Neither Bone Nor Stone: Why the US Constitution Was Meant to be Amended

“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, failed First Amendment to the US Constitution introduced into Congress, 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 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 buds of oak leaves, 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. To ourselves and our posterity. Of the nearly two hundred written constitutions, the Constitution of the United States—­the most influential constitution in the world—­is also among the oldest, a relic, as brittle as bone, as hard as stone. Do ordain and establish.

But the U.S. Constitution is neither bone nor stone. It is an explosion of ideas. Parchment decays and ink fades, but ideas endure; they also change. The Constitution attempted to solve ancient problems having to do not only with the people and their rulers, the structure of government, and the nature of rights, but also with the knowability and endurance of law. Ingeniously, it accounted for the passage of time.

The U.S. Constitution is neither bone nor stone. It is an explosion of ideas. Parchment decays and ink fades, but ideas endure; they also change.

The U.S. Constitution was intended to be amended. “The whole purpose of the Constitution,” Supreme Court justice Antonin Scalia once said, “is to prevent a future society from doing whatsoever it wants to do.”  This is not true. One of the Constitution’s founding purposes was to prevent change. Another was to allow for change without violence. Amendment is so essential to the American constitutional tradition, so methodical and so entire a conception of endurance through adaptation, that it can best be described as a philosophy.

This book, a history of the Constitution, argues that the philosophy of amendment is foundational to modern constitutionalism. Amendment is also a constitution’s mechanism for the prevention of insurrection. This book aims to chronicle the origins of amendment, to identify the conditions under which amendment is possible, to examine why the practice of amendment has been abandoned, and to reckon with the question of whether the Constitution can endure without it.

A government of laws and not of men
Every ordered society is governed by a set of core rules, customs, and principles. This is true for every species that lives in a structured community: a pack of wolves or a pod of whales, a hive of honeybees or a colony of ants, a herd of deer or a flock of geese, a clan of elephants or a tribe of apes and even a forest of trees. Only humans devise constitutions. Devising constitutions, or fundamental laws, is so elemental to human society that the collective noun might be a constitution of humans.

Since long before the keeping of records, humans erected governments, codified laws, anointed rulers, imposed or banned religious practices, federated or severed states, claimed territory, and established sovereignty. Once writing was invented, rulers of ancient human societies began recording laws, etching them into clay and stone in the hope that they would last, binding one generation to the next. The Sumerian Code of Ur-­Nammu, the oldest surviving written law, was carved into sunbaked clay tablets four thousand years ago. It declared that the king had “banished malediction, violence and strife” from the land. Three hundred years later the Code of the Babylonian king Hammurabi was etched into an eight-­foot-­tall slab of black stone, weighing four tons, declaring Hammurabi anointed by God “to bring about the rule of righteousness in the land, to destroy the wicked and the evil-­doers; so that the strong should not harm the weak.” Sometime around 1300 BCE, Yahweh, the Hebrew god, issued ten commandments to the prophet Moses, according to the Book of Deuteronomy, “and he wrote them in two tables of stone.” Ancient Chinese written law dates to the Zhou Dynasty in the sixth century BCE, inked onto jiǎndú, strips of bamboo.

Laws govern people; constitutions govern governments. Nearly all constitutions are assemblages, as an eighteenth-­century English political philosopher once explained, gatherings together “of institutions and customs, derived from certain fixed principles of reason, directed to certain fixed objects of publick good.” The idea that the object of a constitution is the common good dates to antiquity. When Aristotle wrote Politics around 350 BCE, forming its letters by pressing a pen made of reed upon papyrus made from the soaked and woven pith of the stalks of a sedge that grew on the bank of a river, he divided constitutions into those “which aim at the common advantage” and “are correct and just” and “those which aim only at the advantage of the rulers” and “are deviant and unjust.”  Most were unjust.

Many legal instruments combine the constituting of governments with the assigning of territory and the proclaiming of laws. Whether to call these records constitutions is debatable; some are more like treaties; others are more like criminal codes. The prophet Muhammad drew up the now-­lost Ṣaḥīfa in 622 CE, establishing a pact between certain Muslims and the Jews of Medina. Sometimes scholars translate the Arabic word s.ah.ı¯fa as “scripture,” sometimes as “constitution.” In 1215 CE, outside London, King John of England signed a parchment made of sheepskin known as the Magna Carta, the great charter, guaranteeing his noblemen “all the liberties written out below, to have and to keep for them and their heirs.” Meant to last, it was almost immediately annulled, even though later generations of English politicians liked to call it England’s “ancient constitution.”

