The Issue Lies with Congress
The article profiling Professor Jill Lepore’s book about the Constitution [“Frozen in Time,” Fall 2025] suffers from two problems. First, its premise — namely, that the Constitution is effectively unamendable — is facially false. It’s been amended 27 times. But the bigger flaw — a hypocrisy of sorts — is that for decades, so long as the Supreme Court was not controlled by conservatives, academia had little issue with the Constitution’s “effective unamendability.” Until relatively recently, academia — meaning the left — was content, if not comfortable, with the SupremeCourt filling gaps and interpreting the Constitution. But now, lo and behold, with conservatives firmly established, it’s a problem, apparently requiring the old parchment be scuttled altogether.
If Professor Lepore — or anyone — is genuinely concerned about the common man being left out of our democratic process, the issue is not with our Constitution, but with our Congress. As Harvard alumnus and former Nebraska Sen. Ben Sasse once put it, Congress has “self-neutered” itself, effectively abdicating its power to bureaucrats in the alphabet soup of agencies. He’s right.
The common man elects — and can toss — legislators, but if they don’t actually legislate, then the common man is left out of the process. The common man has no chance against industry lobbyists writing obscure regulations for agencies that effectively serve as law. It is “law-making” done in backrooms without votes or accountability.
So, for those actually interested in the common man being alienated, look to Congress, not the Constitution.
William Choslovsky ’94
Chicago
On State Supreme Courts
As King Solomon, the wisest of all men, wrote in Ecclesiastes, “there is nothing new under the sun.”
If you go back to 1977, you will find an article in the Harvard Law Review in which Justice William Brennan pointed out that there are substantive rights contained within state constitutions as to which state courts are the final arbiters.
Apart from that, I have a few critiques of your article [“The Courts of Last Resort,” Spring 2025].
Your map of how state supreme court justices are selected may reflect whether a ballot lists a candidate’s party, but it certainly does not reflect reality on the ground. Anyone who contends that the [spring 2025] election in Wisconsin was nonpartisan has been sleeping under a rock.
In addition, I find it ironic that you quote one of the justices of the Colorado Supreme Court to the effect that they should be responsive to the law rather than to the people — a proposition hard to contest — while at the same time, you almost reflexively decry an absence of racial and gender diversity on state supreme courts. (To the argument that judges will bring important different perspectives based on gender or skin color, my response is that within the pool of individuals at that level, these differences pale in importance by comparison with other elements of viewpoint diversity, knowledge, and intelligence. If you have any doubt, look at how liberals have vilified Justice Thomas for decades and how Justices Kagan, Sotomayor, Breyer, and Jackson, with very different personal backgrounds, so often have agreed with each other.)
I do appreciate the point that state supreme courts have more professional diversity than one finds in the federal judiciary, which I contend would be greatly improved if the appellate courts were stocked with lawyers who had financial and transactional experience, especially since a great deal of the workload of the federal courts is statutory analysis. (Full disclosure: I am a tax lawyer.)
Robert Kantowitz ’79
Lawrence, New York
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