We the People: A History of the U.S. Constitution

Between 1804 and 1865, no changes were made to the Constitution, primarily because the slave trade had gridlocked progress forward. At the state level, however, constitutional amendments were frequent, and the constitutional convention became recognized as the civilized and politically progressive method for change. Those who were excluded from mainstream political life formed their own conventions: “Between 1830 and 1869, Black delegates met in forty-nine state conventions, two regional conventions, and eleven national conventions” (162). Women and indigenous groups also held their own conventions. One of the major sources of gridlock at the federal level was the question of who had the right to interpret the Constitution, a debate that continues to this day.

The Supreme Court quickly asserted its power of interpretation over Congress in 1803 when Chief Justice John Marshall stripped Congress of its ability to declare a decision unconstitutional. In 1857, the case of Dred Scott v. Sandford further solidified the Court’s authority. While the Court and Congress debated constitutional authority, others saw a major flaw in the country’s electoral college and the disproportionate power given to Southern states through the three-fifths clause, which agreed to count 60 percent of an individual state’s enslaved population to determine its number of congressional representatives. The Louisiana Purchase, in which the United States acquired the Louisiana Territory from the French in 1803, was slated to bring even more power to white enslavers despite arguments from founders like Thomas Jefferson that the Louisiana Purchase was unconstitutional.

A series of state constitutional conventions and reform movements revealed growing tension between population change and the rigidity of constitutional amendment, reinforcing concerns about representation in a rapidly expanding nation. In the 1820s, several states—most notably New York (1821) and Virginia (1829—1830)—held constitutional conventions to address malapportionment, as older property-based systems overrepresented rural or elite populations despite urban growth. Reformers argued that representation should reflect the population more accurately, while conservatives resisted changes that would dilute established power. These debates highlighted a recurring constitutional problem: as the population expanded and shifted, formal amendment processes lagged behind social reality.

State constitutional conventions increasingly confronted questions of race by explicitly hardening racial boundaries in constitutional language, often through the deliberate insertion of the word “white.” As suffrage expanded for white men with the removal of property ownership requirements, many states simultaneously narrowed political inclusion along racial lines. The New York Constitutional Convention of 1821, held in Albany, provides a clear example: while delegates eliminated property qualifications for white male voters, they imposed new and onerous property requirements on Black men. This shift marked a critical constitutional moment in which race replaced property as the primary determinant of political agency.

At the same time, frustration with constitutional limits fueled broader constitutional crises. Nullification, advanced most notably in South Carolina, asserted that states could invalidate federal laws deemed unconstitutional, exposing deep disagreements over sovereignty and constitutional authority. Parallel to this, reformers periodically called for federal constitutional conventions to address representation, slavery, and economic power, though fears of destabilization consistently prevented such conventions from occurring—further demonstrating how the promise of constitutional change repeatedly collided with anxiety over its consequences.

In this chapter, Lepore examines the Civil War and Reconstruction as a constitutional rupture that exposed the limits of the original Constitution. She opens with the aftermath of the war and the arrest of Jefferson Davis, former president of the Confederacy, whose planned treason trial in 1867—remarkable for its potential jury of both white and Black men—symbolized the unresolved question of whether the Constitution could meaningfully reckon with rebellion and slavery. Lepore argues that the Constitution, as written, was not designed to withstand a crisis of this magnitude, nor to resolve the moral and political contradictions embedded within it.

The chapter traces the escalating constitutional conflict over slavery that preceded the war. South Carolina’s attempt to secede revealed deep disagreements about sovereignty, federal authority, and the permanence of the Union. By February 1861, seven Southern states had seceded, asserting that the Constitution no longer bound them. Efforts to preserve the Union through compromise, including the proposed Corwin Amendment—which sought to permanently protect slavery from federal interference—demonstrated how constitutional mechanisms were repeatedly used to defend injustice rather than dismantle it. These efforts failed, and on April 12, 1861, the firing on Fort Sumter marked the beginning of open war.