Other ancient constitutions have lasted longer. About 1450 CE, Dekanawidah, the Great Peacemaker, and delegates from the Five Nations of the Iroquois, or Haudenosaunee—­Seneca, Cayuga, Oneida, Onondaga, and Mohawk—­adopted an agreement known as the Gayanashagowa or Great Law of Peace and often referred to as a constitution, which they recorded on wampum, a light and dark pattern of shells strung together. It begins, “I plant the Tree of Great Peace.”  It was meant to grow, root and branch.

Committing a constitution to writing offers stability…but it also presents a problem: how is a government established by a written constitution to be altered except by its destruction?

The revolutionary idea that the ruled rather than the rulers decide the rules emerged only haltingly. In 1765 Catherine the Great, the Empress of Russia, began drafting the Nakaz, or constitution, to proclaim her sovereignty and guarantee her subjects liberty and equality. To consider it, she called for an assembly of 564 elected representatives—­elected by everyone, including women and peasants, with fifty-­four seats allotted for Muslims—­to meet in Moscow in 1767. The course of human events turned upside down in 1776—­the ruled became their own rulers—­when the United States declared independence and stated what Thomas Jefferson described as self-­evident truths: “that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.—­That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed,—­That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it.” Four years later the people of the Commonwealth of Massachusetts ratified a new constitution, written by John Adams, whose aim, as Adams wrote, was to establish “a government of laws and not of men.”  They wrote that constitution down, ink on parchment. It is still in force: it is the law. It also still exists, in a museum in Boston, sealed in a double-­paned bulletproof glass case filled with a mix of argon and helium gas to preserve it from the forces of decay: water and oxygen and sunlight.

All written constitutions contain unwritten elements, as invisible as those glass-­boxed gases. “The sacred rights of mankind are not to be rummaged for, among old parchments, or musty records,” Alexander Hamilton advised seekers in 1775. “They are written, as with a sunbeam, in the whole volume of human nature.” A written constitution’s power comes not from the words themselves but from the life breathed into it, or what Montesquieu called “the spirit of laws,” ethereal and even enchanted. James Madison warned that early state constitutions—­the first was written in 1776—­offered little more than “parchment barriers” to those who would seek to defy them. “The Constitution of a country is not the paper or parchment upon which the compact is written,” John Quincy Adams agreed. “It is the system of fundamental laws, by which the people have consented to be governed, which is always supposed to be impressed upon the mind of every individual, and of which the written and printed copies are nothing more than the evidence.”

All the same, a written constitution is a different creature from an unwritten one. Committing a constitution to writing offers stability, a form of endurance akin to inheritance, but it also presents a problem: how is a government established by a written constitution to be altered except by its destruction?

Amend your ways
The U.S. Constitution drew from ancient ideas, but it was also something new and truly revolutionary, an eighteenth-­century invention: a body of fundamental law drafted and ratified by representatives of an invented polity—­a constituency—­known as the People, binding them to their government by an act of consent. It was meant to transcend ordinary law by establishing fundamental principles, structures, powers, and rights. Printed, copied, and circulated among an extraordinarily literate population, the Constitution executed a covenant and allowed, too, for the exertion of power over vast distances. The U.S. Constitution is not a list of commandments, like the Code of Hammurabi or the laws Moses found etched on tablets, engraved in stone, a monument. Nor is it a form of scripture.

Unlike all of these, but very much like the Massachusetts Constitution of 1780, which has been amended more than a hundred times, it was meant to be revised, updated, and improved. The eighteenth century was an age not only of revolution and empire but also of enlightenment animated by the idea of progress—­political, scientific, economic, technological, and moral. By far the most radical innovation of the U.S. Constitution, and of state constitutions, was the provision they made for their own repair and improvement by the people themselves, to the end it may be a government of laws and not of men.

This mechanism for improvement is called amendment. 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. 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.)

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Excerpted from We the People: A History of the U.S. Constitution by Jill Lepore. Copyright © 2025 by Jill Lepore. Used with permission of the publisher, Liveright Publishing Corporation, a division of W. W. Norton & Company, Inc. All rights reserved. We the People has been shortlisted for the 2026 Cundill History Prize.