I congratulate Jill Lepore on the award of this year’s Pulitzer Prize in history. She seems like a nice person, she writes very well, and I learned some interesting things from the book that earned her the prize, We the People: A History of the U.S. Constitution. But as I said in my review of the book in the March issue of National Review, it is not, in the final analysis, a good book. Lepore’s engaging narrative history is marred throughout by a silly polemic against originalism, an interpretive approach to the Constitution that she shows no sign of really understanding. And her skewed reading of America’s legal history — peppered, for instance, with repeated denials that women were even citizens before they gained suffrage — should make it difficult for any historically informed reader to take the book seriously.
Perhaps the Pulitzer jury may be excused for its flawed judgment. As Michael Rappaport noted on X, the members leaned strongly to the left, as does Lepore, and (I would note) there doesn’t appear to be a single legal historian in the bunch.
Academic presses often send out manuscripts to expert reviewers (though for an established author, they might not bother), but it’s apparent that Lepore’s commercial publisher, Liveright, did not. For We the People is riddled with small historical errors, mistaken readings of sources, and the occasional howler. I noted in my review that Lepore “wrongly describes what was decided in the Slaughterhouse Cases (1873) and the sugar-trust case of 1895.” How so? Regarding Slaughterhouse, she writes that the Court ruled that “the privileges and immunities clause of the Fourteenth Amendment was binding only on the federal government, not on the states” (p. 278) — a statement that would earn a failing grade for any law student. As for the sugar-trust case, E. C. Knight, Lepore writes that the Court held “that refining [sugar] is a local process” — true — “and that federal control over interstate commerce was ‘not intended by the framers of the Constitution’” (p. 325) — ridiculously wrong.
Lepore, I’m afraid, just can’t be trusted with a source. In an often interesting discussion of Francis Lieber, she portrays him as opposed to “those who would defer to the framers and their original intent” (p. 225), but the lines she then quotes from Lieber concern the need to amend the Constitution formally as necessary; he does not advocate abandoning the original meaning of the Constitution by pretended “interpretations.”
Some of Lepore’s errors can be caught by anyone with access to basic references. She tells us, “The term feminist was coined in 1913” (p. 353), and a page later that the phrase “birth control” was “coined by Margaret Sanger.” Neither of these is true. Later, in a parenthetical aside (p. 522), she avers that in 1977 the population of Alaska was only 10,000 people, a figure that should be multiplied by approximately 30.
In discussing the presidential election litigation of 2000, Lepore tells us that George W. Bush’s “brother Jeb, as governor, had certified the results as a victory for Bush” (p. 560) — a flat falsehood: The job of certifying the election belonged to the independently elected secretary of state. On the same page, she tells us that Justice Scalia is “widely thought to have been behind the majority’s opinion” in Bush v. Gore. No intelligent observer thinks anything of the kind. The opinion of the Court, an unsigned per curiam, was obviously the work of Justices O’Connor and Kennedy, since Chief Justice Rehnquist (joined by Scalia and Thomas) wrote a concurrence that urged completely different grounds for deciding the case.
Here’s one for the basic fact-checking department: On page 565 of her book, she describes Judge J. Harvie Wilkinson of the Fourth Circuit, a critic of the Heller ruling on the Second Amendment, as retired — which he was not then and still isn’t.
Little bloopers like this appear throughout We the People. But I’ll close with my favorite. On page 313, Lepore refers to “Vice President William Howard Taft.” In a distinguished career that included the offices of solicitor general, circuit judge, governor of the Philippines, secretary of war, president, and chief justice of the United States, Taft somehow managed never to be vice president. How this got past editors is anyone’s guess.