Lepore also highlights the role of legal theorist Francis Lieber, whose work culminated in the Lieber Code, a set of rules governing wartime conduct that reflected the need to reinterpret constitutional principles under conditions of total war. The war ultimately forced a fundamental rethinking of the Constitution itself. Its conclusion made possible the passage of the Thirteenth Amendment, formally abolishing slavery and marking the first time the Constitution was rewritten to expand freedom rather than preserve bondage. The end of the war reopened the question of Davis’s guilt for treason, but more importantly, it revealed that only through constitutional reconstruction—rather than endurance alone—could the nation attempt to resolve the failures exposed by civil war.

In this chapter, Lepore turns to the post-Civil War struggle over political rights, focusing on the women’s suffrage movement and its relationship to constitutional change. She opens on January 11, 1871, when Victoria Woodhull became the first woman to address the House Judiciary Committee, arguing that women already possessed the right to vote under the Constitution as amended. Drawing on the language of the Fourteenth and Fifteenth Amendments, Woodhull claimed that citizenship itself conferred suffrage, making further amendment unnecessary. Lepore presents Woodhull’s argument as a radical reimagining of constitutional meaning—one that treated interpretation, rather than amendment, as the pathway to equality.

Woodhull’s position stood in tension with other suffragists, including Susan B. Anthony, who pursued more cautious legal and political strategies, and Frances Watkins Harper, who insisted that women’s rights could not be separated from racial justice. These differences fractured the suffrage movement into two competing camps. One group, later known as the “Amendmentists,” argued that only a new constitutional amendment could secure women’s voting rights. The other group believed that women should claim suffrage immediately through reinterpretation of existing amendments, especially the expansive language of Reconstruction.

Lepore situates this fracture within a broader constitutional moment. During Reconstruction, Congress asserted unprecedented authority by rejecting state constitutions that failed to meet new standards of citizenship and civil rights, signaling that constitutional legitimacy now required alignment with the Thirteenth, Fourteenth, and Fifteenth Amendments. Yet these amendments also exposed new exclusions. While they expanded citizenship and suffrage for Black men, they left women outside the Constitution’s explicit protections, intensifying debates over who counted as “the people.” Through Woodhull’s radical challenge and the emergence of the Amendmentists, Lepore shows how Reconstruction transformed constitutional politics.

In Chapter 7, Lepore expands the constitutional conversation beyond the continental United States, arguing that places like Hawaiʻi and Native nations have been systematically excluded from traditional constitutional histories. She contends that this omission is not accidental but ideological, noting that “leaving these parts of American history out of its constitutional past renders American imperialism invisible and obscures the influence of U.S. constitutional ideas and practices on insular territories and native nations, as well as influence that runs in the other direction” (289). By foregrounding Hawaiʻi, Lepore reveals how constitutional principles were exported, imposed, and resisted beyond U.S. borders.

Central to this chapter is the annexation of Hawaiʻi in 1898, driven in large part by economic interests such as the Sugar Trust, which sought favorable trade terms and political control. Lepore juxtaposes these imperial forces with the constitutional vision of Queen Liliʻuokalani, who was arrested and imprisoned after an uprising in 1895. Even throughout her imprisonment, she remained determined to revise her kingdom’s constitution in order to restore Native Hawaiian sovereignty. She and her companions created a nine-block quilt, embroidered with the history of Hawaiʻi and its foundational principles, that acts as a symbol in Lepore’s book—representing constitutional order, balance, and a political system rooted in Indigenous tradition rather than American law.

Lepore also situates Hawaiʻi within a broader debate about the rights of territories to create their own constitutions. This question echoed throughout the late 19th century, especially as the ratification of the Fourteenth Amendment raised unresolved issues about citizenship for Native Americans. The Dawes Act of 1887 further complicated these questions by tying citizenship to land allotment, using constitutional language to justify the dispossession and assimilation of Indigenous nations.