Jill Lepore On The Constitution

Jill is a writer and scholar. She’s a professor of American history at Harvard, a professor of law at Harvard Law, and a staff writer at The New Yorker. She’s also the host of the podcast “X-Man: The Elon Musk Origin Story.” Her many books include These Truths: A History of the United States (which I reviewed for the NYT in 2017) and her new one, We the People: A History of the U.S. Constitution — out in a few days; pre-order now.

For two clips of our convo — on FDR’s efforts to bypass the Constitution, and the worst amendment we’ve had — head to our YouTube page.

Other topics: raised by public school teachers near Worcester; dad a WWII vet; her struggles with Catholicism as a teen (and my fundamentalism then); joining ROTC; the origins of the Constitution; the Enlightenment; Locke; Montesquieu; the lame Articles of Confederation; the 1776 declaration; Paine’s Common Sense; Madison; Jefferson; Hamilton; Adams; New England town meetings; state constitutional conventions; little known conventions by women and blacks; the big convention in Philly and its secrecy; the slave trade; the Three-Fifths Clause; amendment provisions; worries over mob rule; the Electoral College; jury duty; property requirements for voting; the Jacksonian Era; Tocqueville; the Civil War; Woodrow Wilson; the direct election of senators; James Montgomery Beck (“Mr Constitution”); FDR’s court-packing plan; Eleanor’s activism; Prohibition and its repeal; the Warren Court; Scalia; executive orders under Trump; and gauging the intent of the Founders.

Browse the Dishcast archive for an episode you might enjoy. Coming up: John Ellis on Trump’s mental health, Michael Wolff on Epstein, Karen Hao on artificial intelligence, Katie Herzog on drinking your way sober, Michel Paradis on Eisenhower, Charles Murray on religion, David Ignatius on the Trump effect globally, and Arthur Brooks on the science of happiness. As always, please send any guest recs, dissents, and other comments to dish@andrewsullivan.com.

Here’s a fan of last week’s pod with Niall Ferguson:

Thanks for the great debate with Niall. I love hearing two Oxford grads going at it!

One thought I had throughout listening to Niall (and perhaps it’s the fate of all academics): he was so caught up in the formal definition of fascism (everyone needs to be in uniform!) and the fact that Trump 2.0 is uniquely American (duh) that he just sort of assumes that he’s won the argument. But that’s not the point, nor the argument. Of course Trump 2.0 is uniquely American, and of course it doesn’t look exactly like Nazi Germany in the ‘30s.

… but who cares?! The long list of authoritarian actions you dutifully (and depressingly) recall is all that matters. Trump 2.0 might not be Mussolini, but Trump is clearly a dangerous, corrupt, uniquely American authoritarian who is actively destroying the foundations of our republic with each passing day. Niall is far too sanguine about the current state of things.

I agree, but I may be wrong. Another concurs:

Ferguson seems to think that everything will be okay unless the United States goes full Third Reich, but as David Frum likes to say: there are a lot of stops on the train ride to Hitlerville. The US becoming a bigger Hungary with a strongman at the top, and all of the economic and social sclerosis associated with reactionary regimes, is really bad even without the cattle cars.

Also, if the republic makes it through this dark period, it will partly be due to those screaming from the rooftops and running around with our hair on fire and opening ourselves up to accusations of Trump Derangement Syndrome. When that happy day comes, people like Ferguson who were way too sanguine about the threats we face will sit back and say, “See, we were always right that you were overreacting.” But they’re not right, and people need to be ringing alarm bells now — or else Trump might do something like turn the military into a Republican Guard. Hell, they already stormed the Capitol and paraded enemy banners through our seat of government. There is no bottom for these people, or that man.

Another adds, “I’m surprised Viktor Orbán wasn’t mentioned”:

He’s absolutely the template for JD Vance and his disciples. It’s a more plausible scenario for the USA than a pure, fascist regime. Trump is too lazy to work out a coherent philosophy. He just wants his whims to be acted upon without demur. Vance and his ilk, however, see Hungary as a lodestar.

And another:

I think Ferguson is spot-on about the threat China poses to liberal democracy, but I thought it very important to highlight one error that he made. I’ll quote him verbatim:

Here’s the key. The system can’t be said to have failed until one of the following things happens. [Trump] secures a third term. What’s your probability of that? Low single digits? Seems highly unlikely. What else might tell us the system has failed? That the Supreme Court rules against the Trump administration, and the administration carries on regardless. At this point that seems unlikely too, because the administration broadly has complied with the rulings against it.

