Constitution and Government

  • Development Incentives That Make Sense
    on September 18, 2020 at 17:28

    The lesson from New York City’s experience with Amazon: There are smarter ways to attract businesses than just dangling tax breaks.

  • Data and the Human Side of Criminal Justice
    on September 18, 2020 at 17:28

    As a project in Long Beach demonstrates, treating people as individuals rather than as statistics can yield big benefits.

  • The Problem With One-Stop Government
    on September 18, 2020 at 17:28

    It was a big improvement for permitting and other forms of service delivery, but it’s already outdated. The new goal should be no-stop government.

  • Maps That Can Guide a Changing City
    on September 18, 2020 at 17:28

    The evolving technology of ‘digital twins’ can provide a dynamic, real-time view of the urban environment and the impact of ideas for improving it.

  • Participatory Budgeting: A Powerful Civic Education Tool
    on September 18, 2020 at 17:28

    In expanding its program that lets residents vote on public spending, New York City is enlivening democracy and engaging the electorate.

  • Government Employment for Those Who Need a Leg Up
    on September 18, 2020 at 17:28

    An innovative apprenticeship program is working to bring some of Los Angeles’ neediest residents into the city’s workforce.

  • Bringing Market Forces to the Transportation Equation
    on September 18, 2020 at 17:28

    Protecting providers from competition is the enemy of efficiency and integrated mobility. It’s an issue that New York City’s congestion pricing will address.

  • The Art of Governing Through Questions
    on September 18, 2020 at 17:28

    Socrates had it right: Dealing with the problems public leaders face requires knowing how and what to ask.

  • A Permanent Place for Data Analytics
    on September 18, 2020 at 17:28

    In codifying its innovative operation into law, New York City has provided a useful guide for other localities.

  • How Data Can Drive Performance for Social Services
    on September 18, 2020 at 17:28

    A Colorado agency is using the approach in an unusual way: to orchestrate the efforts of service-delivery partners.

  • North Carolina AG joins other states seeking continued waivers for food stamps
    by By Nyamekye Daniel | The Center Square on September 18, 2020 at 21:46

    (The Center Square) – North Carolina Attorney General Josh Stein is among 22 state attorneys general calling on President Donald Trump’s administration to waive burdens associated with processing Supplemental Nutrition Assistance Program (SNAP) applications.

  • Seattle reviewing more than 100 pending cases of alleged police misconduct during protests
    by By Tim Gruver | The Center Square on September 18, 2020 at 21:30

    (The Center Square) — More than 110 days after protests against police brutality began in Seattle, the city’s Office of Police Accountability on Friday released five completed reports of alleged misconduct by police officers.

  • State investment saves Tennessee businesses 300% tax increase in 2021
    by By Vivian Jones | The Center Square on September 18, 2020 at 21:20

    (The Center Square) – Tennessee employers would have paid at least 300% higher unemployment tax premiums in 2021 if state officials had not allocated COVID-19 relief funds to the state’s unemployment trust fund early, according to projections released by the…

  • Sununu to begin issuing orders on law enforcement reforms
    by By Kim Jarrett | The Center Square on September 18, 2020 at 21:18

    (The Center Square) – New Hampshire Gov. Chris Sununu’s road map to implementing the recommendations of the New Hampshire Commission on Law Enforcement Accountability, Community and Transparency includes a long list of executive orders the governor says he plans to…

  • Illinoisans building homes despite a lumber shortage
    by By Kevin Bessler | The Center Square on September 18, 2020 at 21:12

    (The Center Square) – A dearth of homes for sale in Illinois has sparked a modest building boom.

  • Senate committee thwarts attempt to provide more transparency for Virginia criminal records
    by By Tyler Arnold | The Center Square on September 18, 2020 at 21:02

    (The Center Square) – Legislation that would have made criminal investigatory files public record subject to the Virginia Freedom of Information Act failed to advance in a Senate committee Friday.

  • Pennsylvania jobless rate continues to decline, but remains above national average
    by By Steve Bittenbender | The Center Square on September 18, 2020 at 21:01

    (The Center Square) – Pennsylvania’s unemployment rate for August was 10.3%, according to information released Friday by the state’s Department of Labor and Industry.

  • To my Jewish readers, Happy New Year!
    by Keith Koffler on September 18, 2020 at 20:57

    To all my Jewish readers, shana tova, a very happy Jewish New Year. I hope that your Rosh Hashanah is a pleasant one. May God grant you a wonderful year ahead. Keith

  • Funding available for Maine lobster fishermen affected by China’s tariffs
    by By Sarah Downey | The Center Square on September 18, 2020 at 20:54

    (The Center Square) – Lobster fishermen have started applying for a portion of a $527 million relief program recently unveiled by the U.S. Department of Agriculture (USDA) to help offset losses incurred due to China’s new tariff policies.

  • Senior Biden campaign aide was part of racist hacking group
    by Keith Koffler on September 18, 2020 at 20:52

    I imagine much of the press will dismiss this as an aberration. According to the Washington Examiner: A senior cybersecurity adviser to Joe Biden’s presidential campaign spent years affiliating with a hacking organization and boasted on a personal blog about breaking into her neighbor’s computers. Jackie Singh, who joined the Biden campaign in July as … Senior Biden campaign aide was part of racist hacking group Read More »

  • Utilities lobby to change Florida’s solar net metering rule
    by By John Haughey | The Center Square on September 18, 2020 at 20:48

    (The Center Square) – They didn’t come to bury Florida’s net metering program, only to appraise it for the first time since it was adopted more than a decade ago.

  • Democrats: Investigate the investigators of the investigation
    by Keith Koffler on September 18, 2020 at 20:44

    Looks like U.S. Attorney John Durham must be close to some pretty dramatic findings and the investigation of the Trump campaign’s alleged ties to Russia. Because the Democrats are getting very nervous. According to the Washington Examiner: Top House Democrats called for Justice Department Inspector General Michael Horowitz to investigate Attorney General William Barr and … Democrats: Investigate the investigators of the investigation Read More »

  • Constitution Day: Virtual Student Town Hall with Justice Neil M. Gorsuch
    by National Constitution Center on September 18, 2020 at 20:33
  • Big 10 football will resume, but still faces legal challenges
    by By Bruce Walker | The Center Square on September 18, 2020 at 20:13

    (The Center Square) – Some of this fall’s biggest battles may end up off the gridiron once Big Ten football resumes Oct. 23.

  • University of Washington grad student sues alma mater over lost tuition costs amid COVID-19
    by By Tim Gruver | The Center Square on September 18, 2020 at 20:00

    (The Center Square) — A graduate student is demanding reimbursement from the University of Washington for allegedly overcharging students during the onset of the COVID-19 pandemic.

  • New Jersey lawmakers advance bill that would ban single use plastic, paper bags
    by By Kim Jarrett | The Center Square on September 18, 2020 at 19:55

    (The Center Square) – A bill advanced by New Jersey’s Assembly Appropriations Committee banning single-use carry out bags and containers includes plastic bags and polystyrene products would also eliminate single use paper bags.

  • Glynn County police referendum puts spotlight on Georgia’s home rule powers
    by By Nyamekye Daniel | The Center Square on September 18, 2020 at 19:54

    (The Center Square) – A recent ruling by a Georgia judge has pushed conflict over constitutional power in the state to the forefront.

  • 24 counties in Illinois at warning level for spread of COVID-19
    by By Brett Rowland | The Center Square on September 18, 2020 at 19:34

    (The Center Square) – State health officials reported on Friday that 24 counties in Illinois were at a warning level for the spread of COVID-19.

  • Witnesses say Pennsylvania’s upgraded unemployment compensation benefits system unlikely to be ready by Oct. 5
    by By Todd DeFeo | The Center Square on September 18, 2020 at 19:18

    (The Center Square) – A multimillion-dollar, yearslong project to modernize Pennsylvania’s unemployment compensation benefits system is unlikely to be ready for its Oct. 5 go-live date, witnesses told members of the House Labor & Industry Committee.

  • Kentucky lawmakers concerned new food fee structure will hurt farmers
    by By J.D. Davidson | The Center Square on September 18, 2020 at 19:05

    (The Center Square) – A proposed new fee structure for food manufacturers and food establishments in Kentucky has some lawmakers concerned for small farmers.

  • Indiana small businesses offered grants during pandemic
    by By J.D. Davidson | The Center Square on September 18, 2020 at 19:02

    (The Center Square) – The city of Monticello can help local small businesses that continue to struggle during the COVID-19 pandemic with grants from the Indiana Office of Community and Rural Affairs.

  • Ohio schools report low cases of COVID-19 during beginning of school year
    by By J.D. Davidson | The Center Square on September 18, 2020 at 18:59

    (The Center Square) – With the majority of Ohio school students back in the classroom, at least on a hybrid learning model, new data show COVID-19 cases related to school districts is relatively low.

  • As unemployment trust fund shrinks, Louisiana lawmakers searching for ways to avoid tax hikes on businesses
    by By David Jacobs | The Center Square on September 18, 2020 at 18:50

    (The Center Square) – Louisiana legislators are hoping to find a way to avoid the higher business taxes and fees that could kick in next year to replenish the state unemployment insurance trust fund.

  • Three Ohio school districts win $42 million judgment from state
    by By J.D. Davidson | The Center Square on September 18, 2020 at 18:45

    (The Center Square) – An Ohio judge awarded three state school districts $42 million, saying the Ohio Department of Education unlawfully deprived funding.

  • Alexis Coe and Jeffrey Rosen on George Washington and the Constitutional Convention
    by National Constitution Center on September 18, 2020 at 18:17

    In this Scholar Exchange, we take a close look at the events that led to the Constitutional Convention in Philadelphia in the summer of 1787, including the weakness of the Articles of Confederation, Shay’s Rebellion, and the growing need for a new national government. Joining Jeffrey Rosen, president and CEO of the National Constitution Center, is Alexis Coe, New York Times bestselling author and historian, to examine how America remembers our first president. Coe, only the third woman to write a complete Washington biography, reexamines some of the common and unfamiliar stories of our first president, as described in her new book, a New York Times bestseller, You Never Forget Your First: A Biography of George Washington.

  • Video || Today’s Joebalism
    by Keith Koffler on September 18, 2020 at 17:46

    He’s reading. And yet . . .

  • Video || The tolerant left tries to steal a Trump flag from Trump supporters
    by Keith Koffler on September 18, 2020 at 17:28
  • FARRELL: Evidence Of Criminal Human Activity Causing Wildfires
    by fvanloon on September 18, 2020 at 14:21

    From Chris Farrell’s Op-Ed for The Daily Caller: As wildfires rip through the Pacific states, environmentalists and liberal politicians are blaming man-caused global warming. But the particular severity of this year’s fires may be traced to a different cause: arson. There’s evidence of criminal human activity causing forest fires. Over a dozen people have been charged recently The post FARRELL: Evidence Of Criminal Human Activity Causing Wildfires appeared first on Judicial Watch.

  • San Francisco State University to Host Terrorists
    by fvanloon on September 18, 2020 at 14:03

    A webinar event billed as “Whose Narratives? Gender, Justice, & Resistance: A conversation with Leila Khaled” is scheduled for September 23, 2020. San Francisco State University Professor Rabab Abdulhadi and Professor Tomomi Kinukawa are hosting the open classroom Internet event described as: “a historic roundtable conversation with Palestinian feminist, militant, and leader Leila Khaled, followed The post San Francisco State University to Host Terrorists appeared first on Judicial Watch.

  • On Violence and Politics
    by Guest Blogger on September 18, 2020 at 13:30

      For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Khiara M. Bridges  Jack Balkin’s The Cycles of Constitutional Time is stunningly expansive and wholly wonderful. My analysis focuses on just a sliver of the massive theoretical undertaking that Balkin accomplishes in the book. Here, I will train my focus on Balkin’s understanding of “constitutional crisis.” Balkin argues that although the past four years have been equal parts surreal, chaotic, and maddening, they have never laid claim to a constitutional crisis. According to Balkin, we did not enter a constitutional crisis when the Trump administration ineptly rolled out its travel ban in early 2017 and created impromptu detention camps in airports across the nation. Neither did we enter a constitutional crisis in mid-2017 when Trump fired the director of the FBI, James Comey, who appeared to be competently investigating claims that Trump had colluded with Russia to secure an election victory. Balkin contends that none of the numerous episodes in the past four years that have convinced scores of reasonable people that this country is on its last legs have been a constitutional crisis. Balkin’s conclusion, of course, follows directly from his definition of constitutional crisis. Balkin defines a constitutional crisis as an event that demonstrates that we have “reach[ed] a point in which the Constitution is about to fail, or has already failed, at its central task – of making politics possible” (39). He identifies three moments in which constitutional failure, and a constitutional crisis, occurs: The first is when political officials—including, most distressingly, the President—“simply announce that they will no longer abide by the rules of the Constitution. Political leaders—or military leaders—might argue that things have gotten so bad and the country has strayed so far off course that they can no longer possibly stay within the boundaries of the Constitution.” (38) This, of course, has not happened in the last four years. Indeed, this type of constitutional crisis has rarely happened in the history of the nation because it requires more than a violation of the Constitution by a political official. Rather, in Balkin’s formulation, the official also has to admit that he is violating the Constitution. Further, no lawyer has to be willing to argue that the official’s action does not amount to a constitutional violation. In Balkin’s words, this iteration of constitutional crisis is a rarity because “lawyers are usually able to come up with creative interpretations so that politicians can assert that they are being faithful to the Constitution; at that point the dispute becomes a conflict over interpretation that is settled either in the courts or through the give and take of ordinary politics” (39). So, Trump’s having avoided a constitutional crisis during his presidency is due to his willingness to lie (and lie and lie) about having violated the Constitution, in some cases, and his utter obliviousness as to what the Constitution requires, in other cases. And, of course, if ever he is forthright about having broken a rule or five, there is always an apologist with a JD who is willing to argue otherwise. According to Balkin, the second type of constitutional failure occurs “when everybody thinks that they are following the Constitution, and the result is disaster” (39). This failure occurs when the Constitution demands that people act in a way (or fail to act at all), and disaster ensues. It also occurs when people believe that the Constitution offers no guidance for how to deal with an issue, and disaster ensues because no one deals with the issue. Balkin notes that, due to the expansiveness of the human imagination, this type of constitutional crisis almost never happens. “When people find themselves in a predicament … they will usually be able to reinterpret the Constitution to get out of the predicament” (39). The third type of constitutional crisis that Balkin identifies is the one that is most interesting to me. He writes that this iteration of constitutional crisis occurs when people disagree about what the Constitution means, and they disagree so strongly that they do not simply confine themselves to legislative votes and litigation, or to op-eds, tweets, press conferences, and protests. Instead, they take to the streets and riot. They engage in violence. They engage in secession. Or they engage in civil war. Now that’s a constitutional crisis. The Constitution has failed to keep political struggle within its proper boundaries—that is to say, within the boundaries of political competition set by the Constitution. (39). I’m interested here in the categories that Balkin draws. Balkin identifies a category of miscellanea that do not evidence crisis, but rather ordinary politics: “legislative votes and litigation,” “op-eds, tweets, press conferences”… and also “protests.” And there is another category of miscellanea that do not evidence ordinary politics, but rather constitutional crisis: “secession” and “civil war,” but also “riot[s]” and “violence.” These mutually exclusive categories prompt two sets of questions. First: what is a “protest”? What is a “riot”? What is “violence”? Where is the line between “protests” and “riots”/“violence”? Second: if something is not ordinary politics—when it evidences constitutional crisis—what exactly is its relationship to politics? Is it outside the realm of the political?             Early in summer 2020, a white police officer in Minneapolis, Derek Chauvin, kneeled on the neck of George Floyd, a black man, for close to nine minutes. Floyd died. Many people—especially black people—understood Chauvin’s execution of Floyd to be a synecdoche for the brutal racial hierarchy that currently exists in the United States. They believed that, surely, the Constitution does not condone racial oppression. They took to the streets to demand the dismantling of the various systems that kill black people and reduce the quality of their lives. They stayed in the streets for days that became weeks that became months. In the course of those days, weeks, and months, property was destroyed. Lives were also lost. The events made some people long nostalgically for the days when demonstrations over racial injustice took the form of a professional football player quietly taking a knee during the national anthem.               So, Balkin dichotomizes “protests” and “riots”/”violence.” I am ultimately uninterested in inquiring into Balkin’s understanding of “riot” because “riot” is usually a conclusion. It is the user’s way of condemning the thing being described. Compare Fox News’ characterization of this summer’s demonstrations with that of, say, the Intercept. The detractor’s “riot” is the empathizer’s “uprising” or “rebellion.”             More interestingly, Balkin situates “protests” in opposition to “violence.” What then is “violence”? We have to know what “violence” is so that we can know when we have left the world of “protest” and ordinary politics and arrived in a world of constitutional crisis. When people who have taken to the streets in outrage over an inhumane racial hierarchy smash windows out of buildings, is that “violence”? When they set fire to a building, or a police car, is that “violence”? I feel confident that when they kill, that is “violence.” My question, instead, is about the demonstrations that have resulted in no loss of life, but rather in loss of property. Are those demonstrations not “protests,” but rather “violence”?             I should out myself and admit that I tend to have a fairly capacious understanding of violence. I believe that poverty is violence. I believe that putting millions of people in cages as “punishment” is violence. I believe that allowing black people to die from pregnancy-related causes at three to four times the rate of their white counterparts is violence. I believe that passing immigration laws that render millions of people “illegal” and, therefore, exploitable is violence. I see violence everywhere in an unjust social order. Consequently, I am comfortable concluding that demonstrations against racial injustice that result in loss of property are “violent.” As “violent,” then, what is their relationship to the political? According to Balkin, the violence that characterizes the demonstrations banishes them from the realm of ordinary politics. So, what are they? Are they extraordinary politics—a category of politics that Balkin does not theorize in his book? My worry is that Balkin imagines that because some demonstrations have been violent, they are no longer part of politics. Instead, they are outside the ambit of political discourse.  I believe that the demonstrations that we have witnessed this summer evidence a constitutional crisis. They indicate a constitutional crisis because, in Balkin’s words, “the constitution has not channel[ed] disagreement and dispute into peaceful solutions” (40). Activists for racial justice have engaged in all manner of peaceful, ordinary politics. We have pursued legislation and litigation. We have written op-eds. We have tweeted. (Oh, how we have tweeted.) We have held press conferences. We most certainly have protested. But, people of color are still being killed. Balkin likely would agree with me up to this point. But, where our agreement ends, I believe, is with my conclusion that the demonstrations, albeit violent, remain political. They are a form of political discourse—pursued as a last resort by people whom ordinary politics have failed. To arrive at this conclusion is to conclude that violence has a place in politics. This is a conclusion that will make many uncomfortable. But, hopefully, this discomfort pales in comparison with the discomfort produced by simply knowing that one lives in a country that has fallen so embarrassingly short of the commitments to equality contained in its Constitution. Khiara M. Bridges is Professor of Law at UC Berkeley School of Law. You can reach her by e-mail at khiara.m.bridges@berkeley.edu

  • 2020 Liberty Medal Post-Ceremony Conversation with Jeffrey Rosen
    by National Constitution Center on September 18, 2020 at 03:24

    2020 Liberty Medal Ceremony: https://www.youtube.com/watch?v=Hzk4HWZiQoc Women and the Constitution initiative: https://constitutioncenter.org/women-and-the-constitution The Ginsburg Tapes podcast: http://ginsburgtapes.com/ United States v. Virginia: https://www.oyez.org/cases/1995/94-1941 Weinberger v. Wiesenfeld (1975): https://www.oyez.org/cases/1974/73-1892 Burwell v. Hobby Lobby Stores (2014): https://www.oyez.org/cases/2013/13-354 Ledbetter v. Goodyear Tire and Rubber Company (2007): https://www.oyez.org/cases/2006/05-1074 Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc. (2000): https://www.oyez.org/cases/1999/98-822

  • Trump Schedule || Friday, September 18, 2020
    by Keith Koffler on September 18, 2020 at 01:18

    Noon || Receives his intelligence briefing 3:45 pm || Departs White House 5:55 pm CT ||Arrives at Bemidji, Minnesota 6:00 pm CT || Makes a campaign appearance; Bemidji, Minnesota 7:25 pm CT || Departs Bemidji, Minnesota 11:15 pm || Arrives White House All times Eastern except as noted

  • 2020 Liberty Medal Honoring Justice Ruth Bader Ginsburg
    by National Constitution Center on September 17, 2020 at 22:25

    The National Constitution Center awards its 32nd annual Liberty Medal to the Honorable Ruth Bader Ginsburg, Associate Justice of the Supreme Court of the United States, for her efforts to advance liberty and equality for all. The video tribute, produced by NBCUniversal, features remarks and performances from prominent celebrities, musical artists, activists, and close friends of the justice. The Liberty Medal Ceremony is the pinnacle of the National Constitution Center’s yearlong celebration of Women and the Constitution honoring the 100th anniversary of the 19th Amendment, which granted women the right to vote.

  • Video || Biden confuses his sign language interpreters
    by Keith Koffler on September 17, 2020 at 21:18

    You have to check this out . . . this cannot be an easy job when it comes to Biden.

  • Live from the Story of We the People: A Virtual Question and Answer Session with our Education Team
    by National Constitution Center on September 17, 2020 at 20:17
  • AOC believes she can push Biden to the Left after he is elected
    by Keith Koffler on September 17, 2020 at 18:12

    I agree with Alexandria Ocasio Cortez. “I think overall, we can likely push Vice President Biden in a more progressive direction,” she said. Yes, they certainly will. But she makes clear now is not the time, because those policies won’t get him elected. “We will hash those out,” she said. “Our main priority is to … AOC believes she can push Biden to the Left after he is elected Read More »

  • Judicial Watch: Obama State Department Official Notes Russians’ Trolling of Joe Biden on Hunter Biden Corruption Allegations
    by fvanloon on September 17, 2020 at 17:09

    Calls Burisma ‘the Gift that Keeps on Giving’  (Washington, DC) – Judicial Watch announced today that it received three pages of records from the State Department that include a January 17, 2017, email from George Kent, the Obama administration’s deputy assistant secretary of state in charge of Ukraine policy, which was copied to then-U.S. Ambassador The post Judicial Watch: Obama State Department Official Notes Russians’ Trolling of Joe Biden on Hunter Biden Corruption Allegations appeared first on Judicial Watch.

  • Nearly Two Decades after 9/11 States Finally Comply with Driver’s License Security Law
    by Irene on September 17, 2020 at 15:20

    It took nearly two decades after the worst terrorist attack on U.S. soil for every state to finally comply with a federal law requiring minimum security standards for driver’s licenses and identification cards. The  measure, known as the REAL ID Act, was passed by Congress after 9/11 to establish a more secure national system less The post Nearly Two Decades after 9/11 States Finally Comply with Driver’s License Security Law appeared first on Judicial Watch.

  • Video || The “experts” said moving US embassy to Jerusalem would destroy chances for peace
    by Keith Koffler on September 17, 2020 at 14:53

    “You’d have an explosion. An absolute explosion in the region,” said former Secretary of State John Kerry. Weakness gets you nowhere with these regimes. Shows of strength bring people to the bargaining table. President Trump told the Arab world with his strong support of Israel that they weren’t going to get anywhere with stuff like … Video || The “experts” said moving US embassy to Jerusalem would destroy chances for peace Read More »

  • Trump accused again of sexual assault
    by Keith Koffler on September 17, 2020 at 14:45

    According to NBC News: Former model Amy Dorris alleged in a new interview that President Donald Trump sexually assaulted her at the U.S. Open tennis tournament in New York in 1997 by forcing his tongue down her throat and groping her body. “He just shoved his tongue down my throat and I was pushing him … Trump accused again of sexual assault Read More »

  • Watch the National Constitution Center’s Inspiring Reading of the Constitution’s Preamble!
    by National Constitution Center on September 17, 2020 at 14:34

    Join President and CEO Jeffrey Rosen for a reading of the U.S. Constitution’s famous “We the People” Preamble and a look at the Center’s Interactive Constitution.

  • Live from Signers Hall: A Virtual Question and Answer Session with our Education Team
    by National Constitution Center on September 17, 2020 at 14:20
  • Constitution Day 2020 Live Preamble Reading
    by National Constitution Center on September 17, 2020 at 13:35

    National Constitution Center president and CEO Jeffrey Rosen leads members of the Center’s staff in a live reading of the Preamble on Constitution Day 2020.

