tion and Ordinances, the better to protect our persons, property, lives, and liberties, and to govern our actions.[217]

Brown and five Black men who participated in the raid at Harpers Ferry were hanged in Virginia in December 1859. Lincoln was elected the following fall. In January 1860, slave states began holding conventions, not to alter their constitutions but to abolish them.[218] Early in 1861, hoping to hold the Union together, Congress passed the first constitutional amendment it had passed in nearly six decades. It not only didn’t end slavery; it protected it by prohibiting any amendment from abolishing it: “No amendment shall be made to the Constitution which will authorize or give to Congress the power to abolish or interfere, within any State, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said State.”[219] Had it been ratified, it would have become the Thirteenth Amendment.[220]

Instead, Southern states held constitutional conventions, seceded from the Union, and ratified their own constitution, and civil war broke out. Meanwhile, Francis Lieber took a leave of absence from Columbia to work for the War Department in Washington. He wrote the Lieber Code, the basis for what later became the Geneva Convention.[221] He also published a series of lectures on the Constitution and a treatise on the philosophy of amendment, and he proposed seven amendments widely understood as influencing the drafting of the Thirteenth and Fourteenth Amendments.[222] Unlike the Framers, who wrote about the Constitution as a machine, Lieber described it as a creature, a living thing—a living, pregnant thing—whose “unplastic form is no longer able to contain the swelling lift within.” [223] The Constitution is alive, Lieber argued, “and the condition of life is change—change for the better or change for the worse. So long as life lasts so long is there change. Cessation of change is death.”[224]

Change came. On January 31, 1865, Frederick Douglass’s nineteen-year-old son, Charles Redmond Douglass, walked up the steps of the Capitol to watch Congress vote on a very different Thirteenth Amendment than the one proposed by Corwin: “Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction.”[225] The Senate had already passed the amendment, and the House had voted it down in June. But a handful of Northern Democrats who had opposed the measure were expected to switch their votes. Congress had never been more crowded or more expectant.

Roll was called as the clock tolled three. With every “aye,” the crowd roared. Eleven Congressmen switched their earlier “nays,” and the Thirteenth Amendment passed 119 to 56. From the galleries, and from the House floor, too, people screamed and wept; they shouted and embraced. “The tumult of joy that broke out was vast,” one newspaper reported. “[T]hundering, and uncontrollable.”[226] Men threw their hats; women their handkerchiefs. “[S]uch rejoicing I never before witnessed, cannons firing, people hugging and shaking hands,” the younger Douglass wrote to his father, “([W]hite people I mean).” In its jubilation, the crowd spilled out from the Capitol to the streets, roaring, singing, exulting, and waving flags. “I tell you things are progressing finely,” Charles Douglass wrote his father, “if they will only give us the elective franchize [sic] and shoulder straps”—that is, officers’ epaulets—“that will be all I ask[. E]very thing else which is right will surely follow these two rights.”[227]

“The one question of the age is settled,” a California member of Congress wrote to his wife, about the moment the clerk called the vote.[228] “Glory enough for one session, yes, even for a life.”[229] Another wrote home, “[W]e can now look other nations in the face without shame.”[230] The next morning, the New York Tribune ran the front-page story with a five-line headline:

FREEDOM TRIUMPHANT.

Commencement of a New Era.

DEATH OF SLAVERY

The Constitutional Amendment Adopted.

Grandest Act Since the Declaration of Independence.[231]

The Thirteenth Amendment ended slavery. It extended the power of the federal government. And it established, too, that constitutional amendment could be used as a tool of social reform. Quick on its heels, the Fourteenth and Fifteenth Amendments, ratified in 1868 and 1870, guaranteed equal protection of the laws, due process, birthright citizenship, and, for Black men, the right to vote. “Fellow citizens,” Frederick Douglass said in a speech in Cincinnati, celebrating the ratification of the Fifteenth Amendment, “I appear before you [tonight] for the first time in the more elevated position of an American citizen.”[232] This is what amendment looks like: mending and making amends. It did not last.

IV. The Future of Amendment

Like the constitutional arguments made by John Jones, most pleas for amending the U.S. Constitution, both formal and informal, were and are ignored, derailed, and forgotten. Since 1789, some twelve thousand amendments have been introduced on the floor of Congress. Americans have submitted more than eight thousand petitions to Congress relating to constitutional amendments and have proposed thousands more in the pages of newspapers, in pamphlets, from pulpits, and at political rallies. Of these tens of thousands of proposed amendments, only thirty-three have gone to the states for ratification and only twenty-seven have ever been ratified. The U.S. Constitution may have one of the lowest amendment rates in the world, but that’s not because Americans are opposed to amending constitutions.[233] Since 1789, more than twelve thousand amendments have been proposed to state constitutions; some seventy-five hundred—nearly two out of three—have been ratified.[234] The states have held more than two hundred constitutional conventions. The United States has not had a federal constitutional convention since 1787, although a movement to hold one, driven by the failure of the Balanced Budget Amendment in the 1980s, remains underway.[235] Eventually, the idea of a convention became untenable, even in the states. By the 1970s, in the age of political polarization, the states lost their appetite for conventions altogether: As of 2024, no U.S. state has held a constitutional convention since 1986.[236]

“Nothing new can be put into the Constitution except through the amendatory process,” Justice Felix Frankfurter declared in 1956, and “[n]othing old can be taken out without the same process.”[237] That’s simply not true.[238] Reorienting constitutional history by placing constitutional amendment at the center of analysis is a meaningful intervention, but of course constitutional change is happening all the time, and it happens in many ways—in the states and through statutes.[239] And, especially since the middle of the twentieth century, beginning with the Warren Court, constitutional change has happened at the hands of the Supreme Court. Civil rights strategists understood that the disenfranchisement of Black voters under Jim Crow made amendment impossible. “We cannot wait for amendments while 3,000,000 Negros are denied the right to vote,” John P. Davis, Executive Secretary of National Negro Congress, told Congress in 1937.[240] Congress proving unwilling to pass civil rights legislation, civil rights organizations sought, instead, the remedy of judicial interpretation. In 1954, in Brown v. Board of Education, they demanded that the Court honor the promise of the Fourteenth Amendment.[241] Reproductive rights activists achieved change with a similar strategy, beginning in 1965 with Griswold v. Connecticut.[242]