He implies that Trump has not crossed this rubicon, but he has indeed. Congress passed a law that required the divestiture of TikTok from the Chinese entity ByteDance; and Biden signed that law. Private entities then challenged the law as unconstitutional. And, on January 17, 2025, the Supreme Court upheld the law as constitutional, and thus required that TikTok be divested from ByteDance. As of the time I hit “send” on this email, it’s therefore been 230 days that the Trump administration has ignored both a duly passed Act of Congress and a decision of the Supreme Court.

Here’s a dissent toward me:

Your debate with Niall Ferguson was a refreshing, historical perspective on the American republic and the tussles between the various branches. But one thing you said really caught my attention: you feel significantly less free under the Trump administration than you did before. I have the opposite feeling, and let me explain why.

I am a partner in a major US law firm. A few years ago, I had to sit through a mandatory session with our labor law/employment attorney (yes, lawyers hire lawyers) who said my firm could be sued under NY civil rights laws if a partner refused to refer to an employee by their preferred pronouns, or even kept doing so accidentally if that happened enough times. So what that really means is that I could lose my job if I refuse to participate in a political project and political speech with which I don’t necessarily agree. I said to myself, is this freedom?

Here’s the thing. Under Trump, none of this has changed. The NY law is still the NY law, and, well, these firms are all liberal anyway. But I do feel slightly more free, because there has been some sort of momentum shift in the culture, and I might contemplate a day where I would not be forced, at pain of losing my job, into political speech.

My views are closely aligned with yours — probably more so than any other opinion journalist I follow — and I deeply desire a tolerant and liberal democracy. But if I have to choose between hard right-wing authoritarianism and soft-progressive totalitarianism, well, I just don’t know what I would choose, but probably the former.

If I had to pick between a red Caesar and a blue Caesar, I’d pick the red one too. But my entire politics is about preventing such a choice happening. And yes, I see your point about freedom under Biden and have made it myself many times. It’s why I felt some exhilaration on Trump’s election: that the authoritarian left would at least be on the back foot for a bit. If I still worked in the MSM or in any major corporation captured by the woke, I might feel a lot worse.

My sense of freedom under Trump is attenuated by the fact that an elective monarchy, ruling by whim, which is the current effective regime, denies all of us the freedom of the rule of law. If it’s politically selective, the rule of law vanishes. And a masked, anonymous, national police force with the power to grab people off the street without due process and throw them into new, vast detention camps or worse makes me feel less free.

Another listener looks to Ukraine:

There are many more interesting things happening in Ukraine than you and Ferguson talked about — especially regarding the long-term impact of this war on Russia. I think there would be great value to you and your listeners to dig deeper. Consider having Jason Smart on the pod. He’s a special correspondent to the Kyiv Post and has made understanding Russia and Putin a lifelong study. If even a portion of his analysis plays out, Russia and consequently the world could be in a very different place in the near future.

From a former paid subscriber who fell on hard times:

You kindly gave me — an old Geordie living in Japan — a free subscription a few months ago. In your intro with Niall Ferguson, you mentioned how subscription numbers are softening for your podcast. I love you, Andrew, but this drop is due to your obvious hatred of Trump. With Niall, there was some deference to Trump’s views, and the finale was beautiful and respectful. Trump is indeed disgusting, but he is cleaning up some disgusting areas.

Why not bring on some speakers now like Graham Linehan, Megyn Kelly, Douglas Murray, Jordan Peterson, Andrew Doyle — and watch your numbers soar.

We don’t do audience pandering here — on Trump or any other issue. If someone doesn’t want to subscribe because I oppose Trump, I’m sad but fine with it. Over 25 years now, I’ve had many readership dives because of positions I’ve taken. I lost almost half my readers when I turned on the Iraq War; I burned off some Dems when I went after Biden — and that’s just fine. I believe in subscribing to things where you might find things you disagree with — which is the reason I hope people subscribe to the Dish, and always have.

And, ahem, for the record, the idea that I don’t platform Trump supporters is empirically false. Douglas Murray has been on the pod twice already, and I’ve been on Megyn Kelly’s show two times. (Maybe she’s due for a Dishcast appearance?) As far as pro-Trump guests, we’ve had on Chris Rufo, Vivek Ramaswamy, Michael Anton, Batya Ungar-Sargon, Chris Caldwell (three times), Byron York, Oren Cass, Yoram Hazony, Erick Erickson (twice), Michael Lind, Patrick Deneen, Rod Dreher (twice), and Spencer Klavan — plus many other guests who are aligned with aspects of Trumpism, such as Mickey Kaus, Ann Coulter, Sohrab Ahmari (twice), Walter Kirn, et al. All of them are accessible via the archive.

Next up, a reader comments on last week’s Yglesias Award Nominee:

I was a long-time fan of Malcolm Gladwell and his work, but the confession that he systematically lied about the reality that trans athletes competing as women had an enormous (and unfair) advantage is a real disappointment — and it’s the second time I’ve seen examples of his intellectual dishonesty.