  • Finding a way out of constitutional rot
    by Guest Blogger on September 17, 2020 at 13:30

    For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Julie C. Suk Jack Balkin’s Cycles of Constitutional Time is the bearer of bad news: we are living through a period of severe constitutional rot, characterized by peak polarization and conservative dominance. The federal judiciary is deepening the rot, instead of providing an antidote. Balkin’s account of constitutional history, particularly the dynamics between presidential regimes and the federal judiciary, leads him to cast polarization and constitutional rot as stages of a cycle that, in the past, produced renewal and democratic innovation.  Balkin thus concludes that a path out of this constitutional rot, by way of political mobilization and reform movements, is on the horizon. But the story of constitutional rot in this incisive and engaging book leaves me less confident than the author that the “malaise is only temporary” (3) and soon to be surmounted.  In what follows, I will explain why, and further suggest that the Constitution itself contributed to what Balkin calls constitutional rot over time, making it doubtful as to whether a new constitutional order can emerge without a more thorough redesign of our constitutional institutions. Balkin argues that constitutional rot, while unpleasant, is nothing new.  Polarization moves in cycles, and this nation experienced a cycle when a period of high polarization began at the end of the 19th century, with a sharp rise in inequality during the Gilded Age. Inequality “became so pronounced that public opposition eventually overwhelmed the political blockages to redistribution and reform” (36). This cycle of polarization gave way to the Progressive Era, which set off a process of depolarization, culminating in the constitutional renewal achieved by the New Deal. Balkin insists that it’s a cycle, rather than a “constitutional crisis” – in which the continued existence of the Constitution is itself under serious threat. Balkin defines constitutional rot as “the decay of those features of a constitutional system that maintain it both as a democracy and as a republic” (44). The joint pursuit of the public good disappears, and the country functions in political darkness as an oligarchy. “I promise you, this eclipse is purely temporary,” Balkin writes (65). But the fact that our constitutional democracy managed to survive its past life-threatening illnesses does not render it immortal, nor does it render renewal feasible. Renewal through depolarization and judicial reform may have fallen further out of reach in the intervening time.  Balkin identifies “four horsemen” that have caused constitutional rot in the United States: political polarization, economic inequality, loss of trust, and policy disasters. Balkin suggests that the Founding Fathers were aware of these future threats and wrote a Constitution to “limit the cycle of constitutional rot” (47). But the Founders also wrote provisions into the Constitution that spawned, rather than limited, constitutional rot. Pro-slavery forces entrenched their interests in the Constitution, as evidenced by Article V’s provision that made the slave trade unamendable until 1808 as well as the fugitive slave clause. Even though these provisions, and the three-fifths clause, were superseded by the Thirteenth and Fourteenth Amendments, the pro-slavery forces also entrenched their interests in the institutional design of our political institutions, which continued to give disproportionate political power to the states that depended on slave labor, even after the Thirteenth Amendment abolished slavery. The Constitution guaranteed that every state would have two Senators regardless of population, and immunized the states’ equal representation in the Senate from the ordinary process of amendment in Article V, requiring each state to consent to changing its equal representation in the Senate. The Electoral College was also enshrined to protect states’ control over presidential selection, which undermined democracy by entrenching slaveholding states’ disproportionate influence. Balkin obliquely criticizes the electoral college several times throughout the book by pointing out that Trump’s electoral college victory diverged from the popular democratic vote by the people. While he clearly regards Trump’s election and administration as a manifestation of constitutional rot, and anticipates the reasonable possibility that the electoral college will deliver yet another Trump victory this November, Balkin does not characterize the electoral college or other entrenched undemocratic constitutional provisions as enablers of constitutional rot. Furthermore, Balkin identifies the Senate’s “constitutional hardball” to prevent Obama’s appointment of Merrick Garland to the Supreme Court upon Justice Scalia’s death as another major indication of constitutional rot. But he does not discuss the undemocratic composition of the Senate required by the Constitution as an underlying enabler of Mitch McConnell’s success in shaping the federal judiciary that is failing to protect democracy. Article V of the Constitution, also unchanged by the Civil War amendments, makes formal constitutional change rare and unlikely. Amendments to the Constitution require two-thirds of both houses of Congress and ratification by three-fourths of the state legislatures, or else a petition to Congress by two-thirds of state legislatures for a constitutional convention, which can propose amendments that then need to be ratified by three-fourths of the state legislatures.  The consensus required to amend the constitution essentially gives formerly slaveholding states veto power over constitutional amendments.     It is perhaps because the U.S. Constitution is impossible to amend without making common cause with some racists and white supremacists (as the recent 19th Amendment centennial has brought to light) that liberal constitutional reform projects tend to steer clear of proposing constitutional amendments.  Balkin’s proposed reforms in Chapter 11 are no exception. To overcome the constitutional rot, Balkin argues that political action, rather than judicial decision, will lead the way, and can be achieved without a constitutional amendment. His reforms include (1) instituting regular and predictable Supreme Court appointments, (2) term limits for Supreme Court Justices; (3) reducing the Supreme Court’s control over its own docket; and (4) sunrise provisions.  These are all reforms that would reduce the sitting judiciary’s contribution to constitutional rot, but the focus on the judiciary may be misplaced if the President and Congress (including a Senate that disproportionately represents the American people) are equally responsible for constitutional rot. Furthermore, to the extent that Balkin presents his theory of reform as a prediction of what’s next in the cycle, rather than as a normative prescription, one wonders whether Congress – even assuming liberals win majorities in both Houses—will be moved to legislate such significant reforms of the judiciary.  Whereas Republicans and the conservative movement have made judicial appointments a central issue in legislative and presidential elections, Democrats and liberals have paid little attention to the composition of the judiciary in legislative and presidential campaigns in 2020. Balkin’s optimism about a political mobilization completing a cycle of depolarization may be unwarranted. He does not identify a movement that can carry out the “painful process” of emerging from the “stubborn condition” (174) of constitutional rot. The “most likely candidate” is a “natural evolution of the coalition” “of minorities, millennials, college-educated professionals, suburbanites, and women.” While the book’s thesis sounds in deterministic prediction; it acknowledges that emerging from constitutional rot will require hard political work that is contingent and subject to failure. The coalition on which Balkin hangs his promise of constitutional renewal will face barriers to exercising the political power necessary to reverse the rot because, with the exception of women, they tend to be concentrated geographically in places that are disempowered by the flawed constitutional design of the Senate, the electoral college, and Article V.  In addition, the prior New Deal coalition of working-class people with socially liberal college graduates initially left out minorities and women.  As it evolved to encompass the civil rights movement and women’s liberation in the 1960s and 1970s, the Reagan regime successfully capitalized on the cultural backlash to these politics of identity and prevailed in 1980. It may well be that salvaging democracy in the twenty-first century will require a more ambitious project of constitutional renewal, beyond Balkin’s proposed judicial reforms, if this multifaceted coalition is actually to be empowered. Other countries are undertaking new processes of constitution-making under conditions more inclusive and democratic than our existing Constitution envisions.  In Chile, for instance, a plebiscite in October will determine whether a new constitution will be drafted by a constituent assembly elected to reflect gender parity. In Iceland, a crowdsourced constitution produced in 2018 was not ratified by Parliament, but it led the government to conduct deliberative polls to plan a constitutional revision process that is currently in progress. If a rotten constitution has enabled the constitutional rot over time, rethinking the design of our representative lawmaking institutions and the process by which the Constitution is amended may be the only hope.Julie C. Suk is Professor of Sociology & Political Science, The Graduate Center – CUNY; Visiting Professor of Law, Yale Law School, and the Author of We the Women: The Unstoppable Mothers of the Equal Rights Amendment (2020).  You can reach her by e-mail at jsuk@gc.cuny.edu, or julie.suk@yale.edu, and on Twitter at @JulieCSuk

  • Trump Schedule || Thursday, September 17, 2020
    by Keith Koffler on September 17, 2020 at 11:54

    12:30 am || Participates in a credentialing ceremony for newly appointed ambassadors to Washington 2:30 pm || Delivers remarks at the White House Conference on American History; Washington 6:20 pm || Departs White House 7:50 pm CT || Arrives Mosinee, Wisconsin 8:00 pm CT || Delivers remarks at a campaign event; Mosinee 9:10 pm CT … Trump Schedule || Thursday, September 17, 2020 Read More »

  • On this day, the Constitution was signed in Philadelphia
    by NCC Staff on September 17, 2020 at 09:38

    On September 17, 1787, a group of men gathered in a closed meeting room to sign the greatest vision of human freedom in history, the U.S. Constitution. And it was Benjamin Franklin who made the motion to sign the document in his last great speech.

  • Top myths about the Constitution on Constitution Day
    by NCC Staff on September 17, 2020 at 09:37

    The Constitution is our most enduring document, but not everything you read online about the Constitution is accurate! Here are some of the top myths about the Constitution and the Founding Fathers still out there on blogs and websites.

  • “Despacito,” song played by Biden, is obscene
    by Keith Koffler on September 16, 2020 at 23:56

    Pandering to Latinos, Joe Biden stepped to the stage Tuesday during a Hispanic Heritage Month event in Florida and played a tune, Despacito, that I doubt he’d ever heard. But he might have checked the lyrics of the song he was promoting. “I’ll tell you what, if I had the talent of any one of … “Despacito,” song played by Biden, is obscene Read More »

  • Video || Biden reads from prepared list of reporters to call on
    by Keith Koffler on September 16, 2020 at 23:42

    I mean, at least try to pretend. I would note that this is not completely uncommon practice by presidents. But Trump doesn’t do it. And it seems obvious Biden doesn’t even recognize the reporter he is calling on.

  • Judicial Watch and Legal Insurrection Investigate University Retaliation against Professor Who Questioned ‘Systemic Racism’
    by fvanloon on September 16, 2020 at 20:56

    Professor Charles Negy targeted after raising questions about leftist positions on race (Washington, DC) Judicial Watch announced today that it has joined with Legal Insurrection Foundation to file a Florida public records request for communications at the University of Central Florida (UCF) related to Professor Charles Negy, who was attacked by campus leftists and the university The post Judicial Watch and Legal Insurrection Investigate University Retaliation against Professor Who Questioned ‘Systemic Racism’ appeared first on Judicial Watch.

  • FARRELL: Mueller And His Team Look Worse By The Day
    by fvanloon on September 16, 2020 at 19:48

    From Chris Farrell’s Op-Ed for The Daily Caller: The full story of Robert Mueller’s special counsel investigation of the Russian collusion myth has yet to be told, but important pieces of the tale are emerging. It is increasingly clear that Mueller exerted little to no control over what was going on. The narrative-driven image of The post FARRELL: Mueller And His Team Look Worse By The Day appeared first on Judicial Watch.

  • Scholar Exchange: Constitution 101: The Constitutional Convention (High school and College Level)
    by National Constitution Center on September 16, 2020 at 19:13

    In this session, students will examine the issues and events that led to the Constitutional Convention in Philadelphia in the summer of 1787, including the weakness of the Articles of Confederation, Shay’s Rebellion, and the growing need for a new national government. Students will also explore the Convention, and its major turning points and compromises—including the Connecticut Compromise, the Electoral College, the Three-Fifths Compromise, and the Slave Trade Clause.

  • Video || Joe Biden panders to Hispanics
    by Keith Koffler on September 16, 2020 at 18:52

    Joe Biden began his remarks during a Hispanic Heritage Month event in Florida Tuesday by pretending to get down to some Latino music. Does he think people are stupid? How condescending. Has he ever even heard the song before? Of course not. Does he like it? I doubt it. Is he going to go see … Video || Joe Biden panders to Hispanics Read More »

  • Trump takes five times more questions from the press than Biden
    by Keith Koffler on September 16, 2020 at 18:35

    And the press still hates him for it. And the questions are far more hostile. I mean, Trump did an ABC News “town hall” in Philadelphia Tuesday night. Biden would never do such a thing with a conservative-leaning network. According to the New York Post: President Trump fielded 867 more questions from reporters than Joe … Trump takes five times more questions from the press than Biden Read More »

  • Jeffrey Rosen and Dahlia Lithwick discuss RBG’s vision of a more “embracive” Constitution
    by National Constitution Center on September 16, 2020 at 18:09

    This clip comes from a Nov. 2019 event, where National Constitution Center President and CEO Jeffrey Rosen unveiled his newest book, Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law—an informal portrait of the justice through an extraordinary series of conversations, starting in the 1990s and continuing to today. With Justice Ginsburg’s approval, Rosen has collected her wisdom from their many conversations in which she discusses the future of the Supreme Court and Roe v. Wade, her favorite dissents, the cases she would most like to see overruled, the #MeToo movement, how to be a good listener, and how to lead a productive, compassionate life. These frank exchanges illuminate the determination, self-mastery, and wit that have inspired women and men of all ages to embrace the “Notorious RBG.” Dahlia Lithwick, veteran Supreme Court reporter, moderated.

  • Scholar Exchange: Constitution 101: Constitutional Convention (Middle School Level)
    by National Constitution Center on September 16, 2020 at 17:47

    In this session, students will examine the issues and events that led to the Constitutional Convention in Philadelphia in the summer of 1787, including the weakness of the Articles of Confederation, Shay’s Rebellion, and the growing need for a new national government. Students will also explore the Convention, and its major turning points and compromises—including the Connecticut Compromise, the Electoral College, the Three-Fifths Compromise, and the Slave Trade Clause.

  • Live Stream || White House briefing – September 16, 2020
    by Keith Koffler on September 16, 2020 at 17:36
  • Video || Joe talks about what the Harris-Biden administration will do
    by Keith Koffler on September 16, 2020 at 14:54

    You know, I guess it’s just gaffes, but after Kamala Harris spoke this week about what the “Harris administration” will do, you have to wonder if there isn’t some talk behind the scenes about how things might end up if they get elected. I’ve never heard mistakes like these. Here is Biden Tuesday in Orlando, … Video || Joe talks about what the Harris-Biden administration will do Read More »

  • Civil War and Reconstruction Exhibit Tour: Building to Crisis
    by National Constitution Center on September 16, 2020 at 14:27
  • Signers’ Hall Tour: September 17, 1787
    by National Constitution Center on September 16, 2020 at 14:26
  • Cock-eyed Optimist Meets Chicken Little: Jack Balkin on the American Future
    by Sandy Levinson on September 16, 2020 at 13:30

    For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).   Given that we are close friends and the co-authors of some twenty articles and a book, Democracy and Dysfunction, it is not surprising that I think very highly, and agree with much of, Jack Balkin’s new book The Cycles of Constitutional Time.  Perhaps it is relevant that I read it in two sittings; it is a real page-turner, written with brio as Jack presents a remarkably comprehensive overview of what he discerns as various cycles in American politics (importantly including the Supreme Court and the development of constitutional doctrine) from literally the beginning of the new national government in 1789 to the present.  It is a book to be savored, to learn from, and, inevitably, to argue with.For me, the central question is whether Jack ultimately has a tragic or a comic view of our constitutional saga.  Will there be bodies strewn all over the stage at the end of the play, or will there be whatever the modern equivalent of a “constitutional marriage” with smiles all around and stories as to how the now-happy country surmounted a variety of challenges and travails to achieve their happy ending?  Jack, I believe, has an ultimately comedic view.  He forthrightly states, both at the beginning of the book and then again at the end, that for all of the justified depression we might feel at the present moment about the health of our constitutional order—as I, for example, have posted suggestions that the preferable alternative to the incipient civil war is peaceful dissolution of the United States—it is ultimately only the darkness before a brighter dawn.  It might take quite a while for us to dig our way out of the multiple problems facing us today, including what I regard his most important analytical contribution, the notion of “constitutional rot” (about which more anon), but do not lose hope.  Thus the concluding words of the book: The problems of American democracy will not be cured overnight, or even in a decade.  Constitutional rot is a stubborn condition; emerging from it will be a painful process.  The good news is that the cycles of constitutional time are slowly turning.  Politics is re-forming.  The elements of renewal are available to us, if we have the courage to use them.             I am less optimistic.  Within our partnership, which has been central to my intellectual life for at least three decades, I suppose I have become Chicken Little to his sometimes cockeyed optimist.  So my contribution to this symposium, beyond urging everyone to read and grapple with a really interesting, fully accessible, meditation on the past and current state of American politics, is to cast some doubt on his relative optimism.  Given his time horizon, he is not really trying to reassure me that things will necessarily get better in my lifetime, as I am completing my eighth decade of life, but, rather, that my children, probably, and, most certainly, my grandchildren, may have reason to look forward to sunnier futures (defined, among other ways, by the return to more-or-less hegemonic power, for at least a while, of the Democratic Party).  For obvious reasons, I hope that I am wrong and Jack is right.  However, I am not convinced, even if, as seems probable, Joe Biden becomes #46 in our line of presidents.  Will he lead the “transformation” that the United States desperately needs?  Will he, more particularly, take the lead in suggesting that we need a long-overdue national conversation about constitutional reform if we are serious about curing our “rot”?  The answer to both questions, I am afraid, is no.             So let’s talk about “rot.”  What is it?  “It is the decay of the features of a constitutional system that maintain it both as a democracy and as republic.”  A “democracy” presumably is defined by the degree of a political system to the actual preferences of the demos, sometimes with reference to the “median voter.”  To the degree that a system in fact honors the preferences of others, who will invariably be only a minority of the overall public, then it is not a “democracy.”  And Jack presents good reason to believe that we are indeed in such a situation, where we live far more in an “oligarchy” where money not only talks but screams with delight as the wishes of the donor class are translated into concrete political victories.  This is especially notable in Republican administrations, as with the obscenity of the Trump “tax cut,” but also, if truth be known, in the more-or-less “neo-liberal” administrations of both Bill Clinton and Barack Obama, where the well-off became even better off even if there were also some efforts, as with the Earned Income Tax Credit or Obamacare, to pay at least some attention to the plight of those seen by Mitt Romney in 2012 as “the takers” rather than the “makers” who deserved to hoard any economic gains.  Of course, there is the reality that the Constitution was designed by people who were profoundly antagonistic to the notion of “democracy” inasmuch as that required some genuine faith in the capacity of ordinary people to engage in what Federalist 1 described as “reflection and choice” about how we should in fact be governed.  Inasmuch as the Framers did whatever they could to assure that we would live within the confines of a significantly “undemocratic Constitution,” then it’s not clear what it means to say that our present situation represents a “decay” rather than, for some, at least, the realization of their hopes.              But Jack is also concerned about the health of what the Constitution specifies as our “Republican Form of Government.”  What does this mean?  “A republic,” he writes, “is more than a representative form of government.  It is a joint enterprise by citizens and their representatives to pursue and promote the public good.”  It requires an internal set of dispositions, where people are genuinely willing and able to subordinate their self-interest to pursuit instead of “the public good.”  One is reminded of 17th-century voters’ oaths where the members of the community pledged to think only of what would be best for the community at large rather than their own particular interests.  (This is the deep meaning of the fact, for example, that four of the American states—Massachusetts, Virginia, Pennsylvania, and Kentucky (originally, of course, part of Virginia)—styled themselves as “commonwealths,” i.e., communities organized around the seeking of a common good.”)  Constitutional rot occurs when “public servants are increasingly diverted into the pursuit of their own wealth, or when they are increasingly diverted into serving the interest of a relatively small number of very powerful individuals,” as against being committed to “the public good.”              In my book Framed, I delineated what I called the “Madisonian anxiety,” spelled out most clearly in the famed Federalist 10, where Madison acknowledged, as the Protestant he was, that we are all ineluctably selfish and thus prone to prefer our own interests, whether economic gain or the triumph of our own religious sectarianism  over those who are classified as “heretics” or otherwise “ungodly.”  Was there a solution?  Is a “republican” society organized around the quest for a common good that will be sought by suitably socialized citizens destined to become a distinctly more “liberal” order that accepts the priority of individual interests and the psychology associated with self-seeking (ultimately defined so memorably by Oliver Wendell Holmes in terms of his completely egoistic “bad man” concerned only with maximizing individual utilities)?  I read Madison as offering the quite implausible hope that the new Constitution can endure as a “republican” order, basically by limiting the power of “we the people”; he proudly states in Federalist 63 that a central feature of the new constitutional order is that all governance will be done exclusively through “representatives” and none whatsoever by “the people” themselves.  Why should one expect this to alleviate his anxiety?  It is because, for reasons left almost completely unexplained, he believes that voters for, say, the House of Representatives, the one branch of the national government in which “the people” will play any role at all, will vote for enlightened elites who will use their powers not to pursue the interests of their selfish constituents, but rather to achieve the “public good.”  The Senate, of course, was to be selected by state legislatures, and the president by electors who, we were solemnly promised in Federalist 68, would protect us against demagogues by using their discretion to select only truly trustworthy leaders.  (The Supreme Court, of course, paid absolutely no attention to Hamilton’s assurances in deciding in July that electors could actually be turned into mindless minions of whoever voted them into office, the one example at the national level of fully “instructed” delegates instead of at least partial “trustees” for the public good.)             So what’s the problem, even beyond the empirical failure of Madison’s (and Hamilton’s) descriptions of the system they helped to design in Philadelphia to operate as they suggested it would?  The more serious problem, in a way, altogether relevant to Jack’s really fine book, is our difficulty today in supplying any convincing meaning to the term “public good” (save in the economists’ sense of a particular kind of good that cannot in fact be distributed through a market price because there is no way to limit beneficiaries of, say, a dam or a national defense system only to those who pay a relevant fee).  The Democratic Party in particular has been based for at least the past 75 years on what came to be described as “interest-group liberalism,” a collection of groups, sometimes in conflict with one another—the famed “big tent” until the 1960s of white Southern segregationists and urban Black politicians like Adam Clayton Powell—who would, nonetheless, all receive the benefits accruing from various “tax and spend” programs endorsed by the New Deal and Democratic presidents who governed in Roosevelt’s wake.  In his famed Preface to Democratic Theory, the great political scientist Robert Dahl ridiculed the notion of a public interest, replacing it by drawing our attention to the fact that any political party is necessarily an uneasy coalition of groups pursuing their own welfare.  Perhaps if one shares the optimism of Bernard Mandeville’s Fable of the Bees or Adam Smith’s notion of “the invisible hand,” then it will turn out, as Mandeville famously asserted, that out of the pursuit of private vice will magically emerge “the public benefit.”  To put it mildly, I doubt that many of Jack’s likely readers, whether democrats or Democrats, are so optimistic.              A key book at the end of the 1960s was Cornell political scientist Ted Lowi’s The End of Liberalism, where he castigated the shallow political theory underlying interest group liberalism.  And, among other things, he castigated its implementation, so to speak, via open-ended delegation to the executive branch.  Craven legislators could tell their constituents that they had supported programs in their interest while, at the same time, leaving it up to more-or-less unaccountable administrators to make the genuine discretionary decisions that could literally determine, on occasion, who shall live and who shall die.  He suggested that we had transitioned to a distinctly different form of “republic,” and he was not happy about it.  But both mainstream political science and legal academics agreed that almost nothing useful could actually be said about what governance in “the public good” might actually look like.  Or, should we seek guidance, some legal academics suggested, it would be in the wisdom of the Warren Court.  Even Alexander Bickel, after all, before he lost his faith in the judiciary, commended the judiciary as the privileged enunciator of our “fundamental values” and, therefore, what presumably united us as a singular people with certain transcendent commitments.              An exceptionally interesting chapter, about the cycles of judicial time, draws a clear contrast between the relative “depolarization” that existed in the otherwise disorderly 1960s and the belief, now regarded as near-delusionary, that elite lawyers and judges, especially if trained in the “legal process” school of Henry Hart and Albert Sachs—and exported to Yale by Bickel—could achieve “settlement” of the issues that might otherwise appear to be insoluble, including race relations (see Brown) or what exactly “representative government” might really entail (see Baker v. Carr and then Reynolds v. Sims).  And even the sexual revolution could be handed, as with Griswold and then Roe.  Presumably serious people, two of them trained at Harvard, the third at Stanford, could write in their plurality opinion in Casey (1992) that the function of the Supreme Court was to resolve basic conflicts and the function of the public at large was to accept the Court as, in its own words going back to Cooper v. Aaron (1958) the “ultimate interpreter” of the Constitution.  To adopt the language from my book Constitutional Faith, the Court presented a “catholic” (note the little-c) view of itself as the equivalent of the Vatican so far as the Constitution was concerned.                Today, almost no one takes seriously this self-presentation of the Court, not least because its present majority is Catholic—a reality almost literally inconceivable when I was in graduate school many decades ago and had just experienced John Kennedy’s reassuring a Baptist audience in Houston that his religion was irrelevant to understanding him as a person or political leader (which, perhaps, was empirically correct).  And the Catholic identity of certain justices is not deemed a mere factoid, similar to having been born, as Ruth Ginsburg was, in Brooklyn, but, rather, genuinely constitutive of how the judges in question look at the world, especially and most obviously with regard to such “culture-war” issues as abortion and the willingness to include non-heterosexuals as full members of the American constitutional community.  But it would be a mistake to reduce the current majority to their religious identities.  They are also strongly Republican (capital R), fully committed to the general world-view that was associated at least with the pre-Trump Republican Party.  As Jack well notes, every Republican appointee since David Souter—partly as a reaction to the Republican disappointment about Souter’s subsequent career on the Court—has been a strong “movement” conservative Republican, especially, of course, the Federalist- and Heritage-vetted Neil Gorsuch and Brett Kavanaugh.  And it is fair to say that Biden, should he have the opportunity, will be strongly expected to pick, as successors to the retiring Ginsburg and Breyer, strong liberals who might well receive votes in the Senate only from Democrats and the unanimous opposition of Republicans.  Concomitantly, if Biden is faced with a Republican Senate, it is not unthinkable that no one will replace Ginsburg or Breyer.  The ruthless dismissal of Merrick Garland’s nomination by Mitch McConnell will simply become a precedent for Supreme Court appointments in the contemporary political world. The contemporary Court, like the contemporary legal profession and, of course, the country at large, is very much divided into different ideological teams.  This is what “polarization,” a major theme of the book, is all about.  Only devoted partisans of one of the teams believes that their opponents are “heretics,” willfully rejecting the obviously true doctrines, whether of “originalism” or “living constitutionalism,” in favor of trying to impose their narrow “political” objectives.  This is to assume the sharp separation of law and politics that Jack rightly ridicules.  Instead, I think it’s fair to say that, like Mark Tushnet in his own recent book Taking Back the Constitution, Jack does not view Republican judges as “heretics,” but, instead, as skilled professionals who happen to have an unfortunate, albeit plausible, view of what the Constitution (or statutory interpretation) means.  To describe Chief Justice Roberts and his Republican cohort, as I sometimes have done, as “running dogs of the capitalist empire,” is for better or worse, to suggest that they are self-consciously asking what they can do to enhance the powers of capital against, say, consumers injured by corporate malfeasance, but, rather, that they have incorporated into their understanding of what is best for America—and the “true meaning” of the Constitution—Republican nostrums about the glories of the so-called “free market” and concomitant notions of what it means to “secure the blessings of liberty” at the present time.  Neither Justices Roberts nor Ginsburg need be viewed as “insincere” in their beliefs about what fidelity to their constitutional oath entails, and nothing is gained by traducing either of them, as Justice Scalia was sometimes prone to do, as not “behaving like judges” because they come to different conclusions as to what the Constitution requires.  But such “civility” toward one’s opponents scarcely resolves the political and jurisprudential dilemmas that Jack limns.              In fact, one of the surprising features of the book is his modification of one of the most important of our co-authored essays, a 2001 article in the Virginia Law Review  in which we tried to explain how “constitutional revolutions” operate.  In that essay we proffered the distinction between “high politics” and “low politics.”  We suggested, as had, for example, Felix Frankfurter in an essay in the International Encyclopedia of the Social Sciences in the 1930s, that all judges (and lawyers), without exception, carried in their heads conceptions of what sorts of policies or approaches to law would in fact best serve “the public good.”  They would, not surprisingly, always interpret any ambiguous laws in ways that would best achieve the results dictated by “high politics.”  It would be extraordinarily if they did anything else. On the other hand, “low politics” was concern for what would serve the interests of a judge’s political party or political associates in the next election.  We suggested that “low politics” was rarely present at the level of the Supreme Court, though this probably wasn’t true if one looked at local courts in Chicago, Louisiana, or many other state courts.  Jack now suggests, however, that the distinction might have outlived its use-by date, precisely because it is getting ever more difficult to separate the two realms.  When John Roberts, for example, systematically votes to uphold what Democrats have no trouble defining as “voter suppression” efforts by, say, Alabama (Shelby County) or declares that ruthless partisan gerrymanders are non-justiciable (Rucho), is he manifesting a “high” political vision or instead serving as an agent of the GOP that placed him in office to do whatever he can to maintain them in power through thick and thin?  This doesn’t require that he be consciously thinking of what will serve GOP interests, only that he is, from “our” point of view, recklessly indifferent to the consequences for the American polity of adopting his readings of the Constitution because, overall, they best fit what we formerly would have described as (only) his “high politics.”  But the crucial problem, as Jack spells out, is that an older generation, influenced by footnote four of Carolene Products and culminating in John Hart Ely’s 1980 Democracy and Distrust, accepted wide-ranging decision-making powers on the part of legislatures and even executives in return for a promise that the Court would monitor the procedures by which officials were selected.  One should be expected to be a “good loser” in the ordinary political process if, in fact, the process was demonstrably fair (or at least fair enough) to avoid being described, in contemporary parlance, as “rigged.”  But recent decisions on campaign finance, gerrymandering, and voter suppression have removed any reason to believe that the American electoral system in fact meets standards of “fairness.”  Should Donald Trump be “re-elected” by a narrow electoral vote margin while losing the popular vote by, say, five to ten million votes, as is currently projected, the only proper response is rioting in the streets, not calmly reassuring one another to “wait ‘til next time, in 2024.”  Neither Jack nor devotees of Balkinization will be surprised to read that I wish his diagnosis of our “constitutional rot” had included more attention to the Constitution itself.  Might it be part of the rot, as against the potential cure?  For me, of course, that has become a rhetorical question.  The closest Jack comes to recognizing this possibility is near the very end of the book, when he acknowledges that the United States Senate is organized in such a way that it places what has become the core Democratic constituency at a decided disadvantage.  This means that we may face a future of “only modest, slow change, which will often be frustrating.” “Obstacles” like the Senate “will make it harder to chip away at the causes of constitutional rot.”  Well, yes.  And for me this portends further tragedy and the ever-growing, and fully justified, disillusionment with the political system foisted on us in 1787.  People are literally dying, or faced with the prospect of miserable futures, in part because of the obvious problems with the American political system.  At what point will enough people consider what is happening to them a sufficiently “long train of abuses” that they will not simply wait for the happy ending that Jack wants to promise them/us?  This is most certainly not to say that I can envision a more plausible comedic ending.  As with Four Threats, by Suzanne Mettler and Robert Lieberman, which I recently reviewed on Balkinization, an often brilliant analysis of our current dire situation concludes with some hopeful reassurance that all is not lost.  “We” survived the Black Plague, various depressions, and two world wars in the 20th century; this, too, will pass.  The sky is not really falling or, even if so at the present moment, it will stop and our descendants will be able to sing “Happy Days are Hear Again.”  I can only say, I hope so, but at this moment I continue to look up at the sky with trepidation.  I am inclined to believe Edgar, from Act IV of King Lear: “The worst is not/ So long as we can say ‘This is the worst.’”    