Liberals’ last real push for a constitutional amendment came with the Equal Rights Amendment. In 1971, the constitutional scholar Pauli Murray delivered a statement to the Senate Judiciary Committee arguing for the Equal Rights Amendment (ERA). Murray told the story of her grandmother, “born in slavery, the progeny of rape by a [W]hite master,” and of her own life.[243] “[T]he road over which I have travelled is the experience of most Negro women in America,” she said.[244] “Born in genteel poverty, I have shared the experience of domestic workers, service workers, lower paid clerical workers.”[245] Tracing the history of everything from sexual violence to employment discrimination, she told the committee that the Black woman “stands almost alone and must appeal to the fundamental law of the land to give her a footing upon which to build some semblance of stability for herself and for her children.”[246] Black women, she told the Senate Judiciary Committee, have, as a group, “the most to gain from the adoption of the [Equal Rights Amendment].” Murray argued for the ERA as essential to the future of a liberal constitutional democracy: “The adoption of the Equal Rights Amendment and its ratification by the several States could well usher in an unprecedented Golden Age of human relations in our national life.”[247] The ERA would not have ushered in a golden age, but it would have comprehended women within the nation’s code of liberty. Passed by Congress in 1972, it was never ratified. Its failure rent the Constitution like a gash torn in an old and frayed garment, never mended. With the derailment of the ERA, the Constitution became, effectively, unamendable. The only amendment ratified since, the Twenty-Seventh, regarding congressional pay, was first proposed in 1789.[248]

A striking feature of the history of federal constitutional amendment in the United States is that the Constitution became effectively unamendable at the very same time that conservative legal scholars devised the jurisprudence of originalism. In 1971, the year Murray delivered that statement to the Senate Judiciary Committee, Yale Law School’s Robert Bork, animated by his objection to the judicial activism of the Warren Court and especially its decision in Griswold v. Connecticut, wrote a law review article that advanced a set of ideas that became known as originalism.[249] Originalism first captured the public attention in 1987 when the Senate rejected Ronald Reagan’s nomination of Bork to the Supreme Court. Yet though Bork was rejected, his judicial philosophy prevailed. By 2020, originalists dominated the Court. Two decisions issued by the Supreme Court in 2022 illustrate the nature and reach of originalism. In New York State Rifle & Pistol Association, Inc. v. Bruen, the Court struck down as unconstitutional a New York gun control law from 1911 because the phrase “the right to bear arms” appears in the Second Amendment, which was ratified in 1791.[250] In Dobbs v. Jackson Women’s Health Organization, the Court overturned Roe v. Wade and upheld a 2018 Mississippi law that banned most abortions on the grounds that abortion is not mentioned in the Constitution. The Court argued that no right to abortion can be found in any reading of any of its amendments, nor can such a right be said to be “deeply rooted in this Nation’s history and tradition.”[251]

The historical methods deployed by originalists defy the historical methods employed in this Essay. To use a history of tyranny, oppression, and discrimination to justify the unequal protection of the law is a perversion of logic and a betrayal of justice and of constitutionalism itself. Originalism and the history-and-tradition test masquerade as history; they bear no relationship to the methods of inquiry used by historians. The historical record that judges consult is both impoverished and asymmetrical. It is also antidemocratic. Among originalism’s many deformities, it disadvantages people, people like John and Mary Jane Richardson Jones, people who were disenfranchised or poorly enfranchised at the time the Constitution was written, people who could not participate in ratifying conventions or serve in Congress or state legislatures or cast a vote for any of the men who did hold those offices.

Originalism relies on the narrowest possible reading of the historical record. Widening the aperture of constitutional history by looking to the philosophy and history of amendment can serve as an answer to originalism. The idea and practice of amendment call attention to the relationship between the past and the present, improvement and decay. Poised in tension with the philosophy of originalism, the philosophy of amendment also raises a series of questions about constitutionalism itself. How long should a constitution last? How long will constitutionalism last? Can an eighteenth-century constitution govern a twenty-first century multi-ethnic democracy? American constitutionalism is less exceptional than many have supposed; it submits to general rules.[252] As a constitution ages, it becomes more difficult to amend because people tend to venerate old constitutions—“that veneration which time bestows on everything,” as James Madison put it—and also because, as populations grow and become more diverse, the political obstacles to amending a constitution increase.[253] (Consider, in the United States, the hurdle posed by polarization.) Scholars who study the world’s written constitutions have argued that outdated constitutions undermine democratic governance.[254] Around the world, written constitutions lie in various states of stagnation, decay, misuse, and non-use—legislators abuse them; autocrats ignore them.[255] And when they become unamendable, as in the United States, the risk of insurrection rises.

There are other risks, too. The eighteenth-century Constitution is an artifact of a chain-of-being understanding about humans and the natural world, as if we are the sun around which all other living things revolve in a solar system, like so many planets and stars and moons. Topping the list of consequences of the Constitution’s unamendability is the inability of the federal government to address the growing inhabitability of much of the country and of the planet due to the catastrophes resulting from habitat loss, species extinction, and climate change. Most federal measures in place to protect the environment, regulate pollution, and halt climate change date to the 1960s and early 1970s: the Clean Air Act (1963), the Clean Water Act (1970), the Environmental Policy Act (1970). The first proposal to address environmental degradation by way of a constitutional amendment came in 1970, when Wisconsin Senator Gaylord Nelson, who also founded Earth Day, proposed an amendment to read, “Every person has the inalienable right to a decent environment. The United States and every State shall guarantee this right.”[256] By the time anyone seriously considered that amendment, Article V had become effectively inoperable.

There are plenty of explanations for why Article V no longer works, none of them fully satisfying. Surely, rising polarization and a conservative counterinsurgency have contributed to the difficulty of amending the Constitution. So has liberals’ long habit of seeking constitutional change through the courts. Either way, the brokenness of Article V risks the environmental collapse of much of the United States and of the world. The majority of the world’s nations have written or amended their constitutions in the last quarter century, during what has been termed an “environmental rights revolution.”[257] The natural world, long defined outside the realm of the political, as once were all women and many men, is now increasingly included within it.[258] Out of 196 constitutions in the world, 148 make some provision for what is called “environmental constitutionalism.”[259] Most are mere gestures; they haven’t stopped the world from burning. Still, in the absence of any language in the U.S. Constitution regarding the environment, all other federal measures are vulnerable. Between 2017 and 2021, the Trump Administration pulled the United States out of the Paris Climate Accord, defanged the Environmental Protection Agency, and rolled back more than one hundred federal environmental provisions.[260]

The unamendability and under-development of the U.S. Constitution are by no means the only deformities in American politics. That list includes congressional gridlock, executive overreach, partisan gerrymandering, the capture of the parties by extremists, the filibuster, malapportionment, the endlessness of campaigning and of campaign fundraising, the unchecked influence of corporations, and a diminished commitment to democracy. But it’s hard to see how any change to fundamental law about the relationship between humans and the natural world can happen without a rekindling of the philosophy of amendment.

