As taught in schools, the history of the U.S. Constitution is relatively straightforward. In 1787, a group of 55 men gathered in Philadelphia to debate the rules that would govern the new nation. Over four months, they hashed out the division of responsibilities between the states and the federal government, established three federal branches, and created a legislature with two chambers: the House, elected by the people; and the Senate, chosen by the states. They made compromises and decisions, especially over slavery, that have haunted the country ever since.
by John F. Kowal and
Wilfred U. Codrington III
New Press, 288 pp.
But as fateful and famous as those decisions were, in The People’s Constitution, the legal scholars John Kowal and Wilfred Codrington argue that they are only a small slice of how America’s Constitution came to be. That’s because the contemporary document is defined far more by its various amendments, enacted over the course of 200 years, than it is by what happened in 1787. The delegates in Philadelphia were not its only framers; the Constitution has been shaped by the millions of Americans who have voted for, organized for, and at times literally fought for change. And according to Kowal and Codrington, the upshot of these latter-day framers’ work has been immensely positive. They have made the U.S. Constitution “more democratic, more inclusive, and more responsive to the needs of a changing country.” (Full disclosure: Kowal works at and Codrington is a fellow at the Brennan Center for Justice, where I am a senior fellow.)
The People’s Constitution is structured as a chronological survey, moving from the document’s original amendments—the Bill of Rights—through to today. The authors provide a chapter on each era when amendments were successfully adopted, as well as those in which the process proved too complex and difficult for reformers. With a focus on the people and strategies that changed a nation by changing its Constitution, the book offers an insightful and captivating description of the country’s popular movements and the incredible challenges posed by the amendment process.
But though historical in nature, Kowal and Codrington’s book has important implications for modern constitutional law. Among conservatives, it is received wisdom that the U.S. Constitution should be interpreted through concepts of either textualism or originalism. The former holds that when scrutinizing a document, judges must identify its “plain” meaning and rule accordingly. The latter, practiced by Supreme Court Justices Clarence Thomas and Amy Coney Barrett, holds that constitutional provisions today mean the same thing they meant when they were written in 1787. Both theories are used to strike down pro-democracy, commonsense legislation.
The People’s Constitution implicitly dismantles these theories. The Constitution, Kowal and Codrington demonstrate, has always been a malleable document. Any good-faith interpretation must accept that its meaning is defined by its shifts. And the authors show that the amendments have moved it almost entirely in one direction: left. The most honest way to read the Constitution, then, isn’t as a static, 18th-century creation. It’s as a living, liberal document.
The Constitution was born in a state of flux. To try to sink the document’s passage, Anti-Federalists conjured up the specter of a despotic Congress abusing its newfound powers. They very well might have succeeded had the Federalists not promised to consider future amendments. The Constitution was adopted only after its boosters promised several state delegations that the document would be promptly changed. Shortly after its ratification, Congress and the states set out to pass the Bill of Rights.
But the Constitution’s scaffolding did not come off after the first 10 amendments. The various provisions designed to protect slavery proved untenable, and the country collapsed into civil war. As soon as the Union defeated the Confederacy, the northern states proceeded to make transformations that alone may rival what was done in 1787. Kowal and Codrington argue that the Thirteenth Amendment, the first of the three Reconstruction amendments, “wrought the most profound change of any amendment to the Constitution.” Not only did it ban slavery, but it was the first example of using the amendment process to enlarge rather than limit the powers of the federal government, reflecting a new vision of the importance and necessity of a powerful central authority. It enacted restrictions on the behavior of private individuals, which set the nation on a new path, giving the government more authority to regulate society.
The next two amendments were also highly transformative. The Fourteenth Amendment guaranteed citizenship for everyone born in the United States. It further empowered the federal government by imposing important limits on state governments—banning them from passing laws abridging the privileges or immunities of citizens, prohibiting them from depriving any person of life, liberty, or property without due process, and demanding that everyone receive equal protection under the law. The Fifteenth Amendment also curtailed states’ rights by enshrining Black men’s right to vote, overriding laws in both the South and the North.