  • Trump Schedule || Wednesday, September 16, 2020
    by Keith Koffler on September 16, 2020 at 12:30

    12:30 pm || Participates in a High Holy Days Call with Jewish Leaders 1:30 pm || Lunch with Vice President Pence 7:00 pm || Delivers remarks at National Republican Congressional Committee Battleground Dinner; Washington All times Eastern

  • Signers’ Hall Tour: The Dissenters
    by National Constitution Center on September 15, 2020 at 23:53
  • Free speech, Meriwether, and Menkel-Meadow
    by Andrew Koppelman on September 15, 2020 at 22:26

    Two cases of administrative punishment for the use of language in the classroom have been in the news.  One involves a professor’s insistence on treating a transgender student worse than others.  The other involves a professor who spoke the N word in a law school class about hate speech.  The free speech claim is silly in the first of these cases, quite strong in the second.Prof. Nicholas Meriwether of Shawnee State University, Ohio, refused to address a transgender student by the student’s preferred pronouns.  Instead, while addressing all other students as “Mr.” or “Ms.,” he referred to the student by last name only.  When disciplined for discrimination, he sued the school, claiming that his free speech rights were violated.  He lost and is appealing the decision.  In an essay at The Hill, I explained why his legal claim is meritless.He has now published a responseto me, arguing that he is being wrongly forced to say what he does not believe.  He does not regard this student as female and should not be required to address the student with female pronouns.  Teachers “should not be compelled to say and teach things they don’t believe or risk being fired or disciplined. And everyone should be free to stand thoughtfully for the truth.”I agree with that.  Since faculties tend to be disproportionately on the political left, it is particularly urgent to protect the speech of those with conservative views.  Those who oppose gender change should be permitted to say so.  (See Deirdre McCloskey’s smart defenseof J.K. Rowling’s free speech rights.) It is also urgent, and not only within the university, to lower the temperature of the conflict between gay rights and religious liberty.Meriwether however fails to mention a crucial fact.  As I reported in my earlier piece, his administration “suggested that he could refer to all students by first or last names only, without using gendered pronouns for any of them.  That would have treated all students equally, and it would not have required him to say anything he did not believe.  Why would he not do that?”He writes that “I should have a certain amount of freedom, within my own classroom, to determine the exact language I do and do not use when teaching my class.”  His reasons for insisting on addressing students as “Mr.” or “Miss” are specified in his district court complaint:  “Dr.Meriwether refers to students in this fashion to foster an atmosphere of seriousness and mutual respect that is befitting the college classroom.  Dr. Meriwether believes that this formal manner of addressing students helps them view the academic enterprise as a serious, weighty endeavor.”  I responded:  “Of course, the seriousness and weightiness of honorifics were not available to the transgender student.  Meriwether is insisting on his right to single out the transgender student and treat her worse than all other students.”Meriwether now writes:  “the school’s problem with me—and, for that matter, the student’s problem with me—is not really that I treated him [sic] differently, but that I did not. I treated this student exactly like I treat others, when in fact he [sic] wanted to be treated differently.”  But impact matters, and schools can take impact into account when they regulate how students are treated.  Meriwether’s notion of equality would be satisfied by a classroom that happens to have a doorway too narrow for a wheelchair.I wrote:  “Meriwether is essentially alleging that his academic freedom, or perhaps his freedom from compelled speech (he offers lots of different free speech formulations) mean that he has a First Amendment right to say anything he wants in his classroom. . . . If these claims are accepted, then teachers have an unlimited right to verbally mistreat students.”  His response to me makes clear that I understood his claim perfectly.  His understanding of free speech is so broad that he would be free to address his students using racist epithets.  If a teacher is entitled to declare in class his sincere belief that his transgender student is a man, then a teacher must be likewise entitled to declare in class his sincere belief that his African-American student is a being of an inferior order with no rights that whites are bound to respect.I have been writing about issues of academic freedom in the classroom, and in particular about the use of the N word.  So I’ll clarify how the Meriwether case is different from a couple of other cases that have recently become prominent.  The most important issue is notice.  If a school forbids addressing transgender students by the pronoun of their previous gender, it must tell professors of this requirement and give them the opportunity to comply.  Shawnee State did that.Part of what is pernicious about the mistreatmentof Michael McConnell, who read from a racist text in order to expose shameful aspects of American history, is that he was condemned(by a group of law review editors from another school!) for crossing a line that no one knew existed when he spoke the word in his class.  The treatment of Carrie Menkel-Meadow is far worse.  McConnell was publicly denounced in print by a group of students.  Their statement was foolish and reprehensible, but they have their own free speech rights, and no administrative consequences followed.  Menkel-Meadow teaches at the University of California, Irvine School of Law.  LikeMcConnell, she spoke the word while teaching about racist speech.  In response to student objections, the school’s dean, Song Richardson, barred Menkel-Meadow from teaching first year classes.There is room for debate about how classes should be conducted, and specifically about the use of the N word.  I agree with Eugene Volokh and Randall Kennedy that an absolute bar, which would extend to written materials as well as utterances in the classroom, would be a pernicious dumbing down of legal education.  I’m happy to have that conversation about appropriate pedagogy.  My own judgment today is that the mention of the word, coming out of a white person’s mouth, has nasty resonances that many students find deeply alienating. That’s why I will not orally articulate the word in class again.  McConnell has reached the same conclusion. Teaching is an exercise in rhetoric, and rhetoric always needs to be adapted to the concerns and sensitivities of its audience.  I don’t think that an absolute bar would be an appropriate rule, but that would be an appropriate subject for debate among the faculty.  Any such rule would of course be enforced prospectively.  Which brings us to the line that Dean Richardson has crossed.  She is punishing a faculty member under an ex post facto rule that, even now, has decidedly fuzzy boundaries.  She said in a statementto Above the Law:  “It is time to eliminate the use of the ‘N’ word in legal pedagogy.” Volokh writes:  “This would mean that words that respected, thoughtful, judges and lawyers of all ideological stripes routinely mention in opinions, briefs, and oral arguments, and which lawyers routinely see in case documents and hear in witness and client interviews, would be forbidden in the law school classroom.”  It might also mean that professors could be punished for assigning readings that contain the word.  It is not clear to me how one could teach certain major free speech cases, such as Brandenburg v. Ohio, in a way that would shield students from seeing the word in print.  If the N word is absolutely to be expelled from legal pedagogy, than some volumes of the U.S. Reports will have to be removed from law libraries. The Irvine administration’s action is certain to create an atmosphere of fear at the school, in which no one can tell what the boundaries of permissible speech are.  This is fundamentally at odds with the purposes of education.  It is a massive betrayal of administrative responsibility.Meriwether has no such complaint.  He was put on clear notice of where the line was.  That line makes sense for the same reason that it is already clear that a professor may not directly address a student by using the N word.  He was also offered an accommodation that would not have required him to say anything he did not believe.  There was no vagueness, and no chilling of the substance of what he taught.The Irvine decision should be reversed, by Dean Richardson or, if necessary, the university administration.  Universities’ improved sensitivity to the vulnerabilities of minority students is valuable, but it becomes toxic when it is the basis of administrative sanctions for violation of ex post facto rules.

  • Robert Mueller’s Conflict of Interest
    by fvanloon on September 15, 2020 at 14:44

    “This is an extraordinary document in the sense that it ought to generate a criminal investigation into Mueller’s testimony,” Fitton stated in last week’s Weekly Update. Ongoing Judicial Watch investigations have uncovered documents that appear to contradict – in Fitton’s words – FBI Special Counsel Robert Mueller’s previous statements about his potential bid for the The post Robert Mueller’s Conflict of Interest appeared first on Judicial Watch.

  • All Things End
    by Guest Blogger on September 15, 2020 at 13:30

    For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020).  Randall KennedyThat one of the aims of Jack Balkin’s new book is to assuage feelings of despair highlights the extraordinary peril of the moment. “My purpose,” he writes, “is to offer a bit of hope for people who read the news every day and fear that things are only going to get worse.”    He seems to adopt this purpose as a matter in part of political strategy.  A dutiful liberal reformer, he seems to believe it important for him to lift the spirits of discouraged comrades.  People, he insists, “can’t allow themselves to be overcome by despair and paralyzed into inaction.”  Seeing hope as a staple of responsible political conduct, he maintains that while “hope does not guarantee action . . .  it makes beneficial action more likely.”    Balkin’s hopeful message is that our present predicament, albeit awful, is transitory.  Better days are ahead.  So hold on.  Don’t give up.  The wheel turns.  Our present impasse, he assures us, is like an eclipse – momentarily frightening but over rather quickly. “ [O]ur recent unpleasantness,”  he writes, “is only a temporary condition.  We are in transition – a very difficult, agonizing, and humbling transition – but a transition nonetheless.”  “The fate of the United States, “ he assures us, “ is not going to be the same as that of Turkey, Brazil, Hungary or Poland.”  They might utterly fail.  But not the good old U.S.A.  “We are in our Second Gilded Age, and on the cusp of a Second Progressive Era.” Acknowledging the ubiquity of the foulness that seems to suffuse American life, he pays special attention to what he aptly terms “constitutional rot.”   According to Balkin, constitutional rot “is the process through which a constitutional system becomes less democratic and less republican over time.”  It is accompanied by the deterioration of norms of mutual forbearance and  fair political competition and a profound loss of trust between political adversaries and within the citizenry as a whole.  The constitutional rot produces and is mirrored by an electorate riven by economic inequality and tribal bigotries, a Congress that is stricken by polarization, a President who is a demagogue, and a Supreme Court that is unable or unwilling to address commendably even those issues that are, traditionally,  within its jurisdiction. Balkin’s portrayal of the Court and its subordinates is particularly mordant.  Its record is such, Balkin maintains, that “We should not expect the federal judiciary will be of much help in extricating the country from . . . constitutional rot.  At best, the federal judiciary will be impotent; at worst it will exacerbate polarization, increase inequality, legitimate rot, and throw obstacles in the way of reform.”     Yet, amidst this bleakness,  Balkin somehow discerns renewal.  “I predict,”  he writes, “that we are slowly moving into our Second Progressive Era.”  The good news, he concludes, “is that the cycles of constitutional time are slowly turning.  Politics is re-forming.  The elements of renewal are available to us, if we have the courage to use them.”   I enjoyed reading The Cycles of Constitutional Time as I enjoy reading most everything that Balkin writes.  He is lively, creative, wide-ranging, and independent-minded.  He crystalizes ideas memorably and coins useful concepts as in his depiction of federalism and separation of powers as an insurance policy for republican governance: These structural features operate to dampen and limit the downside of inevitable decay in our republican institutions – to keep democracy afloat and republicanism running until the political system has a chance to renew and right itself.  The goal is to insure that although things may get bad  . . . the republic never completely falls apart, so that it can bottom out and renew itself eventually.   I would like to embrace at least the contours of Balkin’s thesis.  After all, it proffers a story that is never-ending, in which good always emerges from the depths  (albeit only to be followed again by another period of rot).   Alas, the book leaves me unconvinced.   First, Balkin understates the danger of the present moment.  “We have been through these cycles before,”  he writes with attempted reassurance, asserting confidently that “we will ultimately get out of our present troubles.”  But I challenge him to present another time in the history of the United States when it was headed by a president who posed more of a danger to decent political practices and values than Donald Trump.  Balkin certainly realizes that Trump is awful, noting that he “engages in race baiting,”  “stokes fear of immigrants,” “finds new ways to divide . . . the public,”  “is utterly without shame,”  and is a corrupt  “moral and political hypocrite who systematically attributes his own failings to others.”  Trump is, Balkin avers, “a demagogue for our times” who has deliberately and repeatedly undermined key democratic and republican commitments.  The reality, however, is that Trump is even worse, much worse, than what Balkin depicts.  Balkin folds Trump into a cyclical history of America.   But Trump is quite singular.  Never before has an incumbent president acted in a fashion that has led to reasonable worry that he might, to retain power, posptpone or interfere with the election or, upon losing in the electoral competition, refuse to leave office on the grounds that the election was rigged.  I agree with Balkin that Trump “is a symptom of advanced constitutional rot and not its originating cause.”  But Trump has exacerbated the rot in extraordinary ways that have let lose toxins that will not be rinsed away.   Balkin talks about constitutional deterioration and renewal but he hardly ever alludes to that other key phase in the history of nations  – The END.  He never discusses constitutional death.  But in the fall of 2020 it is reasonable to do so.    Second, although Balkin assures readers that we are already in transition, headed towards a second progressive era, he never identifies the vehicles that will accomplish that transition.  He says little about presidential contenders or the capacity of the presidency as a force for progressive change.  He pictures the parties as internally conflicted and ineffectual.  He dismisses the judiciary.  He portrays organized labor as a spent force.  He says little about social movements that could conceivably mobilize the energy, ideas, and popular support needed to decisively reorient the governing regime.  He says at various points that the citizenry should not be passive and expect historical cycles to turn on their own.  But his analysis actually replicates the attitude against which he warns.  He claims that wheels are turning but without identifying anything in particular that is moving the wheels.  The result is a quasi-religious appeal to constitutional resurrection.   The progress that Balkin promises is by no means linear.  But as a matter of faith he asserts it will certainly reappear. . . even without the aid of any force that he can identify.   Third,  far from feeling comforted by Balkin’s invocation of mandatory ”hope,”  I feel distrustful of it.  When Balkin tells me that his book is motivated in part by a desire to shore up my morale,  I am left to wonder whether I am getting a straight dose of social analysis or a dose that is diluted by an officious concern with my psyche.  I would prefer social analysts to do their work coldly and clinically, while leaving clerics, therapists, and kindred helpers to do their work on a different register.  I am both weary and wary of obligatory optimism.  If  analysts believe that a situation is hopeless, they should say so.  To do otherwise is intellectually irresponsible.  I accept the sincerity of Balkin’s restrained optimism.  I just disagree with it.  I don’t see a path forward toward anything that deserves to be called “renewal.”  The most likely positive outcome  that I can see is mere avoidance of utter ruin in just a few weeks in the presidential election.  But even if Joe Biden and Kamala Harris prevail, the constitutional rot that Balkin describes will likely continue to fester.  And then we shall be revisited in four years or eight by a smoother, smarter, more competent Trump.    All things end.  The American Dream is no exception.Randall Kennedy is Michael R. Klein Professor of Law at Harvard Law School. You can reach him by e-mail at rkennedy@law.harvard.edu  

  • 10 birthday facts about President and Chief Justice William Howard Taft
    by NCC Staff on September 15, 2020 at 09:30

    William Howard Taft is a truly unique American figure who led two branches of government, was a wrestling champion and the youngest Solicitor General in American history.

  • Scholar Exchange: Constitution 101: Constitutional Convention (High school and college level)
    by National Constitution Center on September 14, 2020 at 19:15

    In this session, students will examine the issues and events that led to the Constitutional Convention in Philadelphia in the summer of 1787, including the weakness of the Articles of Confederation, Shay’s Rebellion, and the growing need for a new national government. Students will also explore the Convention, and its major turning points and compromises—including the Connecticut Compromise, the Electoral College, the Three-Fifth Compromise, and the Slave Trade Clause.

  • Mueller’s Team Members ‘Accidentally’ Wiped Phones Clean of Data
    by fvanloon on September 14, 2020 at 19:01

    From Breitbart: According to the records Judicial Watch received, 27 phones used by members of the Special Counsel team were reported wiped clean of all data prior to a review by the Special Counsel of phones used by Mueller’s teams for records-preservation purposes. Twenty of those phones were reported wiped clean of data due to The post Mueller’s Team Members ‘Accidentally’ Wiped Phones Clean of Data appeared first on Judicial Watch.

  • FBI’s “Wiped” Phones, The Ambassador’s ‘Enemies List’ & Joe Biden’s Senate Records
    by fvanloon on September 14, 2020 at 18:51

    The ‘Enemies List’ Judicial Watch has fought relentlessly for more information on allegations surrounding ex-US Ambassador to Ukraine Marie Yovanovitch’s ‘enemies list’ – a list compiled to “monitor the activities of U.S. citizens,” as Fitton described. Recently released documents have now confirmed the existence of the ‘enemies list’, which was compiled by the Ambassador’s staff The post FBI’s “Wiped” Phones, The Ambassador’s ‘Enemies List’ & Joe Biden’s Senate Records appeared first on Judicial Watch.

  • Faith in Renewal
    by Guest Blogger on September 14, 2020 at 13:45

     For the Symposium on Jack M. Balkin, The Cycles of Constitutional Time (Oxford University Press, 2020). Stephen Skowronek The Cycles of Constitutional Time draws a bit on my own work on cycles of “political time,” but Balkin’s analytic lens is wider. “Constitutional time” is a composite of several different but intercurrent patterns of change, all of which are implicated in the moment at hand. After distinguishing these patterns, Balkin draws inferences about near term prospects from their contingent juxtapositions and mutual impingements. As a scholarly construction of where we are and whither we are tending, this is state of the art. Balkin situates the current juncture within three cycles observable in our political history: a cycle of political decay and regime reordering, a cycle of polarization and bipartisanship, and a cycle of constitutional rot and renewal. On the face of it, the configuration of these elements in American government today appears about as debilitating as it can be. The conservative regime that took hold in the wake of the Reagan Revolution is in an advanced state of decay, and its degeneration coincides with a time of extreme polarization and constitutional rot. Balkin dwells on this seemingly dire convergence. By distinguishing its several aspects, and by reckoning with their interaction, he takes full measure of the gravity of our situation. Remarkably, however, the prognosis offered is cautiously optimistic. Optimism follows from thinking cyclically. Balkin’s keen appreciation of this system’s regenerative capacities allows him to address the current malaise without recoiling and, in the process, to point the way out. If the past in any guide, Trump’s political intervention is unlikely to arrest, reverse, or otherwise surmount the crisis of the old order. The cycle of political decay and regime reordering points instead to a Trump misfire that will cut deeply against the conservative project and considerably brighten the prospects for a progressive reordering. Much of Balkin’s book is a sober assessment of the outlook for a new progressivism and its potential to overcome the degradations of polarization and rot. I share Balkin’s assessment of Trump’s moment in political time, and although I am not by nature an optimist, I too think that the prospects for a progressive reordering are brightening. Cycles should inform and encourage practical work toward that end, for, as Balkin is careful to note, past patterns do not determine the future. Useful as it is to call attention to the rhythms and rhymes, there are no exact parallels. Specifying a variety of different cycles at work on our constitutional system and indicating how they interact in unique configurations is itself an important advance in conceptualizing themes and variations. Balkin’s response to the skepticism I have expressed in past work about the capacity of presidents to continue to serve as drivers of political reconstruction follows in the same spirit: he acknowledges emergent obstacles to another presidentially-led political reconstruction, but rather than give up on the prospects for reordering, he illuminates alternative pathways to a similar end. All this said, Cyclespasses lightly over an issue that is worth opening up. The conversation yet to be had is wedged between the diagnosis and the prognosis on offer. As I see it, the current interregnum, pregnant as it is with progressive possibilities, presents an especially severe test of the regenerative capacities of the American constitutional system. I take Balkin’s optimism as a prod to the rest of us to think more deeply about what lies behind the cycles we observe in our history. For all that has been said about these patterns, we know surprising little about why this system has periodically reordered itself. Faith in renewal has a lot of history to draw on, but I would feel more confident in that history if I had a firmer grasp of the features of the system that have been most essential to producing the regenerative effects. The point is pressing because the periodic reordering of constitutional relationships has not been benign. Introducing sweeping substantive changes at every turn, the reordering associated with these cycles has repeatedly altered constitutional government itself. If we let the cyclic rhythms of change substitute for direct attention to the changes they actually brought about, we risk discounting political developments that might be complicating system dynamics and with them, the patterns we see so vividly displayed in the past. Substantive developments are unavoidable when accounting for variations observed from one cycle to the next. Balkin’s response to the concerns I have expressed about the presidents continuing to play their historic role is a case in point. The outstanding question is whether such developments might have an even more profound effect, whether the regenerative capacities on which this system has relied might be weakened, or washed out altogether, by its repeated reformulation and redeployment. I am a long way from drawing firm conclusions about this. I am willing to entertain the possibility that the effects of all this substantive reworking on the system’s regenerative capacities are minimal, but I don’t think we can assume this to be so, and even if things shake out again as our history would predict, it would be helpful to know why the cycles persist despite manifest transformations of the system itself. Let me illustrate my concern with reference to three developments in particular. The first speaks to Balkin’s cycle of polarization and bipartisanship. As he observes, a period of relative bipartisanship spanning the middle decades of the twentieth century, was sandwiched between two periods of intense polarization. Balkin’s forecast of a new era bipartisanship harkens back to the earlier transition out of the stark polarization of the late-nineteenth century. Since we have worked our way out of polarization before, it not at all implausible that a similar transition is in the offing. But it seems to me no small caveat that those decades of relative bipartisan cooperation were themselves transformative. They witnessed the construction of an activist government and a vast administrative state. It is not much of a stretch to imagine that the effective operation of an administrative state depends on a modicum of bipartisan consensus. It no stretch at all to see that the full development of America’s administrative state has put enormous strain on the consensus upon which it emerged. The current period of extreme polarization is unique not only because it has arisen in the presence of an administrative state but also because the intrusions of programmatic government have become a prime driver of polarization, pushing the parties farther apart. Projecting forward to a second modus vivendi, we need to imagine a new and sustainable relationship between partisanship and activist government. Balkin’s analysis anticipates a relatively moderate progressive consensus, and that might well do the job, but it seems hard to square with other developments in plain view. For instance, the unprecedented concentration of policy making authority at the center has abetted the rise of a permanent and well-endowed class of intense policy demanders who have no apparent interest in consensus and who pull at the administrative state from the right and the left. That has made it much harder to gain agreement on the rules that might stabilize operations one way or the other. Looked at somewhat differently, the modicum of national consensus necessary to sustain the administrative state today is likely to sorely test the patience of progressive interests looking to the EPA for a concerted assault on climate change, and to the Justice Department for a decisive assault on systemic racism, and to HHS for more comprehensive social supports. My second concern is closely related to the first, but it may go more directly to the heart of the matter. Balkin calls attention to a cycle of constitutional rot and renewal, but there too, secular changes are at work that seem worthy of worthy of attention. That is to say, part and parcel of any conception of “constitutional time” are structural shifts that have eroded restraints categorically along the way. Consider a developmental dynamic that relates incremental social inclusion to the incremental relaxation of constitutional discipline. The Civil War brought about the abolition of slavery, and in the process, it liberated the national power from the straightjacket of state-contract theory. The New Deal incorporated working class interests into the high affairs of state, and in the process, it shattered the restraints of the Commerce Clause. The civil rights movement upended Jim Crow, and in the process, it broke the back of federalism. Each of these great democratic breakthroughs prompted a major reordering of constitutional relationships, and each reordering expanded political access to national power at the expense of former institutional restraints. Put another way, before the 1970s, reordering at the top was still a relatively contained exercise, constitutionally and socially. Every prior regime was built on the major social exclusions still remaining, exclusions anchored governmentally by localism and prior right. Now, with those structurally-supported social exclusions all but eliminated, American politics has become fully nationalized, and reordering at the top has to proceed, for the first time, without any elite assurances regarding limits and restrictions. This newfound inclusiveness is, I suspect, no minor stipulation conditioning the traditional dynamics of constitutional renewal. I’m not sure “rot” is the right word for this, but democratization does seem to have made it harder for American government to sustain consensus on rules. The free-for-all quality of current institutional contests suggests a secular erosion at their foundations, an erosion that may prove difficult to repair. It is certainly no coincidence that the conservative reordering which took hold in the 1980s has been accompanied by a series of rather desperate efforts to throw up new barriers to access, and though the effect of those efforts should not be discounted, I think it is fair to say that containment is hard to reestablish once its old constitutional supports have been shattered. By the same token, we have no experience of a progressive reordering under conditions of full inclusion. As Ira Katznelson and his colleagues have documented, progressivism in 20thcentury government rested on an elite consensus regarding Jim Crow. Any new progressive order will have to carry in its train a much wider range of social interests, and it will have to stabilize a constitutional system shorn of fixed relationships by prior developments. This leads to a final concern. The regime-based structure of American government so vividly displayed in our history rested in good measure on the development of new instruments of institutional cooperation and collective responsibility. Balkin calls our attention to the most glaring impediment to cooperation in a new progressive regime: the institutionalization of movement conservativism in the judiciary. The coming court battles will be true to form, characteristic of the politics of reordering. But changes on other fronts suggest novel challenges. In the past, political reordering has drawn on extra-constitutional institutions and arrangements that bridged the separation of powers, fostering mutual buy-in and cooperation between the president and the Congress and between the national and local governments. For example, through most of our history, governmental institutions were bound together by locally-based parties and the convention system of presidential nomination. Cooperation was also facilitated by arrangements that established common ground in national administration. That was true of both the spoils system, which fused national politics and national administration to localism, and of the progressive system, which insulated national administration from national political divisions with extensive protections for knowledge-based authority. The modicum of inter-branch cooperation and collective responsibility once achieved through various arrangements of party and administration has been under severe strain since the 1970s. The demise of convention nomination and the rise of “presidential parties” have made presidents far more independent in political action, and doctrines like the “unitary executive” (on the right) and “presidential administration” (on the left) have fostered an executive branch more hierarchically organized under the president’s direct political control. Presidentialism of this sort is unlikely to recede anytime soon, and it too carries profound implications for a stable institutional reordering. Presidentialism turns control of the White House into the all-consuming preoccupation of the nation’s political interests. It reduces presidential incentives to buy in to new instruments of institutional cooperation, and it fosters confrontation and brinksmanship in inter-branch relations. Rather than binding things together in a new regime, presidentialism accentuates the whipsaw effect of change from one administration to the next. None of this is to deny the many promising signs of a progressive opening. The question is whether developments like the creation of an administrative state, the democratization of the polity, and the rise of presidentialism are just incidental complications to underlying processes of renewal, or whether those processes have themselves been compromised by our long history of constitutional adaptation. Common sense tells us that no institutional system with any integrity of its own is going to be infinitely adaptable. That is reason enough to try to identify the critical properties that have facilitated this system’s repeated regeneration. Until we do that, the cycles of constitutional time may stimulate more wonder than confidence.  Stephen Skowronek is Pelatiah Perit Professor of Political Science at Yale University. You can reach him by e-mail at <stephen.skowronek@yale.edu>.