No constitution can be kept forever, like a butterfly, under glass, tacked down with pins. To constitute is to become or establish; to amend is to mend, correct, repair, and improve. A constitution that can longer be amended is no longer legitimate. It would be far better to learn, again, how to amend, or else to invent some new instrument to frame governments and guarantee rights in the twenty-first century. That future begins, as ever, with the past, with stones and seashells, with sheepskin and goose feathers, with old books and oak trees.

Copyright © 2024 Jill Lepore, Kemper Professor of American History and Professor of Law at Harvard University. Jorde Symposium Lecture, 2023–2024, delivered at the University of California, Berkeley, School of Law on October 3, 2023 and at the University of Chicago Law School on February 15, 2024. Heartfelt thanks to Kenneth Alyass, Mia Hazra, Imaan Mirza, Tobias Resch, Steven Rome, Jonathan Schneiderman, and Fawwaz Shoukfeh at the Amendments Project and to Zachary Elkins, Tom Ginsburg, and Jessie Baugher at the Comparative Constitutions Project. Thanks to John Kowal at the Brennan Center and thanks as well for comments from Alison LaCroix, Sanford Levinson, David Pozen, and Julie Suk. A portion of this Essay was also presented at a workshop sponsored by the Harvard College of Historical Scientific Instruments on November 3, 2023. Funding for portions of this research was provided by the National Endowment for the Humanities, the Harvard Data Science Initiative, and the Harvard Inequality in America Initiative.

           [1].     James Madison, Federalist No. 14: Objections to the Proposed Constitution from Extent of Territory Answered, N.Y. Packet, November 30, 1787.

           [2].     Id.

           [3].     Rufus King’s Notes of the Constitutional Convention of 1787, in 1 Life and Correspondence of Rufus King 596 (Charles R. King ed., 1894).

           [4].     Alexander Hamilton, Federalist No. 9: The Utility of the Union as a Safeguard Against Domestic Faction and Insurrection, Indep. J., November 21, 1787.

           [5].     Id.

           [6].     Tony Buick, Orrery: A Story of Mechanical Solar Systems, Clocks, and English Nobility 1, 97–147 (2014).

           [7].     See George Washington, Diary Entry, Oct. 29, 1789, in 5 The Diaries of George Washington 481 (Donald Jackson & Dorothy Twohig eds., 1979), https://www.loc.gov/resource/mgwd.wd05 [https://perma.cc/SC4Q-GFK7]; see also Silvio A. Bedini, Thinkers and Tinkers: Early American Men of Science 384–85 (1975).

           [8].     See Massachusetts Gazette, Apr. 24, 1787; see also Joseph Pope, Mr. Joseph Pope’s Description of an Orrery of his Construction, in 2 Memoirs of the American Academy of Arts and Sciences 43–45 (1804).

           [9].     To the Public, Columbian Centinel, Sep. 6, 1794.

         [10].     James Wilson, Address Delivered in Philadelphia to Celebrate the Adoption of the Constitution of the United States, Nat’l Ctr. for Const. Stud., (July 4, 1788), https://nccs.net/blogs/articles/james-wilson-speech-july-4-1788 [https://perma.cc/WW9R-5ERC].

         [11].     Id.

         [12].     The author identified and photographed the chipped teeth during an inspection of the orrery when it was disassembled in 2023 for the purpose of an academic conference. See Creating an Ordered World in Disordered Times: The Pope Orrery (Nov. 2–3, 2023), Harvard Univ., https://chsi.harvard.edu/pope-orrery-workshop [https://perma.cc/7YH9-T5VW]. My thanks to Sara Schechner for permission to study and photograph the orrery.

         [13].     See David P. Wheatland, Pope Orrery, in The Apparatus of Science at Harvard, 1765-1800, 57–59 (1968). For an illustration of Pope’s orrery, see I. Bernard Cohen, Pope Orrery, in Some Early Tools of American Science 157 (1950).

         [14].     See, e.g., David S. Law & Mila Versteeg, The Declining Influence of the United States Constitution, 87(3) N.Y.U. L. Rev 762 (2012); Richard Albert, Constitutional Amendments: Making, Breaking, and Changing Constitutions (2019). But see Yaniv Roznai, Unconstitutional Constitutional Amendments: The Limits of Amendment Powers (2017).

         [15].     Hannah Ritchie, Deforestation and Forest Loss, Our World in Data (May 2024), https://ourworldindata.org/deforestation [https://perma.cc/4GNB-SPGM].

         [16].     Id.

         [17].     Rebecca Lindsey, Climate Change: Global Sea Level, NOAA Climate (Apr. 19, 2022), https://www.climate.gov/news-features/understanding-climate/climate-change-global-sea-level [https://perma.cc/RQ2H-6HRT].

         [18].     Hannah Ritchie, Lucas Rodés-Guirao, Edouard Mathieu, Marcel Gerber, Esteban Ortiz-Ospina, Joe Hasell & Max Roser, Population Growth, Our World in Data (2023), https://ourworldindata.org/population-growth [https://perma.cc/NCQ2-TDJT].

         [19].     Helen Briggs, Wildlife in ‘Catastrophic Decline’ Due to Human Destruction, Scientists Warn, BBC (Sep. 9, 2020), https://www.bbc.com/news/science-environment-54091048 [https://perma.cc/GWH7-8R2M].

         [20].     See Catrin Einhorn & Lauren Leatherby, Animals Are Running Out of Places to Live, N.Y. Times (Dec. 9, 2022), https://www.nytimes.com/interactive/2022/12/09/climate/biodiversity-habitat-loss-climate.html [https://perma.cc/2RHA-7425].

         [21].     See U.S. Env’t Prot. Agency, The Use of Soil Amendments for Remediation, Revitalization, and Reuse, at i (2007), https://www.epa.gov/sites/default/files/2015-08/documents/soil_amendments_542-r-07-013.pdf [https://perma.cc/7HAT-ULJ4].

         [22].     Charles Pierce, A Meteorological Account of the Weather in Philadelphia from January 1, 1790 to January 1, 1847, at 264 (1847).

         [23].     Sophia Schmidt, Historically Warm Temps and Record Low Snowfall, WHYY News Climate Desk (Dec. 28, 2023), https://whyy.org/articles/philadelphia-weather-2023-warm-temperatures-low-snowfall/ [https://perma.cc/47YU-XLG5].

         [24].     Genesis 1:2 (King James).

