How to Wake the Constitution’s Sleeping Giant

How Originalism Killed the Constitution

In the October issue, Jill Lepore explained how a radical legal philosophy has undermined the process of constitutional evolution.

Jill Lepore’s stellar cover story rightly described the Constitution’s amendment provision as a “sleeping giant.” The process is indeed in sound slumber today, but history suggests that it will wake up. Amendments, history shows, come in cycles. The political factors that trigger those cycles always differ. But what precedes each wave of amendments is consistent: worsening polarization that escalates to violence, butting up against conventional wisdom that insists that amendments are not a viable solution. We are sadly at such a point, much as we were a decade or more before the first amendments of the Progressive era were ratified in 1913. Just prior, at the turn of the century, then-scholar Woodrow Wilson, the editorial board of The Washington Post, and the award-winning historian Herman Ames all claimed that the Constitution was unamendable. They were wrong.

We should hope that the violence that finally stirs the giant will be less destructive than in cycles past. But I think we haven’t yet hit the low point in our current spiral. We’re getting closer: The civic pressures causing our descent are foundational, which means we must confront the Constitution as we reach the bottom. Our return ascent will include repair, correction, and hopefully some amendments.

Rick LaRue
Silver Spring, Md.

I appreciated Jill Lepore’s call for overdue amendments in “How Originalism Killed the Constitution.” It is clear from our imperial presidency, gridlocked Congress, and captured courts that America suffers from a deep constitutional rot. Potential amendments could include establishing equal rights for women, abolishing the Electoral College, overturning Citizens United, and banning gerrymandering. The United States could even attempt more dramatic revisions, such as establishing an elected attorney general, like many states, or imposing a wealth cap, as theorized by Thomas Paine and Plato.

The article describes the Constitution’s amendment provision as a “sleeping giant.” But how do we wake it? Voters in Missouri, a state referenced in the article for its long history of constitutional amendment, have utilized referenda and initiatives to drive constitutional change for more than a century. Most recently, in November 2024, Missouri voters chose to enshrine women’s fundamental right to reproductive freedom in our state constitution. About 25 states have one or both of these processes, which have been found to promote accountable and responsive government.

In this context, one idea suggested in the 1980s by then-Representative Dick Gephardt of Missouri should be revisited: the national advisory referendum. A proposed amendment, placed on a midterm or presidential ballot by an act of Congress, would not be binding, but the result would gauge whether the amendment has sufficient nationwide support to meet the Constitution’s Article V state-ratification requirement.

Unlike most other modern democracies, America has never held a national vote on a question other than who should occupy the presidency and vice presidency. Perhaps this is one of the sources of the chief executive’s extraordinary power. But what if the solution to our nation’s democratic dysfunction is more democracy, not less?

Nahuel Sebastian Fefer
St. Louis, Mo.

As I read Jill Lepore’s article, I kept looking for a mention of the one word consistently missed in the Constitution. For years, I have been hoping that the “originalists” would stop and read the first sentence—“We the People of the United States, in Order to form a more perfect Union …”—and realize they have been overlooking the word more.

The Framers did not believe that America was perfect and that its Constitution ought to be cast in stone, only that America was more perfect than what had come before. They could easily have written “in Order to form a perfect Union,” but they didn’t. Instead, they understood that what they wrote was never going to be perfect and would need to adapt to endure. Thus, Article V.

Only by ignoring that word can originalists conclude that the Constitution is, as Justice Antonin Scalia put it, “dead, dead, dead.”

Cyndy Carrington Miller
Easton, Md.

This summer, while visiting Washington, D.C., with my son, we went inside the Jefferson Memorial and read the inscriptions on the walls out loud. One quote struck me deeply: “I am not an advocate for frequent changes in laws and constitutions, but laws and institutions must go hand in hand with the progress of the human mind. As that becomes more developed, more enlightened, as new discoveries are made, new truths discovered and manners and opinions change, with the change of circumstances, institutions must advance also to keep pace with the times. We might as well require a man to wear still the coat which fitted him when a boy as civilized society to remain ever under the regimen of their barbarous ancestors.”

This excerpt from a letter by Thomas Jefferson resonated with me immediately. Jefferson—the original originalist—would have been appalled at some of our recent Supreme Court decisions.

Brad Erickson
Iowa City, Iowa

Jill Lepore states that the more than 400 federal judges appointed by Ronald Reagan were “screened for their views on abortion.” I was Reagan’s last appointment to the United States Court of Appeals, but I was not asked for mine. I was warned that I would be, but the closest his staff got was the following exchange:

“Judge Nygaard, do you have a judicial philosophy?”

“Yes.”

“Would you tell us what it is?”

“I will. In criminal matters, I am basically Cartesian. And in civil and other matters, I am definitely Aristotelian.”

They asked no follow-up questions. I doubt they knew what I was talking about. In full disclosure, I am not sure even I knew!

Richard L. Nygaard
United States Circuit Judge
North East, Pa.

Jill Lepore replies:

In high school I had a wonderfully pudgy and eccentric tenth-grade history teacher. He taught in a second-story room with a wide plate-glass window that looked out at a mountain in the distance, whose silhouette resembled a sleeping giant. In the middle of an especially boring lesson—the accidental presidency of John Tyler, say—he’d lumber across the room and haul himself up onto the radiator beneath the window and lie down on it, exactly lining up his belly with the mountain’s summit, his head and feet with its smaller peaks: he, the giant. He’d sigh, settling in, and then he’d appear to nod off. We’d wait, a little nervously. And then suddenly and in a whirl of motion you could not imagine as within the capacity of so large and old and ungainly a man, he’d roll off the radiator, leap to his feet, and cry, “The giant wakes!” And it would be very thrilling, and we’d all snap to attention, and he’d move on and—somehow, somehow—he’d make the fall of the Whig Party gripping. In short, I heartily agree with these readers, and I hereby offer my assurance that the whole point of my sleeping-giant analogy with reference to Article V of the Constitution, aside from being a nod to a beloved teacher, is that somehow, somehow, and I suspect one day soon, “the giant will wake” !

Behind the Cover

In this month’s cover story, “Is This What Patriotism Looks Like?”, Jamie Thompson tells the stories of Thomas Webster, a retired New York City policeman who attacked the Capitol on January 6, 2021, and Noah Rathbun, a police officer whom Webster assaulted. (Webster has since been pardoned by Donald Trump.) Thompson also profiles Daniel Hodges, a police officer who was pinned against a doorway and beaten while attempting to prevent the mob from breaching the building. For our cover image, we selected a photograph of a group of officers attempting to hold back a crowd of rioters outside the Capitol.

— Paul Spella, Senior Art Director

Corrections

“Just How Real Should Colonial Williamsburg Be?” (November) originally stated that Thomas Jefferson and Patrick Henry once lived in the Governor’s Palace in Colonial Williamsburg. In fact, the residence at Colonial Williamsburg is a reconstruction of the original building. “The New German War Machine” (January) originally stated that the Bendlerblock once served as the headquarters of the Wehrmacht. In fact, it served as the headquarters of several divisions of the German military.

This article appears in the February 2026 print edition with the headline “The Commons.”