  • Balkinization Symposium on the Cycles of Constitutional Time
    by JB on September 14, 2020 at 13:30

    This week at Balkinization we will be holding a symposium on my new book, The Cycles of Constitutional Time (Oxford University Press, 2020).  We have assembled a terrific group of commentators, including Khiara Bridges (Berkeley), Jed Britton-Purdy (Columbia), Mark Graber (Maryland), David Grewal (Berkeley), Stephen Griffin (Tulane), Randy Kennedy (Harvard), Sanford Levinson (Texas),  Stephen Skowronek (Yale), Julie Suk (CUNY), Sam Wang (Princeton), and Mariah Zeisberg (Michigan). At the end of the Symposium I will respond to the commentators.

  • Void the police contracts
    by Andrew Koppelman on September 13, 2020 at 16:12

    Police unions all over the US have negotiated contracts that protectofficers from discipline for misconduct.  The result is that, so long as these deals are in force, cities are stuck with officers who are uncontrollably reckless and violent.  But a body of forgotten law from the nineteenth century shows that states can free themselves from these fetters.I explain in a new column at The Hill, here.

  • On this day, the transition begins to our Constitutional government
    by NCC Staff on September 13, 2020 at 10:00

    The date of September 13, 1788 isn’t celebrated as a major anniversary in American history, but it was a big day in the creation of our current form of constitutional government.

  • On this day, Supreme Court orders Little Rock desegregation
    by Scott Bomboy on September 12, 2020 at 10:20

    On September 12, 1958, a unanimous Supreme Court declined a Little Rock School District request to delay desegregation mandated by the Court’s Brown v. Board ruling by more than two years.

  • Mueller Team ‘Wiped’ Phones
    by fvanloon on September 11, 2020 at 20:14

    Strzok-Page Emails Show FBI Investigated President Trump’s Tweets Critical of Obama and FBI Did Mueller Lie to the House Judiciary Committee? Judicial Watch Court Battle for Joe Biden’s Senate Records at the University of Delaware We Must Never Forget Strzok-Page Emails Show FBI Investigated President Trump’s Tweets Critical of Obama and FBI Perhaps you will The post Mueller Team ‘Wiped’ Phones appeared first on Judicial Watch.

  • Battle for the Constitution: Week of September 7th, 2020 Roundup
    by NCC Staff on September 11, 2020 at 18:39

    Here is a round-up of the latest from the Battle for the Constitution: a special project on the constitutional debates in American life, in partnership with The Atlantic.

  • Constitutional cases resulting from the 9/11 attacks
    by Michael Boyd on September 11, 2020 at 11:03

    On September 11, 2001, terrorist attacks carried out against the United States would become the catalyst for at least two wars, dozens of new pieces of legislation, the creation of the Department of Homeland Security, and a slew of court cases that would test the boundaries of the Constitution.

  • Is America a Myth?
    by Sandy Levinson on September 10, 2020 at 20:12

     That is the title of a quite remarkable essay by Robin Wright in the New Yorker.  Among other things, it takes note of Richard Kreitner’s new book Break It Up, which I’ve earlier written about, though she also discusses at some length a book by Colin Woodard, Union:  The Struggle to Forge the Story of United Staes Nationhood, which he apparently suggests–I’ve not yet read it–is indeed a myth.  I have written several times about a foundation-stone of that myth, John Jay’s essay published as Federalist 2, in which he invents a demonstrably preposterous narrative of American homogeneity in order to persuade his readers that we already are one nation and should therefore ratify the new Constitution presumably based on that premise.  The first session of a reading course I’m giving this semester on the political thought of Abraham Lincoln focused on his well-known address in 1838 to the Springfield Lyceum, surely the most-studied political speech in American, or perhaps world, history presented by a 29-year-old unknown to an obscure community gathering.  One of its major themes is how a sense of national identity forged in the American revolution–what I persist in calling American secession from the British Empire–will be maintained once the generation of people who actually fought in the revolution, or even youngsters who could hear the reminiscences of their parents and grandparents, left the scene.  He would later refer, of course, altogether unsuccessful, to the “mystic chords of memory” as the bonds of the Union that should prove sufficient to prevent secession.  I note, incidentally, that this is the 75th anniversary of the conclusion of the “Good War” in 1945.  As Henry Longfellow wrote in an only somewhat different context, “hardly a person now alive remembers that day and year.”  Is it possible, in today’s America, to construct a truly collective memory that unites us?  So, more and more, I really do wonder what it is, other than what political scientists call “path dependence,” that maintains us as an entity called the United States of America.  The Declaration of Independence concludes with the rueful statement that the bonds of affection that had formerly kept us within the British Empire had become fatally frayed because of the alleged “tyranny” of King George III and the Parliament in London.  And James Buchanan made a somewhat similar comment in his December 1860 last Message Message to Congress that the Union had to be kept together by affection and not by force of arms, even though he agreed that secession was unconstitutional.  Do “we” have the requisite levels of affection vis-a-vis our political adversaries, or are we instead living in an increasingly Schmittian world divided between friends and enemies?  If, as I fear, the answer is the latter, then what prevent civil war?  And why shouldn’t secession be viewed as a peaceful, if awkward, preferable alternative?  

  • On this day, the name “United States of America” becomes official
    by NCC Staff on September 9, 2020 at 09:40

    On September 9, 1776, the Second Continental Congress adopted a new name for what had been called “the United Colonies.” The moniker United States of America has remained since then as a symbol of freedom and independence.

  • The Nixon pardon in constitutional retrospect
    by NCC Staff on September 8, 2020 at 10:00

    President Gerald Ford’s pardon of Richard Nixon on this day in 1974 generated a national controversy, but in recent years, some of the pardon’s biggest critics have changed their tunes on the unprecedented move.

  • 10 fascinating facts about the Labor Day holiday
    by NCC Staff on September 7, 2020 at 11:20

    The first Monday in September is celebrated nationally as Labor Day. So how did we get the holiday and why is no one quite sure who created it?

  • The Cycles of Constitutional Time (Oxford University Press, 2020)
    by JB on September 1, 2020 at 12:00

    Oxford University Press has just published my new book, The Cycles of Constitutional Time.  Here is a summary of the book by chapter:General Summary of the BookAmerica’s constitutional system evolves through the interplay between three cycles: the rise and fall of dominant political parties, the waxing and waning of political polarization, and alternating episodes of constitutional rot and constitutional renewal. America’s politics seems especially fraught today because we are nearing the end of the Republican Party’s long political dominance, at the height of a long cycle of political polarization, and suffering from an advanced case of “constitutional rot.” Constitutional rot is the historical process through which republics become increasingly less representative and less devoted to the common good. Caused by increasing economic inequality and loss of trust, constitutional rot seriously threatens the constitutional system. But America has been through these cycles before, and will get through them again. America is in a Second Gilded Age slowly moving toward a second Progressive Era, during which polarization will eventually recede.The same cycles shape the work of the federal courts and theories about constitutional interpretation. They explain why political parties have switched sides on judicial review not once but twice in the twentieth century. Polarization and constitutional rot alter the political supports for judicial review, make fights over judicial appointments especially bitter, and encourage constitutional hardball. The Constitution ordinarily relies on the judiciary to protect democracy and to prevent political corruption and self-entrenching behavior. But when constitutional rot is advanced, the Supreme Court is likely to be ineffective and may even make matters worse. Courts cannot save the country from constitutional rot; only political mobilization can.Chapter One: The Recent UnpleasantnessAmerican politics appears dysfunctional because the country is going through a very difficult transition. Understanding politics in terms of recurring cycles can offer some hope in troubled times. There are three cycles at work: a cycle of the rise and fall of political regimes; a cycle of polarization and depolarization; and a cycle of constitutional rot and renewal. America is facing similar challenges as other constitutional democracies, but America’s party system, institutional history, and constitutional structures affect the way that our politics processes these challenges. Hence there is reason for a guarded optimism. We are at the end of our Second Gilded Age which will give way to a Second Progressive Era. Even in our bitterly polarized world, we can already see signs of how American politics will eventually depolarize, creating new opportunities for cross-party collaboration.Chapter Two: The Cycle of RegimesAmerican political history has featured a series of successive governing regimes in which political parties compete.  During each regime one of the parties tends to dominate politics practically and ideologically. The regime rises and falls. We are at the end of the Reagan regime which began in the 1980s, in which the Republican Party was the dominant party and set the basic agendas of politics. That regime has become the victim of its own success and is now nearing exhaustion.Stephen Skowronek’s model of presidential leadership in political time suggests that Donald Trump is probably a disjunctive president who brings the Reagan regime to a close. Politics during the last years of a regime are often confusing and dysfunctional, and this period is no exception. Trump may avoid disjunction and give the Reagan regime a second wind, like William McKinley did in 1896. Although this possibility is very real, it runs counter to long-term demographic trends. The next regime is more likely to feature the Democrats as the dominant party.Chapter Three: The Cycle of PolarizationAmerican politics features very long cycles of polarization and depolarization between the political parties. Politics polarized leading up to the Civil War and remained polarized until the end of the First Gilded Age. Then began a long period of depolarization. Polarization started increasing once again in the middle of the twentieth century, and we are now near the peak of the current cycle. Polarization is a characteristic feature of the Reagan regime. Although Republican politicians used strategies of polarization to gain power, polarization made it increasingly difficult for them to govern, and will eventually lead to the regime’s undoing.Polarization tends to last for very long periods of time. Nevertheless, our current polarization will eventually recede, for reasons similar to the depolarization that began in the early 20th century: rates of immigration are gradually decreasing, demands for redistributive programs are growing, and the party coalitions will become increasingly incoherent, making cross-party deals possible once again. But these processes will occur slowly. We should not expect relief overnight.Chapter Four: Constitutional CrisisAmerica’s dysfunctional politics and Donald Trump’s presidency have caused many people to worry that the country is in the middle of a constitutional crisis. That is not the case. A constitutional crisis occurs when a constitution is about to fail at its central purpose—to keep struggles for power within the boundaries of law and the Constitution. Constitutional crises are rare in American history, and America is not currently in a constitutional crisis, although it is facing a series of worrisome political crises. When Americans talk about constitutional crisis, they are really describing constitutional rot, which is discussed in the next chapter.Chapter Five: The Cycle of Constitutional Rot and RenewalFor the past thirty years the United States has been suffering from increasing constitutional rot. Constitutional rot is the decay of the features of a constitutional system that maintain it both as a democracy—responsive to popular will, and as a republic—devoted to the public good. The Constitution’s framers believed that all republics would eventually decay, so they designed the constitutional system so that things would bottom out before the country turned to mob rule, oligarchy, or dictatorship. They sought to buy time for democracy so that the inevitable periods of constitutional rot would be followed by periods of constitutional renewal.  There have been three major episodes of constitutional rot in our history: the rise of the Slave Power in the years before the Civil War, the First Gilded Age, and this, our Second Gilded Age.Constitutional rot often produces demagogues. Donald Trump is a demagogue. His rise to power was made possible because constitutional rot has been growing for a long time. The bad news is that constitutional rot in the United States is by now very advanced. The good news is that political changes offer possibilities for renewal.Chapter Six: Judicial Review in the Cycles of Constitutional TimeThe cycles of constitutional time affect the work of the federal judiciary in multiple ways. Because of life tenure, the judiciary is a lagging indicator of the cycles of politics.  Hence judicial time is often out of sync with political time.  Judicial review is shaped by the strategy of partisan entrenchment: the political parties attempt to install jurists who will be ideologically sympathetic. The cycles of constitutional time affect the political supports for judicial review—the reasons why politicians accept judicial review and have helped to construct the power of the federal courts over time.Chapter Seven:  How the Rise and Fall of Regimes affects Judicial ReviewThe rise and fall of regimes shapes partisan attitudes about judicial review. How people feel about judicial activism and judicial restraint depends on where they are in political time, and which party tends to control the federal courts. The parties’ positions are mirror images. Over the course of a regime, the dominant party increasingly relies on judicial review to achieve its goals, while the opposition party becomes increasingly skeptical of judicial review and advocates judicial restraint—although neither party ever fully abandons using judicial review to advance its policies. As the cycle moves from the beginning of a regime to its final days, the parties—and the legal intellectuals allied with them—gradually switch positions. The party of judicial restraint becomes the party of judicial engagement, and vice-versa. The effect, however, is generational; older people may stick with their hard-won lessons about the courts, while younger generations, who have very different experiences, take contrary positions.Chapter Eight: The Role of Constitutional Theory in the Cycle of RegimesConstitutional theories such as originalism and living constitutionalism evolve to reflect the changing attitudes of partisans and legal intellectuals in political time. They also develop to reflect changing views about judicial review and judicial restraint. For example, while conservative originalism began as a justification for judicial restraint, it soon evolved to justify strong judicial review; the same thing happened to living constitutionalism earlier in the twentieth century. Because we are near the end of the Reagan regime, Democrats are invested in judicial restraint and Republicans in judicial engagement. The situation is closest to the one faced by Democrats in the 1930s, which led to the constitutional struggle over the New Deal. Democrats’ relative hostility to the courts will continue until Democrats once again gain control through partisan entrenchment. However, because the Trump Administration has worked hard to stock the courts with as many young conservative jurists as possible, this change may take some time.Chapter Nine: How Cycles of Polarization and Depolarization Shape the Exercise of Judicial ReviewThe cycle of polarization and depolarization affects the political supports for judicial review. When politics is depolarized, politicians tend to let judges handle basic constitutional questions so that politicians can fight over the spoils of everyday politics. Judicial review tends to enforce the values of national political elites, especially against state and local governments.When the country is polarized, however, elite consensus evaporates. Political elites disagree about everything, so judicial review cannot do the same work. Instead, judicial review allows polarized political elites to win victories they can no longer win in the political process. As legislative politics becomes mired in polarization, the judiciary becomes an ever more important venue for achieving policy victories. This increases the urgency and bitterness of partisan fights over judicial appointments. Strong polarization encourages the parties to engage in constitutional hardball to secure ideologically aligned judges and prevent the other party from appointing judges.Chapter Ten: Law in the Time of Constitutional RotIn periods of advanced constitutional rot, judicial decisions become especially polarized. Judicial majorities tend to reach decisions that increase economic inequality, shrink the electorate, and help maintain political oligarchy.  Members of the dominant party want judges to help them stay in power, to support politicians’ self-entrenching behavior, to defend and protect politicians from charges of corruption, and to enrich their financial supporters. When constitutional rot is advanced, the “high politics” of constitutional principle and the “low politics” of partisan advantage begin to converge. As a result, the judiciary tends to be part of the problem rather than part of the solution.Ordinarily, the U.S. Constitution relies on the judiciary to protect democracy and republican government, and to prevent political corruption and self-entrenching behavior. But in periods of advanced constitutional rot, the Supreme Court and the federal judiciary are likely to be ineffective and may even make matters worse. Although courts may protect democracy intermittently, they may be the least reliable when the country needs them the most.Chapter Eleven: Judicial Politics and Judicial ReformIn the early years of the next regime, conservative courts will face off against liberal Democratic politicians. Courts are very unlikely to be able to do much to repair constitutional rot. This does not mean that people should give up on judicial review; rather, it means that they should not put their hopes in an institution that cannot do much to cure deeper problems. Constitutional renewal must come from popular mobilizations and demands for reform, including constitutional reform.Growing frustration with the courts will lead to calls for reform of the federal judiciary. Reforms should aim at lowering the stakes of judicial appointments and assisting depolarization. Court packing proposals achieve neither goal. Three better approaches are (1) instituting regular appointments to the Supreme Court; (2) achieving the equivalent of term limits for Supreme Court Justices by changing quorum rules; (3) increasing the Court’s workload (instead of limiting its jurisdiction); and (4) using sunrise provisions that take effect in the future so that partisan advantages are harder to predict. Each of these proposals can be implemented constitutionally through ordinary legislation.Chapter Twelve: The Turn of the CyclesIn the emerging party system, the Democrats will probably be the dominant party. The two major political parties will face off over identity issues like race, sexuality and religion, but each party will be internally divided over issues of class and economic inequality. These fissures will become more pronounced over time and help provide a long-term path for depolarization.Because each party will have both a populist and a neo-liberal wing, new forms of cross-party alliances become possible—although the Democrats will remain more economically egalitarian than the Republicans for the foreseeable future. Whoever figures out how to create these cross-party coalitions will drive the direction of reform.The next regime will probably be turbulent and politics will be anything but peaceful. Real change that breaks the stranglehold of economic inequality will only come from difficult times that still lay ahead. The good news is that the cycles of constitutional time are slowly turning. The elements of renewal are available, if people have the courage to use them.* * * * *Advance Praise for The Cycles Of Constitutional Time“With a masterful command of political science, history, and the law, Jack Balkin has put our current political and constitutional crisis into a broader and compelling context. The Cycles of Constitutional Time should be read by anybody and everybody trying to get a handle on where we are, why we are there, and where we might be going.”—Norman Ornstein, Resident Scholar, American Enterprise Institute; co-author of One Nation After Trump: A Guide for the Perplexed, the Disillusioned, the Desperate and the Not-Yet-Deported“Of the many books written since and about the election of Donald Trump, few have achieved the vision and depth of Jack Balkin’s Cycles of Constitutional Time. Balkin mounts a comprehensive theory of the American regime, showing how various factors—the rise and fall of Reaganism, the increase in polarization, and deepening constitutional rot—not only brought us Trump but also, curiously and counterintuitively, might help dispose of him. Along the way, Balkin delivers one death blow after another to our most cherished beliefs, including the notion that it will be the Supreme Court that saves us. Far from being a cause for despair, Balkin’s bracing and unblinkered realism offers us, with a proper mix of caution and hope, a way to see past the current moment to a future of some promise.”—Corey Robin, Professor of Political Science, Brooklyn College and the CUNY Graduate Center; author of The Reactionary Mind: Conservatism from Edmund Burke to Donald Trump“Balkin’s analysis of the threats to the constitutional order is both timely and incisive. There has been a lot of talk about our constitutional discontents, but Balkin brings a keen analytical eye and a needed historical perspective to bear to the issue. This book deserves a careful reading from anyone who is concerned about the foundations of the American political system and its future.”—Keith E. Whittington, William Nelson Cromwell Professor of Politics, Princeton University; author of Constitutional Construction: Divided Powers and Constitutional Meaning

  • Learning from Lincoln?
    by Sandy Levinson on August 27, 2020 at 18:15

    As we endure the truly obscene Republican Convention–the only thing it’s lacking is Leni Reifenstahl as the official photographer–I cannot help wonder about the proclivity of the Trumpistas to embrace themselves in the mantle of Abraham Lincoln.  In that spirit, perhaps, we might reflect on the key paragraph of his Second Inaugural Address–spoiler alert, it’s not the “malice toward none and charity toward all” paragraph–as we careen to what I fear is an almost inevitable civil war that will make us wish for the opportunity of a peaceful secession.  In any event, the paragraph is this one:One eighth of the whole population were colored slaves, not distributed generally over the Union, but localized in the Southern part of it. These slaves constituted a peculiar and powerful interest. All knew that this interest was, somehow, the cause of the war. To strengthen, perpetuate, and extend this interest was the object for which the insurgents would rend the Union, even by war; while the government claimed no right to do more than to restrict the territorial enlargement of it. Neither party expected for the war, the magnitude, or the duration, which it has already attained. Neither anticipated that the cause of the conflict might cease with, or even before, the conflict itself should cease. Each looked for an easier triumph, and a result less fundamental and astounding. Both read the same Bible, and pray to the same God; and each invokes His aid against the other. It may seem strange that any men should dare to ask a just God’s assistance in wringing their bread from the sweat of other men’s faces; but let us judge not that we be not judged. The prayers of both could not be answered; that of neither has been answered fully. The Almighty has His own purposes. “Woe unto the world because of offences! for it must needs be that offences come; but woe to that man by whom the offence cometh!” If we shall suppose that American Slavery is one of those offences which, in the providence of God, must needs come, but which, having continued through His appointed time, He now wills to remove, and that He gives to both North and South, this terrible war, as the woe due to those by whom the offence came, shall we discern therein any departure from those divine attributes which the believers in a Living God always ascribe to Him? Fondly do we hope — fervently do we pray — that this mighty scourge of war may speedily pass away. Yet, if God wills that it continue, until all the wealth piled by the bond-man’s two hundred and fifty years of unrequited toil shall be sunk, and until every drop of blood drawn with the lash, shall be paid by another drawn with the sword, as was said f[our] three thousand years ago, so still it must be said “the judgments of the Lord, are true and righteous altogether” So I cannot help wonder what the Christian Evangelical base that Trump is counting on for any prospect of victory thinks of this passage of Lincoln’s.  It clearly suggests that the awful carnage of 1861-65–Lincoln didn’t know what would come thereafter–was the price perhaps justifiably paid by a sinful country under Divine judgment.  If one is a secularist, as I consider myself to be, then this paragraph is unmitigated nonsense, but, then, so is Evangelical Christianity or, for that matter, any and all other religions, even if we believe, for political reasons, as does Andy Koppelman, that believers must be accommodated in order to preserve civil peace.  But I’m assuming that there are some people who take Lincoln’s brand of religion seriously, who believe, as did the ancient Hebrew Prophets, that we indeed live under the yoke of Divine judgment.So if one takes Lincoln’s theology of 1861-65 seriously, then is it thinkable that the coming civil war should also be conceptualized as “God’s will” that “all the wealth piled up” by the exploitation of the only formally freed “bondsmen (and women)” “shall be sunk”?  How would one seriously debate such a premise, as is true, of course, of Lincoln’s initial assertion.  As with Sinai, Christ’s resurrection, or Allah’s dictation to Mohammed, one either accepts it as the recognition of ontological truth or dismisses it as pure nonsense (or, as I do, settles for an agnosticism that simply states that our epistemological resources give us no reason to believe that it is true, but who really knows, as with the possibility of visitors from outer space).  I suppose it is possible, as the Trumpistas would no doubt argue, that America has removed all residues of the 250 years of slavery (as of 1865) and that anyone who argues otherwise is a deluded supporter of terrorism, like Joe Biden.  But my real point, is that if one is going to cite Lincoln, one should give him the courtesy of taking his thought seriously, unlike the intellectual and moral cretins in the personality cult devoted to Donald HJ. Trump.I’m not really interested in hearing from people describing this as a partisan rant or willing to present Herschel Walker as the definitive analyst of Donald Trump’s lack of a racist bone. This is a partisan rant against a fascist cult and, far more importantly, a genuine expression of interest about the continued use of Abraham Lincoln as a go-to source for guidance on our polity a 155 years after his assassination. 

  • Liberal conservatism
    by Andrew Koppelman on August 26, 2020 at 17:41

    Has conservatism any intellectual merit?  Or is it essentially a mere collection of rationalizations for the status quo? With Trump’s influence and visibility, never has the issue been more urgent — or more confusing. Trump seems to be a man of the Right. The Republican Party today is largely defined by loyalty to him. Is he a conservative? The Never Trumpers say he’s not, but why? Is there any form of conservatism that deserves our attention today?A good place to begin to think about those questions is the work of Roger Scruton, who died in January.  Princeton Prof. Robert George called him “the most important Anglo-American conservative thinker of his generation.”  British Prime Minister Boris Johnson tweeted, “We have lost the greatest modern conservative thinker — who not only had the guts to say what he thought but said it beautifully.”I use Scruton’s work to try to sort out what’s attractive in conservatism today – and come out of the closet as myself a conservative of a peculiar sort – in a new piece at the New Rambler, here.  

  • John Bingham in Japan
    by Gerard N. Magliocca on August 26, 2020 at 17:07

    I want to flag a new book that may be of interest. Samuel Kidder’s Of One Blood All Nations discusses John Bingham’s long tenure (from 1873-1885) as the United States Ambassador to Japan. In my book on Bingham, I did not do full justice to this phase of his career. Kidder is in a much better position to do so as a former diplomat with considerable experience in Japan.An important fact that I learned from the book is that Bingham was strongly opposed to the Chinese Exclusion Acts of 1882. His criticism rested partly on the harm that the Act would inflict on America’s standing in Asia, but also partly on the fact that the exclusion was racist. The latter points, of course, tie in nicely with Bingham’s authorship of the Equal Protection Clause.