         [25].     See, e.g., Stephen Cornell, Wolves Have a Constitution: Continuities in Indigenous Self-Government, 6 Int’l Indigenous Pol’y J. 1 (2015). There is no specific body of scholarship on the philosophy of amendment but, for a substantial discussion, see John R. Vile, The Constitutional Amending Process in American Political Thought (1992).

         [26].     On the origins of written constitutions, see Jonathan Gienapp, The Uncertainty of Written Constitutionalism, in The Second Creation: Fixing The American Constitution in the Founding Era (2018); Linda Colley, Empires of Writing: Britain, America, and Constitutions, 1776–1848, 32 Law & Hist. Rev. 237 (2014); Linda Colley, The Gun, the Ship, and the Pen (2021); and, for a dissenting opinion that sees written constitutionalism’s origins in lawsuits over colonial charters, see Nikolas Bowie, Why the Constitution Was Written Down, 71 Stan. L. Rev. 1397, 1400–08 (2019). Yaniv Roznai usefully defines constitutionalism as “the recognition of the people as the source of all governmental authority, the normative supremacy of the constitution, the ways the constitution regulates and limits governmental power, adherence to the rule of law, and respect for fundamental rights.” Roznai, supra note 14, at 1.

         [27].     See Amend, Oxford Eng. Dictionary https://www.oxfordlearnersdictionaries.com/us/definition/english/amend [https://perma.cc/4ZUK-LN2H].

         [28].     See Mend, Oxford Eng. Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/mend_1?q=mend [https://perma.cc/P7ED-7GNK].

         [29].     See Text, Oxford Eng. Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/text_1?q=text [https://perma.cc/2MG9-655J]; Textile, Oxford Eng. Dictionary, https://www.oxfordlearnersdictionaries.com/us/definition/english/textile?q=textile [https://perma.cc/S9DA-3H8Q].

         [30].     Emily Dickinson, for instance, once wrote that while “Devils cannot mend,” the Devil can be “amended.” Letter from Emily Dickinson to Susan Dickinson (1879) (digitized at the online archive of Emily Dickinson) https://archive.emilydickinson.org/working/h329.htm [https://perma.cc/943K-PE3T].

         [31].     Benjamin Franklin, Poor Richard, Nat’l Archives (1745), https://founders.archives.gov/documents/Franklin/01-03-02-0001 [https://perma.cc/PH4C-AGK2].

         [32].     Benjamin Franklin, Poor Richard Improved, Nat’l Archives (1756), https://founders.archives.gov/documents/Franklin/01-06-02-0136 [https://perma.cc/9H4M-3LJS].

         [33].     To Amend, Samuel Johnson’s Dictionary, https://johnsonsdictionaryonline.com/views/search.php?term=amend [https://perma.cc/QTN7-7K8S].

         [34].     Rev. Richard Price, A Discourse on the Love of Our Country, Speech Delivered to the Society for Commemorating the Revolution in Britain (Nov. 4, 1789).

         [35].     Noah Webster, A Compendious Dictionary of the English Language 11 (1806).

         [36].     For a definition of amendment, see Albert, supra note 14, at 79–80. For a similar but earlier argument, see Charles Leedham, Our Changing Constitution 1 (1964) (“The great majority of the amendments should really be called ‘additions.’”).

         [37].     Lord Chief-Justice Matthew Hale, Considerations Touching the Amendment or Alteration of Lawes, in A Collection of Tracts Relative to the Law of England, From Manuscripts 249, 268 (Francis Hargrave ed., 1787).

         [38].     See Vile, supra note 25, at 13.

         [39].     On longevity, see generally Zachary Elkins, Tom Ginsburg & James Melton, The Endurance of National Constitutions (2009).

         [40].     The Declaration of Independence para. 2 (U.S. 1776).

         [41].     Letter from Thomas Jefferson to James Madison (Sep. 6, 1789); see also Ozan O. Varol, Temporary Constitutions, 102 Calif. L. Rev. 409, 412–16 (2014) (arguing for temporary constitutions that are term-limited and lapse at the expiration date unless reenacted through regular constitutional amendment procedures).

         [42].     The Federalist No. 49 (James Madison).

         [43].     David Hume, Essays Moral, Political, and Literary 452 (T.H. Green & T.H. Grose eds., 1907) (1793).

         [44].     See Thomas Ginsburg, Zachary Elkins & James Melton, The Lifespan of Written Constitutions, Univ. of Chi., The L. Sch. (2009), https://www.law.uchicago.edu/news/lifespan-written-constitutions [https://perma.cc/Q629-A5LA].

         [45].     Willi Paul Adams, The First American Constitutions: Republican Ideology and the Making of the State Constitutions in the Revolutionary Era 141 (Rita Kimber & Robert Kimber trans., University of North Carolina Press 2001) (1940).

         [46].     Massachusetts, Colony To Commonwealth: Documents on the Formation of the Constitution, 1775–1780, at 67–68 (Robert J. Taylor ed., 1961).

         [47].     David E. Kyvig, Explicit and Authentic Acts: Amending the U.S. Constitution, 1776–1995, at 18 (2016).

         [48].     See Formal Attempts to Revise the Articles of Confederation, Ctr. for the Study of the Am. Const., https://csac.history.wisc.edu/document-collections/confederation-period/attempts-to-revise/ [https://perma.cc/YX8Q-PX6V].

         [49].     James Madison, Notes on the Constitutional Convention (June 5, 1787), https://avalon.law.yale.edu/18th_century/debates_605.asp [https://perma.cc/K7ME-P3TV].

         [50].     George Mason, Speech Delivered at the Constitutional Convention (June 11, 1787), https://avalon.law.yale.edu/18th_century/debates_611.asp [https://perma.cc/ZQ9A-TNDK].

         [51].     James Madison, Notes on the Constitutional Convention (Sep. 10, 1787), https://avalon.law.yale.edu/18th_century/debates_910.asp [https://perma.cc/45G6-DT9W].

         [52].     See U.S. Const., art. V.

         [53].     James Madison, Notes on the Constitutional Convention (Sep. 15, 1787), https://avalon.law.yale.edu/18th_century/debates_915.asp [https://perma.cc/PU7R-C5P7].

         [54].     See U.S. Const. art. V.

         [55].     Id.

         [56].     See Pauline Maier, Ratification: The People Debate the Constitution, 1787–1788, at 36–38 (2010).

         [57].     Id. at 37.

         [58].     Id. at 38.

         [59].     James Madison, Notes on the Constitutional Convention (Aug. 31, 1787), https://avalon.law.yale.edu/18th_century/debates_831.asp [https://perma.cc/Q22D-5ZV6].

         [60].     James Wilson, Of the Study of the Law in the United States, in The Works of the Honourable James Wilson, L.L.D. 17 (Philadelphia, Lorenzo Press 1904) (originally printed in 1791).