But although these amendments had clearly rewritten the Constitution to be more progressive and to give the federal government more authority, there was no legal revolution. In part, that is because the Supreme Court refused to accept that the country’s central document had, in fact, been significantly altered. It curtailed the reach of the amendments for decades by striking down federal legislation that enforced its clauses. It was not until the mid-20th century that the post–Civil War amendments truly came into force.
Unfortunately, today’s Supreme Court acts in a similar manner. It has dramatically limited the ability of Congress and the president to fight voter suppression, arguing that critical parts of the Voting Rights Act violate the Constitution’s federal design. The conservatives behind these decisions could not be more wrong. Like their 19th-century predecessors, they have chosen to actively disregard amendments that gave the central government more power. Rather than view the Constitution as the evolving document that it is, they’ve decided to pretend that the document has shifted little since Philadelphia.
Racial equality isn’t the only area in which obstinate justices have contorted the Constitution, either ignoring its amendments or appropriating them for their own causes. Kowal and Codrington explain how the Fourteenth Amendment became, improbably, the anchor for the expansive view of corporate rights envisioned by the late 19th century’s increasingly conservative Supreme Court. Famous for such decisions as Lochner v. New York, which invalidated a state law regulating bakery working conditions, the Court viewed any restrictions on the power of private wealth as illegitimate and unconstitutional. This now largely discredited jurisprudence, rooted in laissez-faire economics and vague notions of “natural law,” ran counter to the amendment’s text and history. Over four decades, it was a powerful brake on the people’s ability to address new and unprecedented social harms.
But the people fought back. In a fairly short time, spanning 11 years, activists were able to amend the Constitution to create a fairer tax system, to have the people elect senators rather than state legislatures, to enshrine women’s right to vote, and to ban liquor across the country (at the time, Prohibition was championed by the left). These progressive amendment campaigns provided the model for subsequent efforts to further remedy the defects of the original Constitution, and they hammered home the point that America’s founding document was now meant to be liberal. Kowal and Codrington give special life to the battle for an income tax that provided the financial base for much of the progressive legislation to come in the 20th century. “The Sixteenth Amendment ranks among the most significant progressive achievements in American history,” according to the authors. “The income tax made modern government possible, repudiating the idea of a ‘limited’ national government.”
Kowal and Codrington are aware of the limits of this triumphalist narrative. As they note, not every effort to make the Constitution more progressive has been successful. Proponents of the Equal Rights Amendment have yet to push their proposal over the finish line. Various amendments to reform or abolish the Electoral College have also failed. And not all amendment campaigns have been progressive. Conservatives have come close to passing a balanced budget amendment through Congress on several occasions, as many Democrats succumbed to political pressure. The right has also pushed for congressional term limits; banning flag burning and gay marriage; and overturning Supreme Court decisions on the separation of church and state. But critically, and unlike the Constitution’s many liberal amendments, none of these attempts have succeeded.
This has not stopped right-wing judges from acting as if they have won. Over the past 15 years, the Supreme Court has ruled that Congress cannot compel individuals to purchase products (the first Affordable Care Act challenge), that the government cannot seriously restrict campaign contributions (Citizens United), and that individuals have a right to own guns (District of Columbia v. Heller). These cases run directly counter to both the content and historical trajectory of the Constitution. They effectively ignore centuries of amendments enhancing the power of the federal government. With a newly fortified 6–3 conservative majority, similarly ahistorical decisions are almost certainly on the way.
But Kowal and Codrington’s book should provide some hope. Despite long breaks and substantial frustration, constitutional history tilts in a progressive direction. It took multiple decades, but during and after the New Deal, liberals eventually succeeded in forcing the Court to abandon its Lochner and anti–civil rights positions. Past judges have understood the Constitution’s malleability, and future ones may as well. As Justice Thurgood Marshall once said, “ ‘We the People’ no longer enslave, but the credit does not belong to the Framers. It belongs to those who refused to acquiesce in outdated notions of ‘liberty,’ ‘justice,’ and ‘equality,’ and who strived to better them.” The “miracle” of what came out of Philadelphia, he continued, “was not the birth of the Constitution, but its life, a life nurtured through two turbulent centuries of our own making.”