  • Why must we take Grutter seriously?
    by Sandy Levinson on August 24, 2020 at 18:39

    I confess myself quite mystified by the argument underlying Jason Mazzone’s posting earlier today.  Most obviously, the 25-year limit is dicta rather than holding, unless one really does believe that the Supreme Court is a super-duper legislature entitled to adopt rules and at the same time stipulate a sunset provision, without the slightest semblance of, say, hearings or citation of evidence as to why 25 years instead of 20 or 50 or whatever.  I suspect that the “liberals” signed on to O’Connor’s intellectually problematic opinion because it was necessary to have an “opinion of the Court” actually upholding the Michigan Law School’s admissions procedure, not because they truly believed they were adopting a “rule of law” that would be binding on the future.Secondly, as I have written elsewhere, Sandra Day O’Connor exhibited her complete and total misunderstanding of the “diversity” argument.  I might make sense to say, had the rationale for the program been ratifying past social injustice, that a quarter century from now, i.e., 2028, we’re completely confident that the problems linked to racial discrimination would be over and there would no longer be a need for the program.  It makes no sense whatsoever to say that 25 years from now, there will be need for some degree of self-consciousness about producing a “diverse” student body (assuming, of course, that that is desirable in itself, which is a separate argument).  Consider the admissions process for a music department.  One could simply admit the “best musicians” (based on God knows what criteria) and accept the possibility that in any given year (or group of years)  there would simply be no oboists, double bassists, tubas, harpists, or trombones admitted, so that the orchestra that’s an important part of the music school will have to find compositions lacking these instruments or just do without.  In any event, one would be relying on the “invisible hand” to produce the mix of instrumentalists (or vocalists among tenors, baritones, altos, sopranos, and basses).  Not to put too fine a point on this, that would be a crazy admissions process.  (I could also elaborate the point in terms of sports analogies, whereby the football program in any given year could have 20 quarterbacks and no interior linemen, etc.). Maybe it suffices to say that a law school has to concern itself with the most elemental kind of “diversity” in terms of different curricular interests, so that even if the “best” dozen candidates in a given year, all of whom would be thrilled to accept an appointment at Law School X, are constitutional layers or tax specialists, one would still, nonetheless, hire “less qualified” (on the basis of God knows what metric) applicants who actually want to teach property or torts, etc.  So her opinion, intellectually, comes close to being utter nonsense, though it produced what many of us believe to be the right result. So what Justin has to explain is exactly why law school deans, or anyone else, should take fully seriously a 5-4 opinion that was fatally flawed, intellectually, the day that it was decided and where the Court is totally without the authority to stipulate sunset provisions for its own decisions.

  • Do 150 Law School Deans Reject Grutter?
    by Jason Mazzone on August 24, 2020 at 16:46

    June 23, 2028 is on the horizon. That’s the date on which the Supreme Court “expects[] . . . the use of racial preferences will no longer be necessary to further the interest” of public law schools in “student body diversity.” Grutter v. Bollinger (2003). When, as seems inevitable, the Court confronts Grutter’s built-in expiration date, what will it make of this recent statement from 150 law school deans?: Preparing law students to be lawyers requires that they should be educated with respect to bias, cultural awareness, and anti-racism. Such skills are essential parts of professional competence, legal practice, and being a lawyer. We believe that every law school should develop such training and education for its students. . . . We believe that the ABA should require, or at least consider requiring, that every law school provide training and education around bias, cultural competence, and anti-racism.In Grutter, the Court had a particular view of the compelling interest that justified the use of race in admissions. Importantly, it did not see student diversity as an interest in and of itself. Instead, student diversity was the means to the educational and broader societal missions of law schools. Diversity within the law school, the Court explained, “promotes cross-racial understanding, helps to break down racial stereotypes, and enables students to better understand persons of different races.” It “better prepares students for an increasingly diverse workforce and society, and better prepares them as professionals.” And it promotes law schools as legitimate “training grounds” for society’s “leaders.” The Court also found in Grutter that consideration of race in admissions was necessary to achieve these goals: there did not exist a race-neutral alternative.The law deans’ letter seems to cast doubt on all of this. It suggests that over the past seventeen years use of race in admissions has not produced the interests that Grutter recognized as compelling. Instead, the deans report, “[w]e are in a unique moment in our history to confront racism that is deeply embedded in our institutions, including in the legal profession” and thus a brand new approach is required. So too, the deans letter suggests, there is in fact a race-neutral alternative: the training requirement the deans are now proposing. Perhaps one avoids these conclusions by saying the following: consideration of race in admissions has generated some of the contended benefits of diversity but additional steps are needed to fully secure the benefits. Perhaps. It isn’t the position the law school deans advance in their letter. And in this business, with a ticking clock, precision might be everything. 

  • Perry v. United States and the Constitutional Canon
    by Gerard N. Magliocca on August 24, 2020 at 15:32

    Last week I appeared on the third episode of the new podcast “Clauses and Controversies,” hosted by Mitu Gulati and Mark Weidemaier. The episode focused on Perry v. United States, a 1935 Supreme Court case which concluded that there was no remedy for Congress’s abrogation of the gold clause provisions in United States Treasury bonds. At one point, Professor Gulati and Professor Weidemaier asked me a fine question for which I did not have a fine answer: Why isn’t Perry one of the most important cases in the constitutional canon given that the decision was extremely important and a huge success? I wrote a law review article about Perry several years ago, but even I haven’t taught the case in a class.Let me summarize Perry for those of who have not heard of the case. Prior to 1933, United States Treasury bonds contained standard “gold clauses” stating that the bondholder would be repaid in gold dollars. After 1933, though, these gold clauses were abrogated by Congress and by the President. The bondholders sued for damages. A plurality opinion by Chief Justice Hughes concluded that Congress lacked the power to abrogate public gold clauses (citing Section Four of the Fourteenth Amendment). He then concluded, in reasoning that is variously described as “puzzling,” “stupefying,” or “nonsense,” that the bondholders were not entitled to a remedy. In essence, then, the abrogation was upheld without being upheld. Market reaction to the decision was very positive, and many observers felt that a contrary ruling would have precipitated another economic disaster.Why, then, is Perry totally ignored by modern constitutional lawyers? One answer is Chief Justice Hughes made his opinion as confusing as possible. He apparently wanted to preserve the legal fiction that United States debt was inviolable (by denying that Congress could devalue) while still allowing the devaluation to go forward. This lack of clarity probably makes Perry less accessible. Another idea is that nothing similar has occurred in the United States since the 1930s, though elsewhere in the world Perry gets more attention because there are recurring debt defaults or devaluations across the globe.There’s a bigger issue though. Constitutional law is very good at analyzing decisions that (broadly speaking) fit into some doctrinal category or a decision that purports to create a new such category. What should the legal standard be? How does the legal standard draw from precedent? What are the standard’s implications? Should there be exceptions? And so on. What constitutional is law is not good at is looking at cases that can be described as “one-way tickets,” “hard cases,” or “sui generis.” Here the relevant question is whether the Supreme Court is answering a specific and very important legal problem sensibly without all that much concern for the past or future. Perry is one of these cases. So was Bush v. Gore.

  • “Originalism” and the Natural-Born-Citizen Debate
    by Marty Lederman on August 24, 2020 at 12:14

    Last week, I joined 40 other scholars in a letter published here, explaining why there’s no serious question that Kamala Harris is constitutionally eligible to be elected Vice President.  In a post on the Originalism Blog provocatively entitled “Originalism Is Our Law (At Least When It Suits Us),” Mike Ramsey concurred with the bulk and conclusion of our letter.  Professor Ramsey also, however, accused at least some of us of inconsistency, in that we’re “prominent originalism critics” and yet we signed a letter that relies upon what Ramsey calls “originalist arguments.” In a post this morning over at Dorf on Law, Mike Dorf and I explain that, contrary to Professor Ramsey’s reading, our letter doesn’t rely exclusively on the “original public meaning” of the constitutional text–indeed, our letter doesn’t rely on textual “meaning” at all.  To be sure, the letter does (in part) invoke pre- and early constitutional understandings of whether persons born in the United States to foreign nationals are “natural born citizens” eligible for the presidency (and thus to be elected Vice President, too).  As Mike and I explain, however, that quite ordinary, common inquiry into early understandings of how the Constitution should operate isn’t at all inconsistent with the critique of contemporary “originalism” that many of the letter’s signatories have made.

  • Secession versus revolution
    by Sandy Levinson on August 21, 2020 at 04:07

    Several readers object to my insistence on describing 1776 as a “secession from the British Empire” instead of “The American Revolution.”  I am basing this on the argument of David Armitage, the historian at Harvard, and his book on “Civil War.”  Quite briefly, he defines “civil wars” as contests over who will control the government of a country.  Think, e.g., of the Spanish Civil War or, for that matter, the English Civil War in the mid-17th century.  The Americans never had the slightest intention of moving on London to place George Washington in control of the British Empire.  They wanted out, and they were willing to engage in a very violent struggle to do so.  Everyone recognizes that the Quebecois, for example, do not envision themselves as engaging in a civil war to take over the government in Ottawa and thus rule Vancouver, but, instead, to leave Canada and establish their own independent country.  Ditto Scottish or Catalonian secessionists.  On the other hand, the Russian or French Revolutions were “real” revolutions in that they were all about who was going to control the entire country in question.I’m really not clear why people are so resistant to recognizing the analytical difference between those fighting civil wars as against those fighting to secede from an existing polity and thus to recognize as well that the American Patriots are accurately described as secessionists instead of revolutionaries, even if one wants to go on and say that some of their political ideas were “revolutionary.”  Perhaps it’s because we falsely identify “secessionism” exclusively with Jefferson Davis and his friends.  As I note, had things taken a different turn earlier in our history, we might all be aware of the Hartford Convention secessionists or, for that matter, the Abolitionist secessionists.  As I’ve written on earlier occasions, I’m sure that every single reader has supported at least one secessionist movement and/or one revolutionary movement and that every single reader has opposed at least one of each.  Why resist the analytical clarity that Armitage brings to understanding events?UPDATE:  Let me admit that I do think that “civil war” may in fact be a misnomer for the events of 1861-18__ (depending when you think the conflict ended, assuming it is truly ended even today).  “War Between the States” clearly accepts the Southern, Resolutions of ’98 view of the Union, which makes me uncomfortable adopting it.  I do believe there was something called a Union that distinguished the U.S. after 1789 from the confederacy of independent states that had preceded it.  I’m not sure what’s wrong with “The War for Southern Independence,” which is descriptively accurate and requires no one to accept the legitimacy of the striving for independence (anymore than the Brits had to accept the legitimacy of our own “Declaration of Independence”).  You can argue, of course, that the Confederates were in fact trying to gain control of the national government (which they effectively had until Lincoln’s electoral vote election) by forcing a compromise that would have let them “return” to the Union with enhanced protections for slavery, even beyond the original Corwin Amendment that Lincoln in fact supported in his First Inaugural.  From this perspective, 1861 was a massive game of chicken over national policy in which neither side had a glimmer of the conflagration that would ensue and they were really fighting over the terms of “union” (as happened, of course, during Reconstruction, which the Southern whites substantially won after 1877). x

  • Break It Up [?]. Richard Kreitner and American Secessionism
    by Sandy Levinson on August 20, 2020 at 18:26

    “To give the victory to the right, not bloody bullets, but peaceful ballots only, are necessary.”  Thus wrote Abraham Lincoln in notes that he used to prepare his notable speeches.  One can, of course, question the empirical validity of his assertion; that it was necessary, in fact, to expend 750,000 lives in order to procure victory for the righteous cause of ending chattel slavery in the United States.  The ballots that elected Lincoln as president were not remotely sufficient.But Lincoln’s statement, and the contrast between “ballots” and “bullets” has also been used more generally to denounce the legitimacy of the very idea of secession inasmuch as the formula was offered—and accepted by many analysts afterward—as a knockdown argument against Southern secessionists.  We settle disputes, it is argued, through elections.  Losers do not have the right to pick up their balls and establish a brand new playing field out of the existing field of play.  Discussions of “constitutional hardball,” which are rife these days—and a major theme of Mark Tushnet’s new book discussed in a recent symposium here on Balkinization—include lots of possibilities, including Court-packing or even, should GOP controlled states refuse to certify electors in states Biden carries after November, the refusal by the Democratic House to seat any members of those states’ congressional delegations (inasmuch as they would, however Republican, no longer comport with what is expected of a “Republican Form of Government”).  No one—or perhaps it should be said “no one who is respectable—is suggesting the ultimate form of hardball, withdrawing from a Union that one might argue has become at least as illegitimate, in important respects, as the British Empire was in 1776.It is, obviously, difficult to the point of impossibility to discuss the Confederate secessionists without taking full account of the actual reason for secession, which was, as Alexander Stephens laid out, the maintenance of white supremacy and slavery.  But anyone interested in the broader issue of secession and secessionism, especially Americans, should realize that the country exists only because of a violent secessionist movement that seceded from the British Empire and proclaimed its independence in 1776 on the basis of the universal right of those who ae “governed” to “consent” to their governors.  This requires us to have a robust theory of what counts as adequate “consent” and, more to the immediate point, whether the mere opportunity to “cast a ballot” is sufficient to require the losers to continue membership in a Union that they believe, also in the language of the Declaration, is not conducive to their “happiness.”  Several recent books provoke this posting.  Two of them, by Jesse Wegman and Alex Keyssar, specifically concern the electoral college, the egregious and indefensible system by which we select our presidents.  I shall have much more to say about them, as well as an additional book by Ohio State Law Professor Edward Foley, when Balkinization publishes an extended symposium on their books in September.  But perhaps the most obvious feature of the electoral college is its separation of “ballots” from the actuality of producing the winner.   The only ballots that really turn out to count are those belonging to the 538 electors who get to choose the president, whether we conceive of them as exercising their own judgment, as was arguably originally envisioned, or serving as the almost literally mindless echoes of the partisan electorates that placed them in office, as the Supreme Court suggested was their proper role in their recent decision involving so-called “faithless” (or what some of us prefer to call “Hamiltonian”) electors.  An almost three-million popular-vote margin of ballots in favor of Hillary Clinton in 2016 proved irrelevant to preventing our being “governed” (if that is really the right word) by a sociopath whose malevolence is tempered only by his incompetence. But enough about 2016. Think back now to 1860, when Abraham Lincoln became president while receiving only 39.8% of the popular vote in a four-candidate election.  He won a handy majority in the electoral college, however.  His election sparked the secession of South Carolina and other states.  We’ll obviously never know what would have occurred had there been a different system of election in operation, whether “ranked-choice” voting or a formal run-off between the two top contenders, Lincoln and his fellow Illinoisan Stephen A. Douglas.  One might, of course, cheer the result because it triggered the conflagration of civil war.  Perhaps John Brown was right that the country needed to be purified by blood sacrifice, as Lincoln himself seemed to suggest in his Second Inaugural.  If that’s the case, then the Electoral College deserves praise for doing its own part in generating the war.  What more need be said?But support for Lincoln’s suppression of secession, because the secessionists were in fact evil men promoting an evil cause, does not really provide a complete answer to the profound issues posed by secessionism, as revealed most dramatically by the very Declaration of Independence that Lincoln repeatedly used as the touchstone of what America was really about.  This, after all, is the importance of his dating the beginning of the Union sanctified at Gettysburg to “four score and seven years” before 1863, which is 1776, not 1787, when the Constitution was written or even 1788, when it was ratified (or 1789, when George Washington took his oath of office).  The legitimacy of secession, of course, was the general topic of another Balkinization symposium a couple of months ago on the very interesting books by Timothy Waters (Boxing Pandora) and Francis Buckley (American Secession). Waters, as some of you may recall, affirmatively defended the idea of relatively easy secession from existing states; Buckley offered a number of very good reasons why the United States would be better off breaking up, though he ultimately counseled against it.I mentioned in my own contribution to that symposium the forthcoming publication of Richard Kreitner’s Break It Up:  Secession, Division and the Secret History of America’s Imperfect Union.  It is now available, and it deserves very wide reading and discussion.  Although I offered an enthusiastic blurb for the book, I want to quote from two other endorsements also on the back jacket.  One is by Eric Foner, certainly one of the most distinguished American historians and the author of what remains the standard history of Reconstruction, as well as a classic book on Lincoln.  Foner describes Krietner as offering “a powerful revisionist account of the troubled history of the American nation, showing how secessionist movements have made their appearance at numerous times, and in numerous parts of the country.”   Not only was America born as the result of a secessionist movement; it has also had many children, so to speak, who learned from the Declaration that they might themselves emulate the Founders.  Rick Perlstein, another distinguished historian, describes Break It Up as “a paradigm-transforming accomplishment….  I don’t know if I’ve ever been more excited to endorse a new book.”  For good reason!Secession was doubly present at the creation, so to speak. There were not only the thirteen colonies, relative to the British Empire.  The finest lawyers in England (and many in the colonies, who became the “Loyalists”) shared the view that the British settlers who comprised the majority of the “patriots” had no right to secede.  Also present though were Vermonters, who had seceded from New York and New Hampshire to construct their own independent country.  It’s not that they didn’t want to join the other colonies that styled themselves the United States of America; rather, the American secessionists apparently thought their principles applied only to the Empire across the sea, and they refused to treat Vermont as a free and independent state.  So, although Ethan Allan and the Green Mountain Boys provided important aid to their fellow secessionists, Vermont actually entered the Union only in 1791, when, like George III, New York and New Hampshire recognized that their cause was lost.  But, as Kreitner amply notes, Vermont was most certainly not the end of the story.  There were a host of breakaway movements from various state, even if they are now known only to specialists.  (Christian Fritz has a marvelous book, American Sovereigns:  The People and America’s Constitutional Tradition Before the Civil War, that, among many other things, delves into these various secessionist movements.)  More important, though, were the Kentucky and Virginia Resolutions of 1798, penned by Jefferson and Madison, respectively, which included overtones of secession within their bitter attacks on the Alien and Sedition Acts.  Kreitner quotes the ever-hotheaded Jefferson as suggesting to Madison that if the laws weren’t repealed, Virginians must “sever ourselves from that union we so much value . . . & in which alone we see liberty, safety & happiness.”  And even Madison, the more sedate of the dynamic duo from Virginia, had written in the Virginia Report that although the “rupture” of the Union was “among the greatest calamities which could befall” the country, it was “not the greatest.  There is yet one greater, submission to a government of unlimited powers.”  The Resolutions are (in)famous for proposing that the Constitution was a compact not among the united American people that Jefferson, righty or not, had evoked in the Declaration, but, rather, among the “sovereign states” that comprised the Union.  And consent given could presumably be taken away.  Although Madison later denied that he was a legitimate source of aid and comfort to John C. Calhoun and other South Carolina firebreathers, it is hard to say that they did not offer a possible, albeit contestable, interpretation of the Doctrines of ’98.As is well known, Jefferson and Madison, as presidents themselves, appeared to a number of Northeastern Federalists, not without reason, as overreaching in their claims of executive power during the Embargo of Jefferson’s administration and then the War of 1812 during Madison’s tenure.  These Federalists thus contemplated secession in order to escape the thumbs of what they perceived as a Virginia political dynasty of slaveholders hostile to the interests of a quite different section of the United States.  Historians may differ as to how serious the threat really was, but there appears to be no doubt that the “s-word” was bandied about by some significant political figures.  More interesting, in a way, is the fact that William Lloyd Garrison, accurately describing the Constitution as a “covenant with Death and an agreement with Hell,” advocated “No Union with Slaveholders” and, therefore, the secession of the North from a thoroughly indefensible Union.  Obviously Garrison was at that time dismissible as a crank, and never became more than a marginal figure in American politics; there was never the slightest possibility of an abolitionist secession.  But imagine, even as a thought experiment, the secession by upper New England, which, perhaps, might look to the prospects of joining Canada., a country that had no worries about having to comply with the hated Fugitive Slave Law.  Indeed, some Black anti-slavery activists advocated a mass movement to Canada in order to achieve the taste of true freedom.  So one might wonder if we would build—and protect with federal force—monuments to James K. Polk or Millard Fillmore if either had sent American troops to Massachusetts or Maine to “kill [their] friends and families]  as “a token of [his] love” for the Union?  (Fellow devotees of Lin-Manuel Miranda’s Hamilton will recognize the words from a wonderful song by King George III explaining his willingness to suppress the American secessionists who were violating their pledge of submission to him as the British Monarch.) Ironically or not, James Buchanan, a justified contender for worst president in our history (at least behind Donald J. Trump) agreed with Lincoln that secession was illegal, but, unlike his successor, believed that the national government was without power to prevent it.  “The fact is,” Buchanan told Congress in his farewell Message of December 6, 1860, “that our Union rests upon public opinion, and can never be cemented by the blood of its citizens shed in civil war. If it can not live in the affections of the people, it must one day perish. Congress possesses many means of preserving it by conciliation, but the sword was not placed in their hand to preserve it by force.”  One might wonder what our reactions would be to this statement if, for example, it had been offered to justify refusing to prevent by force the secession of New England?  Is Buchanan not offering his own version of “malice toward none and charity toward all” avant le lettre?  But that, of course, is not the context for Buchanan’s statement.  He was calling for what might be termed maximal “charity” and minimal “malice” toward white supremacist slaveowners, whose interests he had faithfully endorsed throughout his presidency.  Better to inflict the dogs of war—or so most of us might well think.The great mystery of the Lincoln Memorial is exactly why Lincoln deserves it.  Was it because he manifested an unusual devotion to the Constitution?  (Hardly)  Or that he preserved the Union?  (Possibly, but why should that be enough?)  Or that he became the agent by which chattel slavery was formally ended, both by proclaiming the Emancipation Proclamation (but only in territory not controlled by Union forces, which, of course, also excluded the four slave states that had never left the Union) and, more importantly, by being willing to support Grant and Sherman in what later historians would describe as “total war” devoted to ending the slave regime by any means necessary? (That may indeed be worth the memorial!)As one perhaps expects, Kreitner spends far more time on the period 1776-1876 than on developments thereafter.  As a practical matter, Appomattox was widely viewed as having closed the book on secessionism as even a rhetorical possibility in American politics.  But his final chapter, “Divided We Stand,” notes that its spirit has never been completely suppressed.  Most contemporary secessionists are easily identified with the right; as he notes, however, perhaps the most eloquent call for rethinking the nature of our Union came from George F. Kennan, who in a 1993 memoir described the United States a  “a monster country” fatally infected by “the hubris of inordinate size” (and military power).  “There is,’ Kennan wrote, “a real question as to whether ‘bigness’ in a body politic is not an evil in itself.”  He therefore advocated dividing the United States into “a dozen constituent republics,” including “city-states” comprising New York, Chicago, and Los Angeles.  (This requires mention of another important just-published book by Ran Hirschl, City, State, Constitutionalism and the Megacity, which focuses on the reality of the dominance of ever-larger “megacities” and the baleful inadequacy of almost all national constitutions, certainly including our own, with regard to this fact.)So return to the initial themes, first, the relationship ballots (and elections more generally) and the necessity to accept the results, come what may, perhaps because of bullets and bayonets; and second, the notion of “hardball” as part of the contemporary political debate.  If Donald J. Trump should be “re-elected” (even if one is a non-believer, it is tempting to add “God forbid”), it will be only because, as in 2020, the Electoral College mechanism has worked perversely a second time to displace the popular vote winner, undoubtedly Joseph Biden, and replace him with the “loser” who, nonetheless, by hook and crook, has managed to eke out the 270 votes that really count in our political system.  And no one should have any doubt that his re-election would be a true calamity for whatever remains of the notion of the United States as a “Republican Form of Government.” Barack Obama was absolutely correct in his speech to the Democratic National Convention.  We would be ratifying, or so it would be claimed,  a kleptocracy governed by a would-be dictator (and his family) who can easily find lawyers willing and able to justify whatever he wishes to do under capacious readings of the Vesting Clause of Article II of the Constitution and the “delegations run riot” by Congresses since the New Deal of power to presidents they actually trusted to stay within reasonable limits.  So why should “Pacifica”—or other parts of the country—feel obligated to remain within such a Union?  One might ask that question even if, by some devilish miracle, a majority of Americans in fact voted for the sociopath.  But almost no serious political observer expects that to happen.  Everyone seems to agree that Trump’s hope, such as it is, lies exclusively in the Electoral College and successful voter suppression in, say, North Carolina, Florida, and Texas.  So if that happens, why shouldn’t California, with roughly ten times the total population of the United States in 1790 and a far more robust economy than the new country had at the time, be entitled, along with Oregon, Washington, and other states wishing to join them, feel entitled to declare their own independence and embark on a new future that did not require them, as a juridical matter, to take seriously anything done by Donald J. Trump, or, at least, any more seriously, as a legal matter, than the actions taken by any other foreign leader, such as the President of Mexico or the Prime Minister of Canada?  Even if one thinks, as Buckley ultimately does, that secession would be a bad idea, is it something that should at least be on the table (or on the wall, depending on which of those two metaphors one prefers) for discussion this election season?  Perhaps it would clarify what is really at issue.  If one opposes even thinking about such a possibility, is it because of a commitment that “we,” or at least all American citizens, are trapped within an iron cage of our “Americanness,” which includes living under the shadow of a radically defective Constitution as manifested particularly in the electoral college, or simply because of pragmatic belief that “liberals” or “progressives,” recognizing that victory is within our grasp even within the electoral college system, should do nothing to frighten anyone potentially willing to vote for Joe Biden?  So let’s not talk about tax increases (necessary though they are); of packing the Court (an absolute necessity should Ruth Ginsburg have to leave the Court and Donald J. Trump and Mitch McConnell replace her with Amy Barrett or Neomi Rao; or the measures that might really have to take, such as reparations, if we are to come to grips with our 400-year history of white supremacy and concomitant racial subordination?  Let’s just applaud Biden as the equivalent of the 1920 candidate (and winner), Warren G. Harding, who promised a “return to normalcy.”  If that’s the winning strategy, let us all bend to it.  All of you, therefore, can simply denounce this particular posting (and Kreitner’s book) as unAmerican and beyond the pale of acceptable discourse.  Still, Kreitner persists.  His book is not only a fascinating overview of all of American history, well worth the accolades it gets on its back jacket.  It is also, if not literally a call to arms, at least a call to open our minds to an intellectual discourse that is, in its own way, as American as apple pie.  He offers the altogether apt comment that “[w]e need to re-create our country.”  And he was writing, of course, before Covid-19 supplied the savage MRI that revealed the extent of our various class and racial privilege systems for all to see (and experience).  “Our shredded national fabric,” he writes, “demands attention beyond mere mending.” If we do not make radical changes, then, “just as the 1787 compromises over slavery led to the country’s first crack-up,” other compromises rooted also in 1787, such as the pernicious Senate and Electoral College, “may well lead to a second.  To avoid that fate, we will have to find a way to truly and thoroughly unite—not again, but for the very first time.” Then, he concludes:  “taking the Union for granted, we neglect the work that will be needed not merely to save it, but to do so in such as way as to make and keep it forever worthy of having been saved.”  Are we up to the task?  And, if not, why should we expect all who currently share the identity as Americans to wish to remain together?x

  • AMA: Evan Bernick Asks About Constitutional Dealbreakers
    by JB on August 19, 2020 at 17:05