         [61].     Id.

         [62].     Maier, supra note 56, at 80.

         [63].     1 Annals of Cong. 451 (1789) (Joseph Gales ed., 1834).

         [64].     Kyvig, supra note 47, at 96–104.

         [65].     Thomas Jefferson, Notes of a Conversation with George Washington (Aug. 6, 1793), https://founders.archives.gov/documents/Jefferson/01-26-02-0571 [https://perma.cc/B8N5-MRGW].

         [66].     See Donald S. Lutz, Toward a Theory of Constitutional Amendment, 88 Am. Pol. Sci. Rev. 355, 369 (1994).

         [67].     Daniel T. Rodgers, Contested Truths: Key Words in American Politics Since Independence 93–94 (1998); see also Roman Josué Hoyos, The Rise and Fall of Popular Sovereignty: Constitutional Conventions, Law, and Democracy in Nineteenth Century America 23 (2010) (Ph.D. dissertation, The University of Chicago) (ProQuest).

         [68].     5 U.S. (1 Cranch) 137, 180 (1803).

         [69].     60 U.S. 393 (1856).

         [70].     On this mode of constitutional expression, see Jill Lepore, We the People: A History of the U.S. Constitution (2025).

         [71].     Letter from Abigail Adams to John Adams (Mar. 31, 1776), https://founders.archives.gov/documents/Adams/04-01-02-0241 [https://perma.cc/4HLN-DWZS].

         [72].     Letter from John Adams to Abigail Adams (Apr. 14, 1776), https://founders.archives.gov/documents/Adams/04-01-02-0248 [https://perma.cc/2PBQ-6ECS].

         [73].     Reva B. Siegel, The Politics of Constitutional Memory, 20 Geo. J.L. & Pub. Pol’y 19, 27 (2022).

         [74].     See John J. Dinan, The American State Constitutional Tradition 4 (2006) [hereinafter Dinan, Constitutional Tradition].

         [75].     See Democracy, Liberty, and Property: The State Constitutional Conventions of the 1820s (Merrill D. Peterson ed., 2010).

         [76].     Constitution of Vermont, July 8, 1777, Avalon; see Dinan, Constitutional Tradition, supra note 74, at 9; see also Gary J. Aichele, Making the Vermont Constitution: 1777-1824, in 56 Vermont History 166, 166–88 (1988).

         [77].     See Democracy, Liberty, and Property, supra note 75, at x.

         [78].     See Dinan, Constitutional Tradition, supra note 74, at 9; John Dinan, Explaining the Prevalence of State Constitutional Conventions in the Nineteenth and Twentieth Centuries, 34 J. Pol’y Hist. 297, 301 (2022) [hereinafter Dinan, State Constitutional Conventions] (Table 1).

         [79].     See Documents of Native American Political Development: 1500s to 1933, at 55–56, 72–73 (David E. Wilkins ed., 2009).

         [80].     See Robert L. Tsai, America's Forgotten Constitutions: Defiant Visions of Power and Community 85 (2014).

         [81].     Id. at 60.

         [82].     See Bruce H. Mann, Republic of Debtors: Bankruptcy in the Age of American Independence 148 (2009); Hoyos, supra note 67, at 9–10.

         [83].     See Colored Conventions Project, https://omeka.coloredconventions.org/conventions#by-year [https://perma.cc/YZ3Y-7N3C].

         [84].     See Howard Holman Bell, A Survey of the Negro Convention Movement, 1830–1861, at 4–5 (1953) (Ph.D. dissertation, Northwestern University) (ProQuest); see also Derrick R. Spires, The Practice of Citizenship: Black Politics and Print Culture in the Early United States 79–121 (2019); Colored Conventions Project, supra note 83.

         [85].     Report of the Woman’s Rights Convention, Held at Seneca Falls, N.Y., July 19th and 20th, 1848, https://www.nps.gov/wori/learn/historyculture/report-of-the-womans-rights-convention.htm [https://perma.cc/MBY3-MWCE].

         [86].     See generally Ralph A. Wooster, The Secession Conventions of the South (1962).

         [87].     See Dinan, State Constitutional Conventions, supra note 78, at 304; see also Dinan, Constitutional Tradition, supra note 74, at 9 (“[M]ore conventions were held during the 1860s than in any other decade in American history.”).

         [88].     See J. H. Snider, Does the World Really Belong to the Living? The Decline of the Constitutional Convention in New York and Other US States, 1776–2015, 6 Am. Pol. Thought. 256, 257 (2017) (“There is no literature on the decline of federal constitutional conventions because there has only been one such convention in American history.”). For a list of calls for a federal convention, see Proposed Amendments to the U.S. Constitution, 1787–2001, at 1720–36 (John R. Vile ed., 2003). An especially useful online collection is The Article V Library. See Article V Libr., http://article5library.org [https://perma.cc/5BKD-XXHP].

         [89].     Alexis De Tocqueville, Democracy In America 476 (Henry Reeve trans., Floating Press 2009) (1840).

         [90].     Id.

         [91].     See Rodgers, supra note 67, at 97.

         [92].     See Hoyos, supra note 67, at 24.

         [93].     Rodgers, supra note 67, at 98.

         [94].     Id.

         [95].     Andrew Jackson, First Annual Message of the Presidency Delivered at Congress (Dec. 8, 1829), https://www.presidency.ucsb.edu/documents/first-annual-message-3 [https://perma.cc/ELB6-JKHK].

         [96].     Id.

         [97].     Id.

         [98].     See Head of State Selection, Amends. Project, https://amendmentsproject.org/search?search_any_field=&summary=&amendment_text=&topics=472b9643-c5d8-4df5-91eb-9865c8f0fa24&type=&date_before=1860-01-01&date_after=1804-01-01&sort=relevance&page=1&view=list [https://perma.cc/R4P9-4L49].

         [99].     See, e.g., H.R. Journal, 19th Cong., 1st Sess. 263 (1825) (“That the Constitution of the United States ought to be so amended, that the People of the several States, authorized to vote for members of the most numerous branch of the Legislature in each State, shall vote directly for the President and Vice President of the United States, and that a plurality of votes shall determine the choice.”).

       [100].     See Amendment: Amendments Only to be Proposed Decennially, Amends. Project, https://amendmentsproject.org/amendments/b019-h18260308he/ [https://perma.cc/PFP2-SBYY]; Head of State Selection, Amendments Project, supra note 98.

       [101].     See Head of State Selection, Amends. Project, supra note 98 (listing attempts to amend the Constitution to alter the method of electing the President between 1789 and 2022).