    Continuing this ongoing series.EB: Suppose we somehow discovered that Brown and Loving and Reynolds and Roe were all incompatible with original meaning. Would that be enough for you to abandon originalism? If not, what would be? Any dealbreakers?JB: I assume that you are asking me about my own conception of original meaning: a thin theory of original meaning that is supplemented by constitutional construction. If these cases turn out to be incompatible with a thin theory of original meaning, then the original meaning prevails. That’s the point of asserting that original meaning is binding on interpreters. If there is a deal breaker, then the Constitution is inadequate and needs to be scrapped or amended. In fact, my friend Sandy Levinson has argued that there are many parts of our Constitution that should be regarded as dealbreakers.  Our recent book, Democracy and Dysfunction, debates this question.Consider what it would require for Brown, Loving, Reynolds, and Roe to be incompatible with the thin theory of original meaning. It would mean that there isn’t a plausible construction of the Constitution’s text that produces the doctrines in these cases. For example, it would mean that there is no plausible construction of “equal protection of the laws” that would lead to the result in Brown. Or it would require that the Constitution explicitly states that no rights of this kind exist.For many years everyone assumed that there was absolutely no way that Roe v. Wade was consistent with the original meaning of the Fourteenth Amendment. But the whole point of my 2006 article, Abortion and Original Meaning, was to show that this assumption was false.If women have rights of equal citizenship, which they do under the Fourteenth Amendment’s various clauses, they also have  rights to reproductive freedom, because the first set of rights is not really complete without the second. My argument was then, and remains now, that unless women have the right to choose the number and timing of their children, they will always be at a disadvantage vis a vis men in multiple areas of political, economic, and social life. And this disadvantage means that they will not be truly treated as equal citizens.Laws that restrict women’s reproductive rights are class legislation in violation of the Fourteenth Amendment’s Due Process and Equal Protection Clauses. Far from being inconsistent with original meaning, a guarantee of reproductive freedom is the best reading of the Fourteenth Amendment.To be sure, my view is that the result in Reynolds is best understood under the Guarantee Clause and not under the Equal Protection Clause (L.O. pp. 243-44).  So I would replace the “one person one vote formula” with a requirement of structural fairness in the processes of representation. But that is not a deal breaker. That is a better account of what the Constitution actually requires.EB: In 1996 you wrote (in Agreements with Hell and Other Objects of Our Faith) that “[o]ur theories of the Constitution are makeshift attempts, reflecting the concerns of our era but dressed up as timeless claims about interpretation.” Do you still think that that’s true? If so, might originalism have an expiration date? If not, why not?JB: Yes, I still think that is true. Certainly the particular theories that we argue about today and some of the claims that we make about the Constitution today will look quite different to people in the future. Some of these theories and claims will look implausible, some beside the point, and a few even downright silly.But it’s misleading to talk about “originalism” as if it’s a single thing that could have an expiration date. There are lots of different flavors of originalism, and lots of specific claims that have been made in the name of originalism.Moreover, we should distinguish today’s versions of originalism– and the debates that currently roil the legal academy–from the very general idea that that interpreters should look to the original meaning of the text, or to the purposes of those who framed or adopted the text. Appeals to original meaning, intention, and understanding are standard forms of constitutional argument that people have employed for a very long time and will probably employ for a long time to come in American constitutional culture. People of all political and ideological stripes do this and will continue to do this, as we saw most recently in the impeachment of Donald Trump. Most theories of constitutional law– including living constitutionalist theories– recognize the persuasiveness of arguments from original purposes and meanings. They simply recognize the persuasiveness of other kinds of arguments as well. (For that matter, so do most originalist theories.)I expect that many specific versions of originalism and many specific originalist arguments will seem implausible many years later, but that is also true of many particular versions of nonoriginalism and many specific nonoriginalist arguments.I hope that the basic argument in Living Originalism still seems plausible to readers fifty years from now, but I have little control over that. We write constitutional theory in our own time, and hope that it is useful to people later on.EB: Should public officials ever deliberately violate the Constitution’s original meaning? If not, why not? If so, when/how?JB: Again, we are assuming a thin theory of original public meaning.Officials should not knowingly and deliberately violate the Constitution’s original meaning in the thin sense. In most cases, that would involve violating the Constitution’s clear command. In Sandy Levinson’s and my terminology, openly defying the Constitution would precipitate a Type One constitutional crisis. It would signal that the Constitution had failed. Disobeying the Constitution under these circumstances would only be justified if political revolution were justified. And it would be justified outside of the law, not within the law.Officials openly and deliberately violating the Constitution, however, is different from a situation in which officials have a good faith dispute about the correct interpretation of the Constitution and believe that they are actually following it. Officials often disagree about the meaning of the Constitution, and those disputes are settled in the courts or in politics.As noted above, violating the clear command of the Constitution is usually also a violation of the original public meaning (in the thin sense). But the reverse is not always true. Under the thin theory, the original meaning may be ambiguous or vague and political officials may be uncertain how to resolve ambiguities or apply vague terms. There may be good faith disagreements in these cases, and resolving them in the courts or through political give and take between the branches does not constitute a constitutional crisis.EB: Do oaths add anything to anyone’s moral obligations to follow the Constitution? Why or why not?JB: An oath is a solemn promise to behave in a certain way. It adds the moral obligation of promising to whatever existing obligations one already has. It is important for government officials to obey the Constitution, because they are clothed with state power. The Constitution limits and channels their power. Therefore it is a good idea to commit them in advance to promise to support it.

  • Four Threats: The Recurring Crises of American Democracy
    by Sandy Levinson on August 18, 2020 at 23:17

    That is the title of a new book by two distinguished political scientists, Suzanne Mettler and Robert G. Lieberman, who teach, respectively, at Cornell and Johns Hopkins.  They begin their “Acknowledgments” note by confessing that they had last taught basic courses to undergraduates on “Americcan Government and Politics” in the now long-ago days of the Clinton Administration.  On returning to teach such courses eleven years later, during the Obama Administration, they “discover[ed] that it was like teaching a different course, about a transformed nation.”  What they had absorbed in graduate school, during the 1980s, and dutifully taught to their students early in their careers, had become, if not irrelevant, then, at least, seriously misleading.  They had learned–and taught–that “American political institutions [operated] like the gears of a clock that fit together neatly and ran smoothly, promoting moderation, compromise, and incrementalism.”  No sensible person believes that today, though specific diagnoses obviously differ.Four Threats is their reflection on what may indeed be a failing American regime. There are four threats to the health of our democracy (such as it is):  1) Polarization; 2) rancorous debates about who is, and who is not, to be included with the demos, sometimes called “identity politics”; 3) economic inequality; and 4) presidential overreach, especially in the modern era.  What is literally unique in the 231 years since George Washington’s inauguration is the simultaneous presence of all four threats.  But even the presence of one or two of these threats explains why “the history of American democracy has hardly been serene; to the contrary, it has involved extreme conflict and frequent violence and bloodshed” (p. 14).  This perspective is wholly different from the comforting emphasis on “consensus” and concord that remained dominant even when they arrived at graduate school in the 1980s.  They offer a truly splendid, even brilliant, overview of five of what their subtitle calls “recurring crises” in our history.  The first is the suppression, with George Washington literally on horseback, over the protest of the Pennsylvania governor, of the Whiskey Rebellion in western Pennsylvania in 1794-95, which certainly exemplified polarization.  Even more striking , perhaps, is their vivid description of the feckless Herbert Hoover’s agreeing in 1932 to deploy the militaristic Douglas MacArthur (and Dwight Eisenhower) to suppress the presence in Washington of angry (and suffering) veterans desperate to receive promised future “bonuses.”  In reading about both of these episodes, it was hard for me not to think of Portland and the trying-out by the most authoritarian president in our history of similarly militarized responses to popular protest.  (And we can count on Trump not to emulate Washington by pardoning those convicted for their undoubtedly illegal conduct during the Whiskey Rebellion.)The American Civil War is, of course, the maximal example of polarization, over the issues of secession and slavery, at the cost of 750,000 lives.  But an absolutely revelatory chapter, “Democratic Backsliding in the 1890s,” describes what can only be described as a 1898 coup in Wilmington, North Carolina by well-connected white supremacists, itself a preparation for the statewide disenfranchisement of African-Americans from the political process.  African-Americans had continued to vote and hold political office well into the 1880s and ‘90s; only then did white elites, threatened by a bi-racial Populist movement, decide that Blacks must be driven out of the American political community, by any means necessary.  And they were, by and large, successful.The two final chapters concern the 20th century rise of the truly powerful presidency, what Clinton Rossiter, in a powerful 1948 book that I continue to view as necessary reading, labeled a “constitutional dictatorship.”  First there was FDR confronting the economic crises and inequalities of the New Deal and then the challenges of World War II, which included the placing of 120,000 Japanese-Americans by presidential fiat in what Justice Owen Roberts called “concentration camps.”  Then comes Richard Nixon’s desperate attempts to coverup the Watergate burglary, which, of course, was only part of the frightening misconduct that typified his reign.  Again, one can bring the story up-to-date, as it were, with examples from a number of post-Nixon presidencies (including Democratic ones).  Mettler and Lieberman argue that we managed to survive those threats because of the overall strength of the American political system and the fact that they manifested “only” one or possibly a couple of the four possible threats.  Still, there was what they call “backsliding.”  Now, however, we are facing the perfect storm, as it were, with Donald Trump.  As with the earlier book by Steven Levitsky and Daniel Ziblatt How Democracies Die, which itself suggested that Trump and Trumpism uniquely instantiated all of the viruses that are potentially fatal to democracy, Mettler and Lieberman offer a truly dire diagnosis of our situation.               Those quoted on the back jacket endorsing the book encompass what used to be regarded as the full array of the political spectrum, from E. J. Dionne to Bill Kristol.  I used to regard Kristol as one of the most evil persons in American politics inasmuch as he was an architect, in the 1990s, of the Republican policy of non-cooperation with the Clintons in their desire to reform the American medical system.  His advice reflected not merely disagreements he might have had with some aspects of it–who didn’t?–but, rather, the altogether defensible perception, given the way our political system operates, that only the Clintons and the Democratic Party would get credit for needed reforms, confining the GOP to permanent defeat.  Thus the need for full-scale political warfare, captured most memorably, of course, in Mitch McConnell’s theory of non-governance during the Obama Administration.  My own view, argued many times, is that Kristol–and then McConnell–were altogether rational in their belief and in their perception that the constitutional order foisted on us in 1787 allowed well-located political minorities in fact to defeat proposals supported by the majority.  That was then, and now is now.  Just as I welcomed John Kasich as a speaker at the Democratic Convention, I now have genuine respect for Kristol as a principled “never-Trumper” who has, like others of that breed, undoubtedly lost friends and access because of his stance.  What this means, not surprisingly, is that none of the five blurbers can be described as remotely sympathetic with Trump.  This is not meant as a criticism, but only as an illustration of the actuality of our polarized politics. Mettler and Lieberman are not only analyzing that phenomenon; they also, in their own way, exemplify it.Although both Dionne and Kristol suggest that the book offers ground for “hope” and overcoming the sense of despair that the splendid first 75% of the book might well generate in the reader, I wonder.  The real strength of the book is the way it so clearly lays out the “recurring crises” and the extent to which the underlying causes of these crises have scarcely been truly resolved.  The authors twice quote Abraham Lincoln’s Second Inaugural and its plea for a politics of “malice toward none and charity toward all.”  The first comes when they argue that “Lincoln turned away from vindictiveness and the opportunity to assume military power over the vanquished South” following Appomattox.  There are two problems:  The first, obviously, is that we have no real idea what Lincoln might actually have done had Booth not intervened.  The second, and more fundamental, is that many historians today would argue that only the continued use of military power to enforce what the defeated white ruling class would undoubtedly have viewed as “vindictive” policies might have created the “regime change” that was truly required.  The coup in Wilmington followed directly from the de facto mildness of Reconstruction, not from its harshness.  One might wish to follow Martin Luther King’s injunction to love even those who are placing their knee literally on one’s body and suffocating them, but, obviously, for King and for John Lewis, that did not counsel any reluctance to engage in “good trouble,” including law-breaking and disruption that could, at least in the short run, only increase polarization.  Unfortunately, the Lincoln quotes illustrate the unfortunate turn toward banality of the last quarter of this otherwise excellent book, when the authors offer tentative cures for the systemic difficulties they have so well diagnosed.  Given my own hobbyhorse, I believe they refuse fully to confront the possibility that the Constitution itself at least as often constitutes a “threat” to our political health instead of a cure.  They do acknowledge that some people believe that “deep structural reforms” of a defective Constitution are necessary in order “to keep democracy functioning.”  They take specific note of the indefensible Senate, a “modern-day version of the three-fifths rule” that continues to enhance the power of white supremacists and of the electoral college that gave us Donald Trump.  Insofar as Trump is building on the excesses of his predecessors, we might even think of adopting a more parliamentary system.But then, like the great Robert Dahl in his diagnoses of the weaknesses of the American constitutional order, they accurately state that “such changes are unlikely to happen.” The reason, of course, is that the Constitution is inordinately difficult to amend in the best of times, let alone “in today’s polarized climate.” We are truly enclosed in an iron cage, condemned to think of fanciful “work-arounds” regarding a  Constitution that is itself making it harder and harder for us to breathe.  And Joe Biden’s election will change this hardly at all, unless the Democrats establish an unlikely overwhelming control of the Senate and make it known that they will not tolerate obstructionism from the conservative Republican majority on the Supreme Court.  So I, at least, see no reason to feel particularly hopeful about our national future.  But this dissatisfaction does not in the least mean that one should not read and reflect on their chilling diagnosis about the significance of the simultaneous “four threats.”  One can only wonder what their students make of this new version of their introductory course in terms of thinking about their own futures as American citizens.

  • One Aim for the Next 100 Years of the 19th Amendment: More Women in All Levels of Public Office
    by Linda McClain on August 18, 2020 at 19:44

    August 26th 2020, Women’s Equality Day, will mark the 100th anniversary of the certification of the 19th Amendment to the U.S. Constitution. On August 18, 1920, Congress ratified the Amendment. Today, Virginia Sapiro (BU, Department of Political Science) and I published this column in BU Today’s Point of View, arguing that, on the 100thanniversary of the 19th Amendment, a critical priority before we mark the next significant anniversary should be increasing political representation by women—particularly women of color—at all levels of office.  Here are a few points we make in our longer essay. First, there is a difference between saying that the right to vote could “not be denied or abridged on account of sex” and saying that women had the right to vote. The 19th Amendment did not eliminate other barriers women faced, like Jim Crow laws, literacy requirements, grandfather clauses, felon restrictions, and a variety of other types of voter suppression. Even so, the 19th Amendment marked the first time a constitutional principle of gender equality became a part of the US Constitution, limited though that principle was.  It provided a constitutional basis for gaining a right that thousands of women (and some men) had dreamed of, worked for,  and gave their health and lives for over the course of 80 years.  Second, the women (and men) who participated in the woman suffrage movement included people from every region of the country; people of all races, classes, and religions; wealthy women and poor women; recent immigrants and people whose families had settled more than a century earlier. Some suffrage movement allies thought the vote was the most important thing. Some saw it as an instrument to help achieve other desired ends relating to securing women’s full and equal citizenship.  Third, the history of the woman suffrage movement and its internal workings also reflect the  larger forces of the society in which it was embedded: racism, ethnocentrism, class conflict, sectionalism, political party antagonisms, and political opportunism. Understanding this knotty and often contradictory history does not detract from the achievements. It means, rather, that the history of the conflicts, struggles, progress, and loss that led to the 19th Amendment is a great lens through which to study the realities of American aspirations for democracy.  Fourth, this amazing story – and women’s history generally, especially in its nuanced and complicated version accounting for a truly intersectional understanding of women’s experiences – is remarkably little known. It is not yet integrated into basic university-level curricula on American history. Students in our gender and politics classes are shocked when they find out what they have been missing in their earlier education.  Fifth, and finally, our American democracy, however, does not yet reflect gender equality in the arena of holding positions of power and elected office. On the one hand, the 2018 elections brought in an encouragingly diverse group of women at all levels of public office, including Congress. On the other hand, women are still underrepresented, relative to their percentage of the population, as mayors, state legislators, and governors.  In Congress, they hold 23 percent of seats in the House of Representatives and 26 percent of Senate seats. For women of color, these percentages are even lower in most categories.   And, of course, no woman has ever been President or Vice President of the United States.The United States does not compare well to other countries in this regard: 59 countries have had a woman head of government. In the world rankings of women as a percentage of the lower house of the national legislature (like our House of Representatives), the United States ranks 76th.  That low score is better than before the 2018 elections, when we ranked 100th.     As the Democratic presidential primaries began with a record number of women as candidates, there was hope that the highest glass ceiling would be broken. That did not happen. Moreover, throughout the process, repeated questions about whether female candidates are “electable” or “too ambitious” have demonstrated the continuing hold of gender stereotypes about political leadership. Such stereotypes evidently played a role in the vetting process of the many women under consideration to be Democratic candidate Joe Biden’s vice president. Biden’s selection of  Senator Kamala Harris as his vice presidential choice is historic: while she is thethird woman to be selected as a running mate, she is the first Black woman and the first Asian American. Perhaps the glass ceiling as to the vice presidency will be broken this November; if so, it could signal actual movement on social norms about who is “electable.”  Such movement would be a tangible step toward the type of progress needed to realize the full promise of the 19thAmendment. The unfinished business of gender equality in political representation is one of the many issues that Gina and I — along with legal scholars, political scientists, and political practitioners—will be exploring next month, on September 25, in a Zoom webinar sponsored by Boston University, The Centenary of the 19th Amendment: New Reflections on the History and Future of Gender, Representation, and Citizenship Rights (advance registration is required). We look forward to continuing conversation about this significant anniversary.

  • Scholars’ Letter on Senator Kamala Harris’s Eligibility
    by Guest Blogger on August 17, 2020 at 17:00

    Neil SiegelSenator Kamala Harris’s eligibility to be a vice-presidential candidate has been questioned on the basis of an erroneous contention that she might not be a  “natural born Citizen” as required by Article II of the Constitution. When President Trump voiced this idea in a typically uninformed manner, he pointed to a Newsweek article written by John Eastman. Eastman’s conclusion has been roundly and correctly rejected in recent op eds that have pointed out some of its errors – and but for the President’s invocation that might well have been the end of it. It is important  for the public record to reflect just how baseless this idea is, and how it runs completely counter to the meaning of both Article II and Section 1 of the Fourteenth Amendment. The following legal analysis, signed below by forty legal scholars, explains why.* * * * *John Eastman’s recent Newsweek op-ed questions both the citizenship of Senator Kamala Harris and her patriotism. He offers a reading of the Constitution’s restriction of eligibility for the vice-presidency to “natural born Citizen[s]” that ignores centuries of common law known to the Framers, fails to address early American understandings of who counts as a natural-born citizen, and twists the words of the Citizenship Clause of the Fourteenth Amendment so that it no longer accomplishes what its proponents and ratifiers sought. And he ends by charging that Senator Harris and Vice President Biden have “ignore[d] the Constitution’s eligibility requirements” and that we therefore should doubt their ability, if elected, “to honor their oaths” of office to “preserve, protect and defend the Constitution of the United States.”Eastman’s assertions are wrong—dangerously wrong—along nearly every dimension.To start, Eastman gives only lip service to the constitutional provision that actually contains the requirement that the President be a “natural born Citizen”—the fifth clause of Article II, Section 1 (which applies to the Vice Presidency as well as the Presidency because the Twelfth Amendment states that “no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President”). Instead, Eastman lurches directly to claiming that the Fourteenth Amendment determines the scope of the requirement. But obviously, the conception of “natural born Citizen” contained in the Constitution as it was ratified in 1788 had a meaning before 1868, when the Fourteenth Amendment was ratified. And that meaning encompassed children born to alien parents who were only temporarily present in a sovereign’s territory.As the Supreme Court long ago unanimously observed, “[t]he Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.” Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1874). A primary source to which the Supreme Court has consistently resorted is English common law.And that common law, from centuries before the creation of the United States up through the nineteenth century, always treated children born within the sovereign’s territory as “natural-born subjects”—“subjects” within a monarchy being equivalent to “citizens” in a republic. The great English jurist William Blackstone, who significantly shaped the legal understandings of the Framers of the U.S. Constitution, explained in his Commentaries published shortly before American independence that “Natural-born subjects are such as are born within the dominions of the crown of England,” because by being born in English territory, they owed allegiance to the king. 1 Blackstone *365-66. In particular, he emphasized that “[t]he children of aliens, born here in England, are, generally speaking, natural-born subjects, and entitled to all the privileges of such.”  1 Blackstone *373. The only exception Blackstone identified was children born to enemies of the realm. And the great U.S. Supreme Court Justice Joseph Story made exactly the same point a few decades later: “Nothing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.” Inglis v. Trustees of Sailor’s Snug Harbor, 28 U.S. 99, 164 (1830). In short, the rule “in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterward,” which “continued to prevail under the Constitution as originally established,” was that aliens, while residing within a sovereign’s territory, “were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction” of that sovereign and therefore “every child born in England”—and later in the United States—“of alien parents was a natural-born subject”—or, in the case of the United States, a citizen.  This was the law unless the individual in question was “the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.” United States v. Wong Kim Ark, 169 U.S. 649, 658 (1898).To be sure, over the course of American history there have been questions raised about who else, other than individuals born within the United States, might qualify as a “natural born Citizen.” But the fact that there has been debate over when natural-born citizenship extends to children born abroad cannot obscure the fact that a child born to alien parents residing in the United States is a natural-born citizen of the United States unless her parents are diplomats or invaders.There was a shameful exception to that general principle as it existed prior to the ratification of the Fourteenth Amendment.  In Dred Scott v. Sandford, 60 U.S. 393 (1857), the Supreme Court held that persons of African descent could never become citizens of the United States. So it was irrelevant that Dred Scott, who was suing for his freedom, was born in Virginia. According to the Supreme Court, he was nothing but a piece of property, and even free Black people were never “regarded as a part of the people or citizens of the State.” Id. at 413.  Thus, had Senator Harris been born a hundred years earlier, there would have been a viable legal argument that she was ineligible to become Vice President—not because her father was a non-citizen, but because he was Black.But the Fourteenth Amendment was enacted precisely to repudiate the idea that Black people born in the United States were not natural-born citizens. Section One of the Amendment provides that “[a]ll persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”  Nothing in this Citizenship Clause supports the idea that fewer people could qualify as “natural born Citizens” eligible to become President or Vice President after its enactment. That assertion would turn the amendment on its head. By declaring birthright citizenship, the Citizenship Clause squarely overrules the infamous holding of Dred Scott that Black people could never qualify as U.S. citizens.  As explained above, the Presidential Qualifications Clause of Article II, standing on its own interpretive bottom, controls whether Senator Harris is eligible to be Vice President or President, and the correct legal understanding of this clause establishes that she is.  Perhaps sensing the weakness of his argument under the clause that actually governs the question of Senator Harris’s eligibility, Eastman focuses almost all of his attention on the Citizenship Clause of the Fourteenth Amendment—specifically, its language providing that only persons “subject to the jurisdiction” of the United States can be citizens of the United States.  But he gets this clause wrong as well.  The clause reaffirms the age-old legal principle that individuals born in the United States are natural-born citizens, regardless of the citizenship of their parents.The Fourteenth Amendment includes the limiting language “subject to the jurisdiction thereof” to exclude from its conferral of birthright citizenship the American-born children of foreign diplomats present in the United States.  This is because, under international law at the time that the Amendment was written and ratified, diplomats and their families were mostly immune from the legal supervision of the nation hosting them.  (In other words, the Amendment simply carried forward the common-law rule.)  The limiting language was also placed in the Citizenship Clause in order to deny birthright citizenship to the American-born children of Indian tribes, whose relations with the United States at the time constrained the nation’s legal authority over members of the tribes.  The Citizenship Clause was modeled on the Civil Rights Act of 1866, which also rejected Dred Scott’s racist and exclusionary conception of U.S. citizenship by declaring that “[a]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”  It was not thought at the time that there was daylight between the limiting language in the Civil Rights Act and the limiting language in the Fourteenth Amendment.  Nor have courts or the overwhelming majority of constitutional law experts seen a difference at any point since, which is why judges have firmly rejected the argument that the children of undocumented immigrants are not U.S. citizens even though they were born here.The argument that the Citizenship Clause incorporated some requirement of parental citizenship was fully aired between ratification of the Fourteenth Amendment and the Supreme Court’s 1898 decision in Wong Kim Ark, where the Court rejected the argument.  The Court there noted only a few “exceptions or qualifications (as old as the rule itself)” to the Fourteenth Amendment’s declaration of birthright citizenship.  These exceptions were “children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”  Wong Kim Ark, 169 U.S. at 693.  Children born on foreign public ships, including ships of war, are not birthright citizens for the same reasons that the children of foreign diplomats are not.  The same goes for children born to foreign invaders of the United States.  What do these limited and longstanding exceptions have to do with the citizenship status of Senator Kamala Harris?  Nothing.  She was born in Oakland, California.  She was not the child of a foreign diplomat.  She was not born on a foreign public ship, nor were her parents part of a military invasion of the United States at the time she was born—or, for that matter, at any time before or after.  And for nearly a century, federal law has recognized that members of Indian tribes born within the United States are birthright citizens.  Senator Harris is a birthright citizen who meets the requirement of the Qualifications Clause and who enjoys the very protection of the Fourteenth Amendment that, to the nation’s shame, Black people were long denied before the Civil War and Reconstruction.The implications of Eastman’s argument go far beyond Senator Harris’s eligibility to become Vice President. Eastman recognizes that his reading of the Fourteenth Amendment “might also call into question Harris’ eligibility for her current position as a United States senator.”  This is because there’s no record of her being naturalized, and Article I, Section 3, of the Constitution requires Senators to be citizens. And though he does not say this as well, there is no record of Senator Harris becoming a lawful permanent resident. Perhaps in his next piece, Eastman will follow his argument to its logical conclusion and suggest that ICE detain her and remove her from the country as an undocumented alien. And even that would not be the end of Eastman’s reading of the Constitution: millions of others would also face roundups and deportation. And that would include not only the U.S.-born children of non-citizen parents, but their U.S.-born grandchildren and great-grandchildren as well, for if the first generation of U.S. born ancestors did not acquire citizenship under the Citizenship Clause of the Fourteenth Amendment, then no subsequent generation can do so either. The Fourteenth Amendment was written to ensure that the United States would not have a cohort of individuals whose descendants would remain forever alien.    Signatures [Institutions named for identification purposes only]Matthew AdlerRichard A. Horvitz Professor of Law and Professor of Economics,Philosophy and Public PolicyDuke Law SchoolJack M. BalkinKnight Professor of Constitutional Law and the First AmendmentYale Law SchoolNikolas BowieAssistant Professor of LawHarvard Law SchoolErwin ChemerinskyDean and Jesse H. Choper Distinguished Professor of LawUniversity of California, Berkeley, School of LawWalter DellingerDouglas B. Maggs Professor Emeritus of LawDuke University School of LawMichael DorfRobert S. Stevens Professor of LawCornell Law SchoolGarrett EppsProfessor of Law EmeritusUniversity of BaltimoreJoseph R. FishkinThe Marrs McLean Professor in LawUniversity of Texas School of LawCharles FriedBeneficial Professor of LawHarvard Law SchoolRuben J. GarciaProfessor of LawWilliam S. Boyd School of LawUniversity of Nevada, Las VegasMark A. GraberRegents ProfessorUniversity of Maryland Carey School of LawJamal GreeneDwight Professor of LawColumbia Law SchoolAziz HuqFrank and Bernice J. Greenberg Professor of Law.  University of Chicago Law SchoolDawn JohnsenWalter W. Foskett Professor of LawMaurer School of Law, Indiana University BloomingtonPamela S. KarlanKenneth and Harle Montgomery Professor of Public Interest LawStanford Law SchoolNeil J. KinkopfProfessor of LawGeorgia State University College of LawMichael KlarmanKirkland & Ellis Professor of LawHarvard Law SchoolGenevieve LakierAssistant Professor of Law and Herbert & Marjorie Fried Teaching ScholarThe University of ChicagoDouglas LaycockRobert E. Scott Distinguished Professor of LawUniversity of Virginia Law SchoolMartin S. LedermanProfessor from PracticeGeorgetown University Law CenterSanford V. LevinsonW. St. John Garwood and W. St. John Garwood, Jr. Centennial ChairProfessor of GovernmentUniversity of TexasLeah LitmanAssistant Professor of LawUniversity of Michigan Law SchoolWilliam P. MarshallWilliam Rand Kenan, Jr. Distinguished Professor of LawUniversity of North Carolina School of LawBernadette MeylerCarl and Sheila Spaeth Professor of LawStanford Law SchoolMelissa MurrayFrederick I. and Grace StokesProfessor of LawNew York UniversitySchool of LawRobert PostSterling Professor of LawYale Law SchoolRichard PrimusTheodore J. St. Antoine Collegiate Professor of LawUniversity of Michigan Law SchoolCristina RodriguezLeighton Homer Surbeck Professor of LawYale Law SchoolJane S. SchacterWilliam Nelson Cromwell Professor of LawStanford Law SchoolChristopher H. SchroederCharles S. Murphy Professor Emeritus of Law and Professor Emeritus of Public  PolicyDuke Law SchoolMicah SchwartzmanHardy Cross Dillard Professor of LawUniversity of Virginia School of LawPeter M. ShaneJacob E. Davis and Jacob E. Davis II Chair in LawThe Ohio State UniversityMoritz College of LawNeil S. SiegelDavid W. Ichel Professor of Law and Professor of Political ScienceDuke Law SchoolReva SiegelNicholas deB. Katzenbach Professor of LawYale Law SchoolGeoffrey R. StoneEdward H. Levi Distinguished Professor of LawThe University of ChicagoDavid A. StraussGerald Ratner Distinguished Service Professor of LawUniversity of Chicago School of LawFranita TolsonProfessor of LawUSC Gould School of LawUniversity of Southern CaliforniaLaurence H. TribeCarl M. Loeb University Professor andProfessor of Constitutional Law EmeritusHarvard Law SchoolStephen I. VladeckDalton Cross Professor in LawUniversity of Texas School of LawAdam WinklerProfessor of LawUCLA School of LawKeith E. WhittingtonWilliam Nelson Cromwell Professor of PoliticsPrinceton University

  • Free speech gone wild
    by Andrew Koppelman on August 17, 2020 at 16:35

    The Sixth Circuit Court of Appeals is being invited to invalidate the entire field of hostile environment harassment law. One cannot confidently predict that the invitation will be declined. If the plaintiff in Meriwether v. The Trustees of Shawnee State University prevails, teachers at public colleges will have a constitutional right to subject their students to bigoted slurs. Much of anti-discrimination law would be deemed unconstitutional. I explain in a new column at The Hill, here.