       [102].     See Apportionment of Seats in Legislature, Amends. Project, https://amendmentsproject.org/search?view=None&search_any_field=&summary=&amendment_text=&topics=555a7f42-6cc8-499d-81d2-b328ffa46377&type=&date_after=&date_before=&sort=relevance&size=25&page=1a [https://perma.cc/K2P2-SJJL].

       [103].     See Mandatory Retirement Age for Judges, Amends. Project, https://amendmentsproject.org/search?view=None&search_any_field=&summary=&amendment_text=&topics=43aa30c4-0056-48de-a58e-427e604d3186&type=&date_after=&date_before=&sort=relevance&size=25&page=1 [https://perma.cc/36VQ-QZJS].

       [104].     See Property Qualifications for Suffrage, 1800 (map), Norman B. Leventhal Map & Educ. Ctr., https://collections.leventhalmap.org/search/commonwealth:q524n3142 [https://perma.cc/FV3Y-ZAVS]; see also Alexander Keyssar, The Right to Vote: the Contested History of Democracy in the United States (2000).

       [105].     Property Qualifications for Suffrage, 1860 (map), Norman B. Leventhal Map & Educ. Ctr., https://collections.leventhalmap.org/search/commonwealth:q524n3185 [https://perma.cc/53QF-J8DD].

       [106].     Property Qualifications for Suffrage, 1830 (map), Norman B. Leventhal Map & Educ. Ctr., https://collections.leventhalmap.org/search/commonwealth:q524n316m [https://perma.cc/9TRL-WVWG].

       [107].     See Democracy, Liberty, and Property, supra note 75, at xxii.

       [108].     See Congressional Quarterly, National Party Conventions, 1831–1984, at 5 (1987).

       [109].     See Stan M. Haynes, The First American Political Conventions: Transforming Presidential Nominations, 1832–1872, at 7 (2012).

       [110].     See Cong. Q., Presidential Elections 1789–1996, at 9–10 (1997).

       [111].     See Laura J. Scalia, America’s Jeffersonian Experiment: Remaking State Constitutions, 1820–1850, at 7 (1999).

       [112].     See id.

       [113].     See Mila Versteeg & Emily Zackin, American Constitutional Exceptionalism Revisited, 81 U. Chi. L. Rev. 1641, 1649 (2014).

       [114].     See Keyssar, supra note 104, at 27.

       [115].     See Roger Sherman Hoar, Constitutional Conventions: Their Nature, Powers, And Limitations 59 (1917).

       [116].     These include Georgia (1788 and 1789), Massachusetts (1820), Virginia (1829–30 and 1850–51), Mississippi (1832), Tennessee (1834), North Carolina (1835), Pennsylvania (1837–38), New Jersey (1844), Louisiana (1845), Illinois (1847), Kentucky (1849), Indiana (1850–51), Ohio (1850–51), and Iowa (1857). See Dinan, State Constitutional Conventions, supra note 78, at 320.

       [117].     Dinan, Constitutional Tradition, supra note 74, at 33.

       [118].     See Hoyos, supra note 67, at 76–77.

       [119].     See id. at 78 n.129.

       [120].     See Keyssar, supra note 104, at 71–76.

       [121].     See id. at 82–85.

       [122].     See Snider, supra note 88, at 266–67.

       [123].     See id.

       [124].     Hugh A. Garland, The Life of John Randolph of Roanoke 327 (1853).

       [125].     Id. at 328.

       [126].     See Hoyos, supra note 67, at 125.

       [127].     Dinan, Constitutional Tradition, supra note 74, at 45.

       [128].     For an account of this debate as it played out over many conventions, see generally John J. Liolos, Should the Dead Bind the Living? Perhaps Ask the People: An Examination of Debates Over Constitutional Convention Referendums in State Constitutional Conventions, 54 Akron L. Rev. 329, (2020).

       [129].     Dinan, Constitutional Tradition, supra note 74, at 46.

       [130].     See Snider, supra note 88, at 268.

       [131].     N.Y. Const. art. XIX, § 2.

       [132].     See Scalia, supra note 111, at xii; see also Edmund Burke, Report of the Select Committee [on] the Memorial of the Democratic Members of the Legislature of Rhode Island 36–38 (1844). For a discussion of the right, see id. at 25–36.

       [133].     See Snider, supra note 88, at 272; Brent E. Dickson, Thomas A. John & Katherine A. Wyman, Lawyers and Judges as Framers of Indiana’s 1851 Constitution, 30 Ind. L. Rev. 397, 398 (1997).

       [134].     Garland, supra note 124, at 328.

       [135].     Letter from Thomas Jefferson to Samuel Kercheval (July 12, 1816), in 10 Thomas Jefferson, The Papers of Thomas Jefferson: Retirement Series 222–28 (J. Jefferson Looney ed., 2013).

       [136].     J.V. Smith, Report of the Debates and Proceedings of the Convention for the Revision of the Constitution of the State of Ohio, 1850–51, at 430 (1851).

       [137].     Id.

       [138].     Proceedings and Debates of the Convention of Louisiana Which Assembled at the City of New Orleans, January 14, 1844, at 411 (1845).

       [139].     Dinan, Constitutional Tradition, supra note 74, at 35.

       [140].     Id.

       [141].     Id. at 34.

       [142].     Id. at 47.

       [143].     Debates of the Missouri Constitutional Convention of 1875, at 393 (1930); Dinan, Constitutional Tradition, supra note 74, at 47.

       [144].     Elisha P. Hurlbut, Essays on Human Rights and Their Political Guarantees 52 (1848).

       [145].     Id.

       [146].     Id.

       [147].     Id.

       [148].     Francis Lieber, Amendments of the Constitutions Submitted to the Consideration of the American People 35 (1865) [hereinafter Lieber, Amendments]. The tract was written in 1864.

       [149].     Conn. Const. of 1818, art. VI, § 2.

       [150].     See Jerome B. Meites, The 1847 Illinois Constitutional Convention and Persons of Color, 108 J. Ill. State Hist. Soc’y 267, 271–75 (2015).

       [151].     Journal of the Missouri State Convention 18, 34 (1820).

       [152].     Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement 51 (2021).

       [153].     Id.

       [154].     Id. at 49.

       [155].     Id. at 53.

       [156].     See A Report of the Debates and Proceedings of the Convention of the State of New York (1821) [hereinafter Report of New York].

       [157].     Id. at 70.

       [158].     The petition was likely destroyed in a fire in 1911. Email from New York State Archives to the author (June 28, 2023) (on file with the author).

       [159].     Report of New York, supra note 156, at 98.

       [160].     Id. at 99; see Democracy, Liberty, and Property, supra note 75, at 139, 194–95.