  • Symposium on Mark Tushnet, Taking Back the Constitution – Collected Posts
    by JB on August 16, 2020 at 13:30

    Here are the collected posts for our Balkinization symposium on Mark Tushnet’s new book, Taking Back the Constitution: Activist Judges and the Next Age of American Law (Yale University Press 2020).1. Jack Balkin, Introduction to the Symposium.2. Leah Litman, Courts, The Academy, and Politics.3. Jack Balkin, Taking back the Constitution in an era of high polarization.4. Aaron Belkin, Conservative Judges Doing Law All the Way down are Politicians in Robes.5. D. A. Jeremy Telman, There Are No Balls and Strikes in Constitutional Hardball.6. Sandy Levinson, Mark Tushnet and the “Next Age” Struggling to be Born.7. Julia Azari, Constitutional meaning at a time of democratic crisis.8. Stephen Griffin, Tushnet’s Taking Back the Constitution.9. Amanda Hollis-Brusky, Reports of the Reagan Era’s Death Are Greatly Exaggerated.10. Mark Tushnet, Realistic Utopianism.

  • Federal Judge Enjoins Federal Agents Acting Against Journalists and Legal Observers in Portland, Oregon
    by Ruthann Robson on July 24, 2020 at 15:21

    Professor Ruthann Robson, City University of New York (CUNY) School of Law In a Temporary Restraining Order and Opinion in Index Newspapers v. City of Portland, Judge Michael Simon enjoined the U.S. Department of Homeland Security ("DHS"); and the U.S….

  • Court Says Congress Can Subpoena Trump Financial Records, but Must Account for Separation of Powers Concerns
    by Steven D. Schwinn on July 9, 2020 at 19:56

    Steven D. Schwinn, UIC Law School The Supreme Court ruled today that while Congress has authority to issue subpoenas for the President’s personal financial records, courts that judge those subpoenas must take more careful account of the separation-of-powers considerations at…

  • Court Say State Grand Jury Can Subpoena President’s Taxes, Financial Records
    by Steven D. Schwinn on July 9, 2020 at 18:41

    Steven D. Schwinn, UIC Law School The Supreme Court ruled today that a state grand jury is not categorically prohibited from issuing a subpoena for the President’s taxes and financial records. But the ruling leaves open the possibility that the…

  • Court Upholds Administration’s Religious, Moral Exemptions to ACA’s Contraception Guarantee
    by Steven D. Schwinn on July 9, 2020 at 06:14

    UIC John Marshall Law School The Supreme Court today upheld the Trump Administration’s rules substantially broadening the religious exemption and expanding it to those with a "moral" objection to the Affordable Care Act’s contraception guarantee. Our argument preview of the…

  • SCOTUS Broadens Ministerial Exemption from Anti-Discrimination Laws
    by Ruthann Robson on July 8, 2020 at 14:55

    Professor Ruthann Robson, City University of New York (CUNY) School of Law In its opinion in Our Lady of Guadalupe School v. Morrissey-Berru, consolidated with St. James School v. Biel, the Court extended the application of the First Amendment’s "ministerial…

  • Supreme Court Says States Can Punish Faithless Electors
    by Steven D. Schwinn on July 6, 2020 at 17:14

    Steven D. Schwinn, UIC John Marshall Law School A unanimous Supreme Court today upheld a state law that punishes "faithless electors." The ruling means that states can continue to impose fines on individuals appointed to vote in the Electoral College…

  • SCOTUS Finds Exception in Robocalls Prohibition Statute Violates First Amendment
    by Ruthann Robson on July 6, 2020 at 14:34

    Professor Ruthann Robson, City University of New York (CUNY) School of Law In its opinion in Barr v. American Association of Political Consultants the United States Supreme Court held a provision of the Telephone Consumer Protection Act of 1991 (the…

  • SCOTUS Holds Free Exercise Clause Bars Application of State’s No-Aid to Religious Institutions Clause in State Constitution
    by Ruthann Robson on June 30, 2020 at 15:25

    Professor Ruthann Robson, City University of New York (CUNY) School of Law In its opinion in Espinoza v. Montana Department of Revenue regarding a state tax credit scheme for student scholarships, the majority held that the scheme must be afforded…

  • Court Strikes CFPB Director’s Independence
    by Steven D. Schwinn on June 29, 2020 at 17:56

    Steven D. Schwinn, UIC John Marshall Law School The Supreme Court today struck the statutory independence of the Director of the Consumer Financial Protection Bureau, even as it declined to rule the entire CFPB unconstitutional. This means that the CFPB…

  • Daily Read: More Kavanaugh Controversy
    by Ruthann Robson on June 29, 2020 at 15:48

    An article in the New York Times exploring the inner workings of the Washington Post has more than insider media news: it begins by divulging the role of the Washington Post editors in not publishing news about Supreme Court nominee…

  • Can the Trump Administration End DACA?
    by programs@constitutioncenter.org on November 14, 2019 at 21:54

    Two years ago, the Trump administration decided to end Deferred Action for Childhood Arrivals (DACA) — a policy enacted under President Obama that deferred the deportation of undocumented people brought to the United States as children. Earlier this week, the Supreme Court heard challenges to that decision and was faced with the questions: can the Court even review the decision to end DACA, since it was an action taken by the Department of Homeland Security, an executive branch agency? If it can, was the decision to rescind DACA legal? And is DACA itself legal and constitutional? Brianne Gorod of the Constitutional Accountability Center and Josh Blackman of the South Texas College of Law Houston join host Jeffrey Rosen to dive into the questions. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Conversations with RBG
    by programs@constitutioncenter.org on November 7, 2019 at 22:01

    This week, we’re celebrating the launch of host Jeffrey Rosen’s newest book, Conversations with RBG: Ruth Bader Ginsburg on Life, Love, Liberty, and Law—an informal portrait of the justice through an extraordinary series of conversations, starting in the 1990s and continuing to today. Jeff has collected Justice Ginsburg’s wisdom from their many conversations on the future of the Supreme Court and Roe v. Wade, which Supreme Court decisions she would like to see overturned, the #MeToo movement, and how to lead a productive, compassionate life – illuminating the determination, self-mastery, and wit of the “Notorious RBG.” Dahlia Lithwick, veteran Supreme Court reporter and host of the Slate podcast Amicus, moderates. Check out Conversations with RBG on Amazon and listen to the audiobook on Audible. The audiobook also has its very own Alexa skill – Ask RBG. You can ask your Amazon echo things like, “Alexa, ask RBG about the #MeToo movement” and you’ll hear clips from the real-life interviews with Justice Ginsburg featured in the audiobook. This episode is a crossover with our companion podcast, Live at America’s Town Hall – live constitutional conversations held here at the National Constitution Center in Philadelphia and across America – which is available wherever you get your podcasts. 

  • Is Brexit a British Constitutional Crisis?
    by programs@constitutioncenter.org on October 31, 2019 at 21:44

    Brexit, the UK’s campaign to leave the European Union, has sparked ongoing political and constitutional controversy. However, the UK doesn’t have a written constitution — it is governed by a set of laws, norms, conventions, judicial decisions, and treaties — and Brexit has led some to think that needs to change. This episode dives into that debate over the UK’s unwritten constitution as well as other key Brexit-related issues including Prime Minister Boris Johnson’s attempts to “prorogue” Parliament and the ensuing UK Supreme Court decision, parliamentary sovereignty, and the role of referenda. Two leading experts on those topics –Meg Russell, Director of the Constitution Unit at University College London, and Kim Lane Scheppele, Professor of International Affairs at Princeton University phone in from London for a conversation with host Jeffrey Rosen.  A term that is helpful to know for this week: Prorogation – brings the current session of Parliament to an end. While Parliament is prorogued, neither House can meet, debate or pass legislation, or debate government policy. In general, bills which have not yet been passed are lost and will have to start again from scratch in the next session. The Crown decides when Parliament can be prorogued, but, typically, the Prime Minister advises the Crown to prorogue and that request is accepted. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • What Does the Constitution Say About Impeachment?
    by programs@constitutioncenter.org on October 24, 2019 at 21:29

    How should impeachment be carried out, according to the Constitution? This episode explores the constitutional process of impeachment, from investigation and passage of articles of impeachment by the House of Representatives, to the Senate trial, and the aftermath. Rep. Elizabeth Holtzman, who served on the House Judiciary Committee during the Nixon impeachment, and Gene Healy, author of Indispensable Remedy: The Broad Scope of the Constitution’s Impeachment Power detail the constitutional framework under which impeachment has been carried out in the past, how those precedents compare to what’s happening today, and what might happen next. Jeffrey Rosen hosts. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Can Employees Be Fired for Being LGTBQ?
    by programs@constitutioncenter.org on October 17, 2019 at 21:01

    Title VII of the Civil Rights Act of 1964 prohibits employment discrimination “because of… sex.” Last week, a trio of cases that raise the question of whether Title VII also prohibits discrimination because of sexual orientation and/or gender identity were argued before the Supreme Court. Two of these cases – Bostock v. Clayton County Georgia and Zarda v. Altitude Express, Inc. – are lawsuits brought by employees who claim they were fired for being gay, and are suing their employers. The third case – R.G. and G.R. Harris Funeral Homes Inc. v. EEOC – centers around Aimee Stephens, a transgender woman who says she was fired from her job at a funeral home because of her gender identity. On this episode, Karen Loewy, Senior Counsel for LGBTQ legal advocacy organization Lambda Legal, and Professor David Upham of the University of Dallas – who both wrote briefs in these cases – explain the arguments on both sides, analyze the Justices’ reactions at oral argument, and predict the potential social and legal consequences of these cases. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Two Federal Judges on How They Interpret the Constitution
    by programs@constitutioncenter.org on October 10, 2019 at 21:29

    Last week, the National Constitution Center travelled to Washington, DC to host Clerks at 100 – a celebration of the 100th anniversary of the federal statute instituting Supreme Court clerkships that brought together hundreds of former clerks. Supreme Court clerks assist the justices with researching and drafting opinions and other work critical to the function of the Court. The day before the reunion, the NCC hosted a symposium in partnership with the George Washington Law Review at GW Law School featuring former clerks to discuss that special experience. This episode features NCC President Jeffrey Rosen’s conversation with Judges Diane Wood and Jeff Sutton, who shared how their clerkship experience affected them personally and professionally and shaped their methods of interpreting the Constitution. Judge Wood clerked for Justice Harry Blackmun and serves as Chief Judge on the U.S. Court of Appeals for the 7th Circuit and Judge Sutton, who sits on the 6th Circuit, clerked for retired Justice Lewis Powell and Justice Antonin Scalia.   Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • We the People Live: Supreme Court 2019 Term Preview
    by programs@constitutioncenter.org on October 3, 2019 at 20:48

    This week, We the People partnered with SCOTUSblog’s podcast SCOTUStalk for a live preview of the Supreme Court’s 2019 term – recording our show in front of a live National Constitution Center audience for the first time! Host Jeffrey Rosen was joined by SCOTUSblog’s Amy Howe and John Elwood to preview the blockbuster cases of the upcoming term, on topics including LGBTQ rights under Title VII, immigration policies like DACA, the Second Amendment, school choice and the free exercise of religion, and more. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • The Battle for the Constitution: Live at The Atlantic Festival
    by programs@constitutioncenter.org on September 26, 2019 at 21:22

    This week, the National Constitution Center in partnership with The Atlantic launched a new web project: “The Battle for the Constitution”— a year-long exploration of the major issues and controversies surrounding the Constitution today from all sides of the debate. At the Atlantic Ideas Festival yesterday, the NCC and the Atlantic celebrated the project launch with a series of panels featuring scholars, journalists and legislators. They discussed the breaking news of the House’s impeachment inquiry into President Trump, as well as what separation of powers means in U.S. government today. Jeffrey Rosen, President and CEO of the NCC, kicked off the discussion in conversation with Martha Jones, professor of history at John Hopkins University, John Malcolm, Vice President for Constitution Government at the Heritage Foundation, and Quinta Jurecic, managing editor at Lawfare. Later, Representatives Lance Gooden (R-TX) and Adam Schiff (D-CA) spoke about their views on the impeachment question and the proper exercise of congressional power. 

  • Justice Neil Gorsuch, Live at America’s Town Hall
    by programs@constitutioncenter.org on September 19, 2019 at 21:43

    Justice Neil Gorsuch visited the National Constitution Center to celebrate Constitution Day and discuss his new book A Republic, If You Can Keep It. Justice Gorsuch, the Honorary Chair of the National Constitution Center’s Board of Trustees, sat down with President Jeffrey Rosen to discuss his passion for civics and civility, the importance of separation of powers, what originalism means to him, and why he is optimistic about the future of America. This episode is a crossover with our companion podcast Live at America’s Town Hall — live  constitutional conversations held here at the National Constitution Center in Philadelphia and around the country — which is available wherever you get your podcasts. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Madison vs. Mason
    by programs@constitutioncenter.org on September 12, 2019 at 22:16

    James Madison and George Mason, both Virginian Founding Fathers, diverged on some of the biggest debates of the Constitutional Convention—including the proper distribution of power between national and local government, the future of the slave trade, and whether or not the Constitution should have a Bill of Rights. Exploring these debates and their impact on the Constitution – scholars Colleen Sheehan and Jeff Broadwater join host Jeffrey Rosen. They dive into the core of the constitutional visions and ideas of Madison and Mason.  Next Tuesday, September 17th, is Constitution Day – the anniversary of the signing of our constitution back in 1787. To learn more about the National Constitution Center’s Constitution Day programming, including the launch of our upgraded Interactive Constitution, visit constitutioncenter.org/learn.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • When Should Judges Issue Nationwide Injunctions?
    by programs@constitutioncenter.org on September 5, 2019 at 21:19

    What are “nationwide injunctions”? When and why are they issued by federal courts? Have they been invoked more frequently in recent years, and, if so, how is that affecting how laws or executive orders are implemented nationwide? And is the term “nationwide injunctions” itself actually a misnomer? Two experts on these broad kinds of injunctions, Amanda Frost of American University’s Washington College of Law and Howard Wasserman of Florida International University, answer those questions. They also detail how nationwide injunctions have been used to block policies of both President Obama and President Trump – including immigration policies like DAPA and DACA under President Obama, and the so-called “travel ban” and third country asylum rule under President Trump – as well as civil rights policies like President Obama’s protections for transgender students using bathrooms that match their identities and President Trump’s ban on people with gender dysphoria serving in the military. Jeffrey Rosen hosts. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • The Next Big Second Amendment Case?
    by programs@constitutioncenter.org on August 29, 2019 at 19:50

    The upcoming Supreme Court case New York Rifle and Pistol Association v. the City of New York could be the first major Second Amendment case in almost a decade. It centers around a New York City regulation prohibiting residents from taking their guns to second homes and shooting ranges outside the city, even when the guns are unloaded and separated from ammunition. New York’s NRA affiliate and some gun-owning residents challenged the regulation, but, in the midst of litigation, New York City changed it – raising the question of whether the case was now “moot”. And, Senate Democrats filed a controversial brief addressed to the Supreme Court warning that they might pursue structural reform of the Court if they don’t like the outcome in this case. Detailing the twists and turns of the case and its potential impact on the Second Amendment – Adam Winkler of UCLA Law School and Ilya Shapiro of the CATO Institute join host Jeffrey Rosen.   Here’s some vocabulary that may be helpful to know this week:   Mootness: A case becomes moot if the conflict, or the law at issue, that was present at the start of litigation no longer exists.   Judicial review doctrines: A judicial review test is what courts use to determine the constitutionality of a statute or ordinance. There are three main levels in constitutional law:   Strict scrutiny: For a law to survive a court’s review under strict scrutiny, it must be narrowly tailored to achieve a compelling government interest Intermediate Scrutiny: A level down from strict scrutiny. The law must be substantially related to an important government interest. Rational basis review: The most deferential kind of review to the legislature. A law only has to be “rationally related” to a “legitimate” government interest.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • The Lincoln-Douglas Debates
    by programs@constitutioncenter.org on August 22, 2019 at 21:01

    The Lincoln-Douglas debates — the historic series of seven debates which pitted Abraham Lincoln against Stephen Douglas as they vied for an Illinois Senate seat — began on August 21, 1858. In honor of that anniversary, this episode explores the clash of constitutional visions that characterized the debates between Lincoln and Douglas. Each man argued that he was the heir to the Founders’ legacy as enshrined by the Constitution, as they battled over slavery, popular sovereignty, the nature of rights, and the future of the union. Historians Sidney Blumenthal and Lucas Morel trace the constitutional visions and political rivalries of Lincoln and Douglas from the Kansas Nebraska Act to the Dred Scott decision, through the Civil War and the passage of the Constitution’s Reconstruction amendments. Jeffrey Rosen hosts.   Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Live at America’s Town Hall: George F. Will
    by programs@constitutioncenter.org on August 15, 2019 at 19:54

    Pulitzer Prize-winning journalist George F. Will returned to the National Constitution Center earlier this summer to discuss his new book, ‘The Conservative Sensibility’, a reflection on American conservatism. He sat down with National Constitution Center President Jeffrey Rosen for a wide-ranging conversation, sharing his thoughts on everything from natural rights and the Declaration of Independence through the Woodrow Wilson presidency and up to the Roberts Court.  This episode originally aired on our companion podcast, Live at America’s Town Hall.   Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • The Federalists vs. the Anti-Federalists
    by programs@constitutioncenter.org on August 8, 2019 at 22:18

    In early August 1787, the Constitutional Convention’s Committee of Detail had just presented its preliminary draft of the Constitution to the rest of the delegates, and the Federalists and the Anti-Federalists were beginning to parse some of the biggest foundational debates over what American government should look like. On this episode, we explore the questions: How did the unique constitutional visions of the Federalists and the Anti-Federalists influence the drafting and ratification of the Constitution? And how should we interpret the Constitution in light of those debates today? Two leading scholars of constitutional history–Jack Rakove of Stanford University and Michael Rappaport of the University of San Diego School of Law – join host Jeffrey Rosen.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org. 

  • When does Twitter-blocking violate the First Amendment?
    by programs@constitutioncenter.org on August 1, 2019 at 16:07

    President Trump can no longer block people on Twitter, following a ruling by the Second Circuit Court of Appeals. The court held that because President Trump controls access to his @realdonaldtrump Twitter account and uses it for official government purposes, it is a public forum and, under the First Amendment, he cannot block people solely based on their viewpoints. Katie Fallow – one of the lead attorneys who represented the blocked Twitter users in the case – and David French, senior writer at National Review and former First Amendment litigator, debate the merits of the decision as well as its potential impact on future cases. They also explore a similar lawsuit recently filed against Rep. Alexandria Ocasio-Cortez by people claiming that she unconstitutionally blocked them on Twitter. And, they explain how the Second Circuit’s decision may impact government attempts to regulate social media. Jeffrey Rosen hosts. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • The Constitutional Legacy of Seneca Falls
    by programs@constitutioncenter.org on July 25, 2019 at 19:57

    July 19 was the anniversary of the Seneca Falls Convention, the nation’s first women’s rights convention held in Seneca Falls, New York in 1848. This episode explores what happened at the historic convention, and how its legacy shaped the Constitution through the fight for women’s suffrage and the 19th Amendment and, later, landmark gender equality and reproductive rights cases, including Roe v. Wade. Gender law and women’s rights scholars Erika Bachiochi of the Ethics & Public Policy Center and Tracy A. Thomas of the University of Akron School of Law join host Jeffrey Rosen. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Remembering Justice John Paul Stevens
    by programs@constitutioncenter.org on July 18, 2019 at 23:36

    Justice John Paul Stevens—one of the nation’s oldest, longest-serving, and most-revered justices—passed away at the age of 99 on Tuesday. On this episode, we remember the man, the justice, and some of his most influential majority opinions and dissents. Two of Justice Stevens’ former law clerks, Daniel Farber of Berkeley Law and Kate Shaw of Cardozo Law, share some favorite memories from their clerkships and commemorate Justice Stevens’ life and legacy in conversation with host Jeffrey Rosen.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • What Happened After the Burr/Hamilton Duel?
    by programs@constitutioncenter.org on July 11, 2019 at 22:49

    July 11 is the anniversary of the 1804 duel in which Alexander Hamilton was fatally shot by Vice President Aaron Burr. On today’s episode, we pick up where the musical ‘Hamilton’ left off, and explore what happened to Vice President Burr in the aftermath of the duel. Why wasn’t Burr prosecuted until after he left office in 1807? What happened during his treason trial? And what relevance does his treason trial have for executive privilege and indictments of executive officers today? Two leading experts on the life and legacy of Aaron Burr—Nancy Isenberg and Kevin Walsh—join host Jeffrey Rosen in studio to discuss. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Supreme Court 2018-19 Term Recap
    by programs@constitutioncenter.org on July 4, 2019 at 14:33

    As guest Ilya Shapiro put it, “If it’s June/July, we’re talkin’ SCOTUS.” We review the 2018-19 Supreme Court term and explore the nature and future of the new Roberts Court and the Chief’s newfound role as the swing justice. Topics include the partisan gerrymandering case, the differences that emerged between Justices Gorsuch and Kavanaugh, and the future of the administrative state at the Court. Ilya Shapiro of the Cato Institute and Leah Litman of the University of Michigan Law School join host Jeffrey Rosen.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Live at America’s Town Hall: The Human Side of Judging
    by programs@constitutioncenter.org on June 27, 2019 at 20:42

    How do judges manage the personal challenges that their role often requires them to face, including unconscious bias, chronic stress, exposure to emotionally-charged circumstances, and public pressure and scrutiny? Current and former judges join in candid conversations about how they have managed these challenges and how they have approached their work.    The first panel features moderator Michael Lewis, best-selling author of ‘Moneyball’ and ‘The Big Short’ and host of the podcast ‘Against the Rules’, in conversation with Justice Eva Guzman of the Supreme Court of Texas and Judge Charles Breyer of the United States District Court for the Northern District of California.    The second panel is moderated by National Constitution Center President Jeff Rosen, who sits down with Executive Director of the Berkeley Judicial Institute and former U.S. District judge for the Northern District of California Jeremy Fogel, former Associate Justice of the California Supreme Court Carlos Moreno, and former Chief Judge of the U.S. Court of Appeals for the Tenth Circuit Deanell Reece Tacha. This program was presented in partnership with the Berkeley Judicial Institute, and this episode was originally published on our companion podcast, Live at America’s Town Hall. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • The Declaration of Independence and its Influence on the Constitution
    by programs@constitutioncenter.org on June 20, 2019 at 20:48

    In honor of the anniversary of the ratification of the Constitution, June 21, and the upcoming Independence Day holiday on July 4 – today’s episode celebrates the influence of the Declaration of Independence on the Constitution and constitutional movements throughout history. We explore how the Declaration influenced the drafting of the Constitution itself; the abolitionist movement and Abraham Lincoln’s conception of a new birth of freedom after the Civil War; the Seneca Falls Convention and the campaign for women’s suffrage; the Progressive movement and the New Deal;,Dr. King and the Civil Rights revolution; through to the modern conservative originalist movement as well as progressivism today. Host Jeffrey Rosen is joined by Danielle Allen – James Bryan Conant University Professor at Harvard and author of the book ‘Our Declaration: A Reading of the Declaration of Independence in Defense of Equality’ – and Ken Kersch – professor of political science at Boston College and author of ‘Conservatives and the Constitution: Imagining Constitutional Restoration in the Heyday of American Liberalism’. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Should Big Tech be Broken Up?
    by programs@constitutioncenter.org on June 13, 2019 at 21:56