       [161].     Report of New York, supra note 156, at 104.

       [162].     See Democracy, Liberty, and Property, supra note 75, at 197.

       [163].     Report of New York, supra note 156, at 98.

       [164].     Id.

       [165].     Report of New York, supra note 156, at 190.

       [166].     Id. at 202.

       [167].     See Masur, supra note 152, at 147, 180.

       [168].     See Democracy, Liberty, and Property, supra note 75, at 119–25.

       [169].     Two Important Inquiries, The Rights of All, Sep. 18, 1829, at 34; see also Christopher James Bonner, Remaking The Republic: Black Politics and the Creation of American Citizenship 21–24 (2020).

       [170].     See Elective Franchise, The Rights of All, Oct. 29, 1829, at 42.

       [171].     Constitution of the American Society of Free Persons of Colour, For Improving Their Condition in the United States; For Purchasing Lands; And for the Establishment of a Settlement in Upper Canada (1831).

       [172].     Minutes And Proceedings of the First Annual Convention of the People of Colour, Held by Adjournments in the City of Philadelphia (1831).

       [173].     For a complete list of state conventions and their dates, see Colored Conventions Project, supra note 83.

       [174].     See Spires, supra note 84, at 98.

       [175].     Id.

       [176].     See id. at 87.

       [177].     For example, the 1846 New York petition from “females of Covington, Wyoming County, in favor of woman’s rights.” See Jacob Katz Cogan & Lori D. Ginzberg, 1846 Petition for Woman’s Suffrage, New York State Constitutional Convention, 22 Signs 427, 429 (1997).

       [178].     For more on the gag rule, see generally Scott R. Meinke, Slavery, Partisanship, and Procedure in the U.S. House: The Gag Rule, 1836–1845, 32(1) Legis. Stud. Q., 33 (2007). For an example: In 1839, when John Quincy Adams presented a petition calling on Congress to pass a constitutional amendment prohibiting slavery in any new state, it was tabled. See Amendment: Praying Congress to Propose Such Amendments, Amends. Project, https://amendmentsproject.org/amendments/p_h33-p63_01255/ [https://perma.cc/9YX6-8E2C].

       [179].     Minutes of the National Convention of Colored Citizens: Held at Buffalo for the Purpose of Considering Their Moral and Political Condition as American Citizens 4 (1843) [hereinafter Minutes Held at Buffalo].

       [180].     Id. at 6–7; see also Bonner, supra note 169, at 57–58.

       [181].     Minutes Held at Buffalo, supra note 179, at 7.

       [182].     Id.

       [183].     Henry Highland Garnet, Address to the Slaves of the United States of America (Rejected by the National Convention, Held in Buffalo, N.Y., 1843), in A Memorial Discourse 51 (Joseph M. Wilson ed., 1865); see also Bell, supra note 84, at 76–77.

       [184].     Meites, supra note 150, at 270.

       [185].     Id. at 270–71; see also Charles A. Gliozzo, John Jones and the Repeal of the Illinois Black Laws 4 (1975) [hereinafter Gliozzo, Repeal]; Elmer Gertz, The Black Laws of Illinois, 56 J. Ill. State Hist. Soc’y 454 (1963).

       [186].     John Jones, Pleading Their Own Cause, Western Citizen, Sep. 21, 1847, at 2.

       [187].     Id.

       [188].     Id.

       [189].     John Jones, Free Colored Men, Western Citizen, July 11, 1848, at 1.

       [190].     See Journal of the Convention, Assembled at Springfield, June 7, 1847, at 76, 467 (1847); Ill. Const. of 1848, art. V, § 1; Meites, supra note 150, at 284.

       [191].     Meites, supra note 150, at 284.

       [192].     Jones, Free Colored Men, supra note 189.

       [193].     Report of the Proceedings of the Colored National Convention, Held at Cleveland, Ohio, on Wednesday, September 6, 1848, https://omeka.coloredconventions.org/files/original/c89ba776a8a2ab620760e8518c1bac1a.pdf [https://perma.cc/PT4D-YWMT] [hereinafter Colored National Convention]; see also Gliozzo, Repeal, supra note 185; see also Charles A. Gliozzo, John Jones and the Black Convention Movement, 1848–1856, 3 J. Black Stud. 228 (1972) [hereinafter Gliozzo, Black Convention Movement].

       [194].     Letter from Theodora Lee Purnell to the Illinois Historical Society (Sep. 2, 1955). On Mary Jones as a writer, see Letter from Mary Jones to the Chicago Historical Society (July 29, 1879).

       [195].     Declaration of Sentiments (Seneca Falls, N.Y. 1848).

       [196].     Id.

       [197].     See Colored National Convention, supra note 193, at 15; Gliozzo, Black Convention Movement, supra note 193, at 228–30.

       [198].     See Colored National Convention, supra note 193, at 11; Kathryn K. Sklar, Women’s Rights Emerges Within The Antislavery Movement 1830–1870, at 183–84 (2000).

       [199].     See Colored National Convention, supra note 193, at 11.

       [200].     See id. at 12.

       [201].     See id. at 11–12, 17.

       [202].     See Spires, supra note 84, at 84.

       [203].     Jill Lepore, These Truths: A History of the United States 244–46 (2018).

       [204].     See Thelma Jennings, The Nashville Convention: Southern Movement For Unity, 1848–1851, at 38–39 (1980).

       [205].     2 Rufus Blanchard, Discovery and Conquests of the Northwest with the History of Chicago 298 (1900).

       [206].     Petition for the Repeal of the Black Laws, Western Citizen, Dec. 24, 1850.

       [207].     Gliozzo, Black Convention Movement, supra note 193, at 231.

       [208].     Frederick Douglass, Claims of Our Common Cause: Address of the Colored Convention Held in Rochester, July 6–8, 1853, to the People of the United States (1853).

       [209].     Frederick Douglass, Speech Given at Chicago, The Kansas-Nebraska Bill (Oct. 30, 1854).

       [210].     John Bouvier & Robert Kelham, A Law Dictionary, Adapted to the Constitution and Laws of the United States of America, and of the Several States of the American Union: With References to the Civil and other Systems of Foreign Law 178–79 (1839).

       [211].     See Spires, supra note 84, at 23.

       [212].     Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 404 (1857) (“The words ‘people of the United States’ and ‘citizens’ are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the ‘sovereign people,’ and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word ‘citizens’ in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States.”).

       [213].     Frederick Douglass, Speech Delivered in New York on the Dred Scott Decision (Aug. 4, 1857).

       [214].     The Proceedings of the Black State Conventions, 1840–1865, at 99–100 (Philip S. Foner & George E. Walker eds., 1979); see also The Liberator (Oct. 1, 1858).

       [215].     Blanchard, supra note 205, at 298.

       [216].     Id.

       [217].     John Brown’s Provisional Constitution (1858).

       [218].     See Hoyos, supra note 67, at 121.

       [219].     See Amendment: Amendment Abolishing Slavery Prohibited, Amends. Project, https://amendmentsproject.org/search?view=None&search_any_field=&summary=&amendment_text=&type=&date_after=&date_before=&sponsor=52202023-18f0-4cbc-bf3d-9b31134c2a08&sort=relevance&size=25&page=1 [https://perma.cc/C8GR-LLER].

       [220].     As late as February 1864, three years into the Civil War, Northern state legislatures were still, technically, considering it. See Michael Vorenberg, Final Freedom: The Civil War, the Abolition of Slavery, and the Thirteenth Amendment 90 (2004).

       [221].     See generally Francis Lieber, Instructions for the Government of Armies of the United States in the Field (Apr. 24, 1863) [hereinafter Lieber, Instructions].

       [222].     See Lieber, Amendments, supra note 148; see also John R. Vile, Francis Lieber and the Process of Constitutional Amendment, 60 Rev. Pol. 525, 541–43 (1998).

       [223].     Lieber, Instructions, supra note 221, at 6.

       [224].     Id.

       [225].     U.S. Const. amend. XIII.

       [226].     Freedom Triumphant, New York Tribune, Feb. 1, 1865.

       [227].     Letter from Charles R. Douglass to Frederick Douglass (Feb. 9, 1865); see also Vorenberg, supra note 220, at 204–10.

       [228].     Cornelius Cole, Memoirs of Cornelius Cole: Ex-senator of the United States from California 220 (1908).

       [229].     Id.

       [230].     Vorenberg, supra note 220, at 210.

       [231].     Freedom Triumphant, supra note 226.

       [232].     J.W. Thompson, An Authentic History of the Douglass Monument 156 (1903).

       [233].     See Jill Lepore, The United States’ Unamendable Constitution, New Yorker, Oct. 26, 2022, and John Dinan, Table 3.1, in the possession of the author.

       [234].     See Albert, supra note 14, at 113.

       [235].     The Houston-based Convention of States Action currently heads this movement. See Convention of States Action, https://conventionofstates.com [https://perma.cc/A6CN-QG6L].

       [236].     See State Constitutional Conventions, Ballotpedia, https://ballotpedia.org/State_constitutional_conventions [https://perma.cc/Z3V8-MDSQ].

       [237].     Ullmann v. United States, 350 U.S. 422, 428 (1956); see also Unintended Consequences of Constitutional Amendment 2–3 (David E. Kyvig ed., 2000).

       [238].     See Kyvig, supra note 47, at 10.

       [239].     On the relationship between state and federal amending, see Robinson Woodward-Burns, Hidden Laws: How State Constitutions Stabilize American Politics 1–23 (2021). On constitutional change by statute, see William N. Eskridge Jr. & John A. Ferejohn, A Republic of Statutes: The New American Constitution (2010) and Maggie Blackhawk, Legislative Constitutionalism & Federal Indian Law, 132 YALE L.J. 2205 (2023).

       [240].     Hearing before the S. Comm. on the Judiciary, 75th Cong. 1 (Apr. 16, 1937) (testimony of John Davis, Exec. Sec’y of the Nat’l Negro Cong.).

       [241].     347 U.S. 483 (1954).

       [242].     381 U.S. 479 (1965).

       [243].     Julie C. Suk, A Dangerous Imbalance: Pauli Murray’s Equal Rights Amendment and the Path to Equal Power, 107 Va. L. Rev. Online 3, 11 (2021).

       [244].     Id. at 12.

       [245].     Id.

       [246].     Id. at 13.

       [247].     Id. at 15.

       [248].     The Twenty-Seventh Amendment, concerning congressional salary and ratified in 1992, had passed Congress in 1789 and been forgotten. On how the Constitution’s unamendability came to be perceived and therefore came to be, and why it should be resisted, see generally Vicki C. Jackson, The (Myth of Un)Amendability of the U.S. Constitution and the Democratic Component of Constitutionalism, 13 Int’l J. Const. L. 575 (2015).

       [249].     See Robert H. Bork, Neutral Principles and Some First Amendment Problems, 47 Ind. L.J. 1 (1971).

       [250].     142 S. Ct. 2111, 2120 (2022).

       [251].     142 S. Ct. 2228, 2235 (2022); 410 U.S. 113 (1973).

       [252].     See Versteeg & Zackin, supra note 113; see also Stephen Gardbaum, The Myth and the Reality of American Constitutional Exceptionalism, 107 Mich. L. Rev. 391 (2008).

       [253].     The Federalist No. 49 (James Madison); see also Jackson, supra note 249; Rosalind Dixon & Richard Holden, Constitutional Amendment Rules: The Denominator Problem (U. Chi. Pub. L. & Legal Theory Working Paper No. 346, 2011).

       [254].     See Tom Ginsburg, Zachary Elkins & James Melton, The Lifespan of Written Constitutions (Dec. 26, 2007) (unpublished draft), http://jenni.uchicago.edu/WJP/Vienna_2008/Ginsburg-Lifespans-California.pdf [https://perma.cc/C7N3-LYR6] (“Constitutions are designed to stabilize and facilitate politics, but there is certainly the possibility that constitutions can outlive their utility and create pathologies in the political process that distort democracy.”).

       [255].     See Albert, supra note 14, at 50.

       [256].     The Conservation Governor: Redefining Environmentalism, Gaylord Nelson and Earth Day, https://nelsonearthday.net/conservation-governor-redefining-environmentalism/ [https://perma.cc/PSQ5-FJCS].

       [257].     See generally David R. Boyd, The Environmental Rights Revolution: A Global Study of Constitutions, Human Rights, and the Environment (2023).

       [258].     On the artificiality of the eighteenth-century’s notion of the relationship between the social and natural worlds, see generally Michel Serres, The Natural Contract (1995).

       [259].     Roderic O’Gorman, Environmental Constitutionalism: A Comparative Study, 6 Transnat’l Env’t L. 435, 436 (2017).

       [260].     Nadja Popovich, Livia Albeck-Ripka & Kendra Pierre-Louis, The Trump Administration Rolled Back More Than 100 Environmental Rules. Here’s the Full List, N.Y. Times, Jan. 20, 2021, https://www.nytimes.com/interactive/2020/climate/trump-environment-rollbacks-list.html [https://perma.cc/9L9P-BXEM].