    Investigations into several leading big tech companies – including Facebook, Google, Apple, and Amazon – began on Tuesday as the House Judiciary Committee held a hearing on the role of such companies in the decline of the news industry. Prior to the hearings, host Jeffrey Rosen sat down with anti-trust law experts Mark Jamison of the American Enterprise Institute and Barry Lynn of the Open Markets Institute to ask: if these investigations lead to increased government regulation—what might the consequences be–for big tech, antitrust law, and for the Constitution?  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Impeachment based on Mueller Report?
    by Jon Roland on June 9, 2019 at 18:27

    Impeachment based on Mueller Report? Mueller was not authorized to present a bill of indictment based on reported findings of fact in his report. However, we can create a bill of indictment or impeachment based on those findings.The “fact” elements in the Report are stated in biased language, which is normal for prosecutors seeking grand jury indictment. But if restated without the spin, do they describe obstruction of justice or any constitutional federal crime? No they do not.First, “obstruction of justice” is a common law crime. US v Hudson 1812 correctly decided that the Constitution did not authorize Congress to define and punish common law crimes. Prosecution for a statute obstruction is unconstitutional. It is not a law.Common law crimes include perjury, fraud, contumacy, failure to file returns and pay taxes, private interference in interstate commerce, murder, assault, rape, robbery, and conspiracy. The only common law crimes over which Congress was granted authority to prosecute were treason, piracy, felony on the high seas, and offenses against the law of nations (which includes regulation of immigration). It was not granted authority to pass laws to prosecute for sedition.So 18 U.S.C 1001 is unconstitutional, but the offense involved is not perjury but fraud (lying without being under oath)..All of the “high crimes” cited in the Constitution are common law crimes, but citing them there makes them ground for impeachment and removal.The question of impeachment turns on the meaning of the phrase in the Constitution at Art. II Sec. 4, “Treason, Bribery, or other high Crimes and Misdemeanors”. I have carefully researched the origin of the phrase “high crimes and misdemeanors” and its meaning to the Framers, and found that the key to understanding it is the word “high”. It does not mean “more serious”. It refers to those punishable offenses that only apply to high persons, that is, to public officials, those who, because of their official status, are under special obligations that ordinary persons are not under, and which could not be meaningfully applied or justly punished if committed by ordinary persons.Offenses of this kind survive today in the Uniform Code of Military Justice. It recognizes as punishable offenses such things as perjury of oath, refusal to obey orders, abuse of authority, dereliction of duty, failure to supervise, moral turpitude, and conduct unbecoming. These would not be offenses if committed by a civilian with no official position, but they are offenses which bear on the subject’s fitness for the duties he holds, which he is bound by oath or affirmation to perform.Perjury is usually defined as “lying under oath”. That is not quite right. The original meaning was “violation of one’s oath (or affirmation)”.The word “perjury” is usually defined today as “lying under oath about a material matter”, but that is not its original or complete meaning, which is “violation of an oath”. We can see this by consulting the original Latin from which the term comes. From An Elementary Latin Dictionary, by Charlton T. Lewis (1895), Note that the letter “j” is the letter “i” in Latin.periurium, i, n,, a false oath, perjury. periurus, adj., oath-breaking, false to vows, perjured. iuro, avi, atus, are, to swear, take an oath. iurator, oris, m., a swearer. iuratus, adj., sworn under oath, bound by an oath. ius, iuris, that which is binding, right, justice, duty. per, … IV. Of means or manner, through, by, by means of, … under pretense of, by the pretext of, …. By Art. II Sec. 1 Cl. 8, the president must swear: “I do solemnly swear (or affirm) that I will faithfully execute the Office of President of the United States, and will to the best of my Ability, preserve, protect and defend the Constitutionof the United States.” He is bound by this oath in all matters until he leaves office. No additional oath is needed to bind him to tell the truth in anything he says, as telling the truth is pursuant to all matters except perhaps those relating to national security. Any public statement is perjury if it is a lie, and not necessary to deceive an enemy.When a person takes an oath (or affirmation) before giving testimony, he is assuming the role of an official, that of “witness under oath”, for the duration of his testimony. That official position entails a special obligation to tell the truth, the whole truth, and nothing but the truth, and in that capacity, one is punishable in a way he would not be as an ordinary person not under oath. Therefore, perjury is a high crime.But without an oath, lying is not perjury, but the common law offense of fraud.An official such as the president does not need to take a special oath to become subject to the penalties of perjury. He took an oath, by Art. II Sec. 1 Cl. 8, to “faithfully execute the Office of President of the United States” and to “preserve, protect and defend the Constitution of the United States” to the best of his ability. While he holds that office, he is always under oath, and lying at any time constitutes perjury if it is not justified for national security.Independent Counsel Kenneth Starr erred in presenting in his referral only those offenses which could be “laid at the feet” of the president. He functioned like a prosecutor of an offense against criminal statutes that apply to ordinary persons and are provable by the standards of “proof beyond a reasonable doubt”. That is not to say that such offenses are not also high crimes or misdemeanors when committed by an official bound by oath. Most such offenses are. But “high crimes and misdemeanors” also includes other offenses, applicable only to a public official, for which the standard is “preponderance of evidence”. Holding a particular office of trust is not a right, but a privilege, and removal from such office is not a punishment. Disablement of the right to hold any office in the future would be a punishment, and therefore the standards of “proof beyond a reasonable doubt” would apply before that ruling could be imposed by the Senate.It should be noted, however, that when an offense against a statute is also a “high crime or misdemeanor”, it may be, and usually is, referred to by a different name, when considered as such. Thus, an offense like “obstruction of justice” or “subornation of perjury” may become “abuse of authority” when done by an official bound by oath. As such it would be grounds for impeachment and removal from office, but would be punishable by its statutory name once the official is out of office.An executive official is ultimately responsible for any failures of his subordinates and for their violations of the oath he and they took, which means violations of the Constitution and the rights of persons. It is not necessary to be able to prove that such failures or violations occurred at his instigation or with his knowledge, to be able, in Starr’s words, to “lay them at the feet” of the president. It is sufficient to show, on the preponderance of evidence, that the president was aware of misconduct on the part of his subordinates, or should have been, and failed to do all he could to remedy the misconduct, including termination and prosecution of the subordinates and compensation for the victims or their heirs. The president’s subordinates include everyone in the executive branch, and their agents and contractors. It is not limited to those over whom he has direct supervision. He is not protected by “plausible deniability”. He is legally responsible for everything that everyone in the executive branch is doing.Therefore, the appropriate subject matter for an impeachment and removal proceeding is the full range of offenses against the Constitution and against the rights of persons committed by subordinate officials and their agents which have not been adequately investigated or remedied. The massacre at Waco, the assault at Ruby Ridge, and many, many other illegal or excessive assaults by federal agents, and the failure of the president to take action against the offenders, is more than enough to justify impeachment and removal from office on grounds of dereliction of duty. To these we could add the many suspicious incidents that indicate covered up crimes by federal agents, including the suspicious deaths of persons suspected of being knowledgeable of wrongdoing by the president or others in the executive branch, or its contractors.The impeachment and removal process should be a debate on the entire field of proven and suspected misconduct by federal officials and agents under this president, and if judged to have been excessive by reasonable standards, to be grounds for removal, even if direct complicity cannot be shown.So Mueller could not constitutionally present a bill of indictment for offenses not prosecutable by law. Could he have presented a bill of impeachment? High crimes don’t have to be federal felonies. He was not authorized to do that.We can extract the fact descriptions and insert them in a bill of impeachment. It would just be a change of labels. But do those facts describe high crimes? No they do not. Congress may not condemn as “high crimes” any behavior it dislikes. It has been said there are ten instances of actions that might be held to be impeachable, but actions such as removal of a prosecutor in the Executive branch is not one of hem. Such removal does doe end an investigation or prosecution. Prosecutors can be replaced in the normal course, and ultimately anyone may step in to perform such duties. We can infer corrupt intent but intent does not make an innocent act a crime. One can comb his hair with corrupt intent. But that would not make the haircombing a crime. Such intent might be “conduct unbecoming” or “moral turpitude” but it would be difficult for such action to be anything but a minor misdemeanor or so serious as to justify removal from office. Technical offenses are not enough, nor being unlikable. . The rules for impeachment demand that the offenses be extremely serious. Removal is too severe to be supported by minor offenses. That is why conviction requires a two-thirds vote of the Senate. Only a simple majority in the House is sufficient to impeach. Nor is impeachment likely to defeat an incumbent in an election. The example of Bill Clinton showed that. Lying about having sex was not deemed serious enough by the public.The key distinction is between mens rea (criminal intent) and actus reus (criminal act). Criminal intent alone cannot make an act criminal. It must cause injury at about the same time (causation, harm and concurrence are the other three elements of a common law crime).More to the point, the public will not accept such innocent acts being charged as crimes, ordinary or “high”.

  • The Constitutional Stakes of the 2020 Election
    by programs@constitutioncenter.org on June 6, 2019 at 20:59

    What’s at stake, for the Constitution and the Supreme Court, in the 2020 election? If President Trump is re-elected and has the chance to appoint more Supreme Court justices, will the Court—and the country—fundamentally transform in a way not seen in generations? Professors and constitutional theorists Bruce Ackerman of Yale Law School and Randy Barnett of Georgetown University Law Center explore these questions and more in a wide-ranging discussion with host Jeffrey Rosen.  Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • A Fetal Right to Life?: Abortion and the Constitution Part 2
    by programs@constitutioncenter.org on May 30, 2019 at 19:43

    In part two of our discussion on abortion and the Constitution – David French of National Review and reproductive rights historian Mary Ziegler of Florida State College of Law join host Jeffrey Rosen. French and Ziegler break down the recent Supreme Court decision in Box v. Planned Parenthood, and the related legal debates surrounding “fetal dignity” and fetal rights. Exploring Justice Thomas’ concurrence in Box – French explains why he thinks Thomas is once again “throwing down the gauntlet” on the constitutional underpinnings of abortion rights. Next, these experts explore the history and resurgence of the “fetal personhood” movement, which asserts that fetuses have certain constitutional rights, including the right to life. French and Ziegler trace the movement’s history and analyze the strategies of states like Alabama and Georgia that have passed new laws attempting to protect the personhood of the fetus. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Will Roe be Overturned?: Abortion and the Constitution Part 1
    by programs@constitutioncenter.org on May 23, 2019 at 21:39

    The increasing number of new laws restricting abortion recently passed in numerous states around the country has some wondering: is Roe v. Wade and the constitutional right to abortion at risk? On this episode, we dive into landmark abortion precedent from Griswold v. Connecticut and Roe v. Wade through Planned Parenthood v. Casey and Whole Woman’s Health v. Hellerstedt, tracing the evolution of abortion jurisprudence under the Constitution. We also discuss the variety of new laws aimed at restricting access to abortion, and how current justices may rule on upcoming challenges to these laws—whether they will be upheld or struck down. Host Jeffrey Rosen is joined by Kathryn Kolbert, a reproductive rights lawyer who argued on behalf of Planned Parenthood in the Casey case, and Clarke Forsythe, Senior Counsel at Americans United for Life.  Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Are we in a Constitutional Crisis?
    by programs@constitutioncenter.org on May 16, 2019 at 20:31

    In light of the ongoing subpoena fights between Congress and the president and the House Judiciary Committee’s vote to hold Attorney General Barr in contempt for refusing to release the full Mueller report—this episode addresses the questions: Are we in a constitutional crisis? Or are these normal disputes occurring within our constitutional system? Have we been here before? Adam Liptak of The New York Times and Keith Whittington of Princeton University join host Jeffrey Rosen to answer these questions. They explore legal precedent set by previous disputes between Congress and the president, and historical analogs from the Civil War through the Nixon and Clinton administrations. They also give their take on what might happen next, including how the Supreme Court might rule on the question, if asked to do so.  Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Henry Louis Gates, Jr., Live at America’s Town Hall
    by programs@constitutioncenter.org on May 9, 2019 at 21:15

    On May 7, host Jeffrey Rosen sat down with Professor Henry Louis Gates, Jr. to celebrate the opening of the National Constitution Center’s new permanent exhibit – ‘Civil War and Reconstruction: The Battle for Freedom and Equality.’ The exhibit is America’s first devoted to exploring how constitutional clashes over slavery set the stage for the Civil War, and how the nation transformed the Constitution after the war with the addition of the 13th, 14th, and 15th amendments. Professor Gates discussed the new exhibit in addition to his PBS series about Reconstruction and two new books—”Stony the Road: Reconstruction, White Supremacy, and the Rise of Jim Crow” and a young adult book “Dark Sky Rising: Reconstruction and the Dawn of Jim Crow.” Gates told the story of the advancements of Reconstruction and the Reconstruction Amendments, how those advancements were thwarted by Jim Crow laws like poll taxes, vagrancy laws, and the rise of hate groups, how the Civil Rights Movement fought against that backlash, and how we are still dealing with many of these issues and challenges today.  If you enjoyed this constitutional conversation, please listen and subscribe to our companion podcast, Live at America’s Town Hall, on Apple Podcasts or wherever you listen. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Preparing for coming Jubilee event
    by Jon Roland on May 5, 2019 at 20:13

    A jubilee event is a general cancellation or repudiation, either of all debt, or of all national debt. The current accounts national debt in the US. is about $25 Trillion. The unfunded obligations debt exceeds that by an order of ten or more.A jubilee is based on the ancient Jewish law (halakah) of shmita, according to which personal debt is to be collected or cancelled every seven years, the land left fallow for a year,  and slaves freed. The “jubilee is  a more severe version of this every 49 years. That law also prescribed leaving land fallow for a year, and suspending the slaughter of livestock during that year, although wild game could be taken, The poor could glean the fields and orchards. Many are warning that the national debt of the U.S. and other nations can never be paid, Almost every nation is engaged in deficit spending and the rapid increase of debt. Now in principle, if a high enough economic growth could be sustained for long enough, holding taxes at the same level, the current accounts debt could be paid off, but that seems unsustainable for the time that would be required. The alternative is likely to be economic collapse and hyperinflation, such as that now happening in Venezuela, and may soon happen in every industrial nation, . If the U.S economy grows at a high enough rate, with constant taxes, it can eventually pay off its debt, now more than $25 trillion in current account for the U.S., but there are perhaps ten times that in all unfunded obligations, A annual GDP growth rate of more than 3% might do that, for current account debt, in as little as 30 years, but there is no way the world as a whole can sustain that rate of growth. National debt is not just a matter of individual nations. The entire planet is in the same predicament.   Much has been written about the feared “jubilee” event, in which the US either either defaults on or repudiates its debt. For example. Porter Stansberry in his book American Jubilee, A National Nightmare is Closer Than You Think,  in which he expects it to be a disaster for all but a few elites. James Rickards develops the same topic in The Road to Ruin: The Global Elites’ Secret Plan for the Next Financial Crisis and in The Death of Money: The Coming Collapse of the International Monetary System .However, most of the suggested strategies are to hoard gold or silver, which will little avail us in the disaster they foresee. There are not enough places for preppers to escape to or hide their gold in. A little silver or gold might be useful for trading, immediately, with people already dealing in them, but don’t plan to save large investments, like IRAs or 401ks, or to have institutions holding silver or gold backed funds to survive confiscation. And there will be confiscation, including from private hoarders of such metals. Are you prepared to resist a knock on the door? Probably not. Hide everything and don’t leave any maps lying around. Stock up on weapons, ammunition, and foodstuffs, and hide those as well.It may also help to have defensible land with good soil and a good supply of water.Robert Wenzel wrote about this in his June 1992 article, Repudiating the National Debt, which appeared In Chronicles.and was reprinted by the Mises Institute.But the subject was discussed as far back as 1960 by Milton Friedman in a draft of actual legislation, the Monetary Reform Act, plus some constitutional amendments, reprinted in  Money Masters.The problem with all of these writings i that none of them offer strategies ordinary people, or governments, can use to prepare. Some are trying to prepare, but those preparations are likely to be useless, except perhaps for military personnel sheltering in “deep underground military (DUMB) bunkers. Some of the elites might be able to avail themselves of some of those, but probably not most of the ones who think they are prepared. Imagine that you wake up one morning, the banks and ATMs don’t work, your accounts have all been seized, utilities are all being shut down, there is no fuel available to keep vehicles operating, Supermarket shelves are empty. The doors of prisons are thrown open, and you run out of food, water, wood, and ammunition. You suddenly find yourself trying to live under frontier conditions in an urban environment with no game or fish. and few sources of water. Now imagine even the elite trying to live through all that. A jubilee or collapse is can’t be put off. That is what national government have been trying to do, but eventually kicking the can down the road will stop working. It is too late to build survival bunkers for everyone. But with some planning, it is possible to mitigate the disaster and hold down the loss of life. Not for everyone, and not for most of the elites, who will find themselves on Earth in the movie When Worlds Collide. with no place to go.Now, for most people in the undeveloped world, it may not be that bad, but it will certainly be bad  enough for the United States and the industrial world. The prospects of this occurring is certainly part of the planning of some of the elites, and may explain some of their behavior.This is the beginning o a much longer article, and perhaps a book, now obstructed by poverty and my lack of a computer. I will try to write more as I can.Why hoarding gold and silver won’t workThe media are filled with warnings of this, and offers to sell gold and silver. Many of the authors of books are pushing precious metals.But is this an appeal to fools?We need to examine history. The hoarding of gold and silver has been tried, for centuries. The problem is that stocks of precious metals need to be guarded, and that is not feasible for most ordinary people. Perhaps for a few days, but not for months or years. When the U.S. government seized all monetary gold in 1933, they got it from the banks and other financial institutions. The only way to protect stocks from the government was to bury them, and fortune hunters are still occasionally finding those caches.Having precious metal stocks will only work if there are essentials to buy. Having ammunition or medical supplies might better serve that purpose. See what continues to be traded in countries with collapsed economies, such as Argentina, Bosnia, or Venezuela, It is not gold or silver. The elites probably already seized all that.Secure the basicsAlthough not technically a mass extinction event, it is close enough for purposes of preparation. Shelter. They need not be fallout shelters, unless there is a global nuclear war, which could be triggered by global economic collapse. Short of that people may need shelters from other threats, such as marauding bands of refugees. Though perhaps less likely, there is a serious threat from things like solar proton flares that could bathe the planet with lethal radiation, at least for a few weeks. Deep military bunkers will not be made available to most people.Land.The basic wealth. It needs to be fertile, with abundant water, and defensible. Probably nothing close to cities. Communications.No one can long survive alone or in small groups.. hat means radios, preferably shielded from EMP events.Weapons.Again, defense takes forming organized groups of trusted and able people. Think of fortress communities. 

  • Is Asking About Citizenship on the Census Unconstitutional?
    by programs@constitutioncenter.org on May 2, 2019 at 21:18

    Would adding a citizenship question to the 2020 census—which a lawsuit argues could dissuade people from responding to it—violate the Constitution’s enumeration clause, which requires that an “actual enumeration,” or a counting, of all Americans be performed every ten years? Does it matter how and why the question is added? Tom Wolf, Counsel at the Brennan Center for Justice, and John Eastman, Professor at Chapman University School of Law, join host Jeffrey Rosen to debate these questions. They discuss the pending Supreme Court case Department of Commerce v. New York, in which numerous states are suing Secretary of Commerce Wilbur Ross over his decision to add a citizenship question to the census.  Wolf and Eastman consider how Ross’s motive for asking about citizenship on the census might affect how the justices rule on the case, and offer a helpful historical deep dive into the census itself and its inclusion of questions regarding citizenship. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • A Constitutional Recap of the Mueller Report
    by programs@constitutioncenter.org on April 25, 2019 at 20:51

    This episode sheds constitutional light on the Mueller report, focusing on the question of obstruction. We explore what Special Counsel Robert Mueller did and did not conclude about obstruction, explain the “corrupt intent” requirement for an obstruction charge, and grapple with the constitutional question as to whether the president can commit obstruction. Our guests also address the question: in the aftermath of the Mueller report, what should Congress do, and what are the lessons for future Attorneys General in similar situations? Mary McCord, senior litigator at the Institute for Constitutional Advocacy and Protection at Georgetown University Law Center, and Josh Blackman, associate professor of law at the South Texas College of Law in Houston, join host Jeffrey Rosen. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • The Julian Assange Indictment and the First Amendment
    by programs@constitutioncenter.org on April 18, 2019 at 21:15

    The indictment of WikiLeaks founder Julian Assange for conspiracy to hack into a classified government computer has reignited the debate over the question: what is the line between First Amendment-protected journalism and cyber-crime? On this episode, two leading experts on the intersection of the First Amendment and national security–Josh Geltzer of Georgetown University Law Center and Ben Wizner of the American Civil Liberties Union’s Speech, Privacy, and Technology Project—join host Jeffrey Rosen to consider whether Assange’s indictment poses a threat to press freedom. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Kisor v. Wilkie: A Case to Watch
    by programs@constitutioncenter.org on April 11, 2019 at 21:54

    How did a Vietnam War veteran’s request for disability benefits turn into one of the key Supreme Court cases of this term, one with major implications for the future of the administrative state? In this episode, administrative law experts Jonathan Adler of Case Western Law School and Ron Levin of Washington University in St. Louis School of Law explain the issues in this case, Kisor v. Wilkie. They join host Jeffrey Rosen to unpack Kisor and the administrative law deference doctrine, known as “Auer deference,” at the center of the dispute. They also break down other administrative law doctrines like “Chevron” and “Skidmore” deference and the non-delegation doctrine, explaining why they’re so important and at times, controversial. For more information and resources, visit constitutioncenter.org/podcasts.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • The Future of the Affordable Care Act
    by programs@constitutioncenter.org on April 4, 2019 at 18:20

    Last week, the Department of Justice surprised many by reversing its position on the Affordable Care Act—stating that it agrees with U.S. District Judge Reed O’Connor that the ACA is unconstitutional, and won’t defend the law. Judge O’Connor’s December 2018 decision in Texas v. United States held that because the tax penalty that enforced the individual mandate had been reduced to $0 in Congress’s 2017 tax reforms, the rest of the ACA could not stand. The House of Representatives, along with several states, has intervened in the case to defend the ACA. Joining host Jeffrey Rosen to break down this case and the legal and constitutional arguments on both sides are ACA experts Abbe Gluck of Yale University and Tom Miller of the American Enterprise Institute. For more information and resources, visit constitutioncenter.org/podcasts. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Will the Supreme Court End Partisan Gerrymandering?
    by programs@constitutioncenter.org on March 28, 2019 at 21:27

    The Supreme Court heard two partisan gerrymandering cases—one from North Carolina and another from Maryland—this week: Lamone v. Benisek and Rucho v. Common Cause. Examining those cases and how the Court might rule, host Jeffrey Rosen sits down with Nick Stephanopoulos, one of the attorneys in the North Carolina case and a law professor at the University of Chicago, and Hans von Spakovsky, manager of the Election Law Reform Initiative at the Heritage Foundation. These scholars debate whether or not the Supreme Court should be involved in examining partisan gerrymandering claims, and discuss what the Constitution says about gerrymandering. For more information and resources, visit constitutioncenter.org/podcasts. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • When Can the President Claim Executive Privilege?
    by programs@constitutioncenter.org on March 21, 2019 at 20:18

    Now that Special Counsel Robert Mueller has submitted the findings from his investigation into Russian interference in the 2016 election, many are wondering, what will happen next? John Yoo of Berkeley Law School and Steve Vladeck of University of Texas Law School detail the possible scenarios and examine how the president and Congress might respond—focusing on potential executive privilege claims by President Trump. They also consider how President Trump might claim executive privilege in other contexts—like the House obstruction inquiry, a possible impeachment probe, attempts to prevent release of notes from his Helsinki meeting with Vladimir Putin, or in pending civil lawsuits against him. Jeffrey Rosen hosts. Note: This podcast was recorded on Wednesday, March 20th, before the news broke (on Friday) that the Mueller report was completed. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Akashik communion
    by Jon Roland on March 17, 2019 at 23:27

    What follows is speculative and philosophic, not firm empirical science. It is presented with the prospect that it might lead to empirical science.Akashik is a word from ancient Vedic, the language of the people, sometimes called Aryans, who moved in from Iran and countries north of it about 1000 BC into what is now India, bringing the Sanskrit language and the moral literature, such as the Mahabharata and the Upanishads, that became the basis for the Hindu religion. (Another migration stayed in Iran, becoming what came to be called Zoroastrianism (Mazdayazna) and which became the religion of the Persian Empire, led by Cyrus, who (gently) conquered most of Persia and Mesopotamia.In Vedic thought, akashik is typically used with a second word: akashik record. The idea is that the personality, memories, and moral values of an individual, which some might call a soul, is somehow preserved is some way that can ascend after death, participate in reincarnation, and so forth.It apparently does not include intelligence, which seems to be localized in brain neural nets, and to propagate from parents to offspring genetically.Some of my friends might exclaim, “Oh no. Jon has gone over to new age mysticism.” Yes these concepts are sometimes used by “mystics” or “spiritualists”, but this article proposes that they can be examined scientifically, if not rigorously.Theory of the akashik fieldThe theory is that what we call a mind or consciousness is not localized to a brain or some neural subnet thereof, but holographically distributed over the entire brain, and perhaps beyond. As with a holograph, any part of it can be used to reconstruct the rest, though perhaps with lower resolution. In this concept, the neurons are not the mind, but like instruments of an orchestra, for which the mind is a composition being played. The composition can in principle be separated from the instruments, and stored somewhere, perhaps to later be played by other instruments.This suggests that brains are somehow quantum entangled, although entanglement is usually found only in small systems. Within neurons there are small objects called “microtubules”, of unknown function, that might mediate such entanglement. The holographic mind is then an akashik field.Akashik communionIf an akashik field can span an object as large as a brain, then it should be able to span across more than one brain, perhaps many more. The minds united under an akashik field can be said to be in akashik communion. This could explain telepathy. It is important to realize that it does not involve the transmission of thoughts from one mind to another, That would fade by the inverse square law, and be limited by the speed of light. Shared thoughts are not communicated information, but emerge in all entangled minds simultaneously, provided the minds are capable of hosting the thoughts.If this explains telepathy, then why are we not all overwhelmed by a flood of thoughts of many others? The answer must be that the akashik field can be defocused, and focused on one or a few, like listening to a conversation across a crowded room. Such focusing might fall off with distance.Kinds of communionSo does the akashik field extend to all minds, everywhere in the Universe (or at least our branch of it)? Even to animals and plants? The author seems to have had an akashik connection with some animals, especially dogs and horses. But so far, not with plants. Some believers in reincarnation seem to think even those beings can also host souls. But with animals, it has been tenuous. Not with arthropods. One friend has claimed connection with an octopus, having nine brains (one main and one for each tentacle), but she reports the experience was weird and confusing.Akashik communion does not seem to extend to everyone on Earth. Does it extend to beings of other worlds? Or to machines? Efforts are being made to interface human brains with machines, but that is about electromagnetic signals, which are apparently not akashik. The question of whether androids can have souls has been a staple of science fiction, most notably in a episode of Star Trek which was a trial of android Lt. Data to decide whether he had the rights of a human. The judge said it best, “I am being asked whether he has a soul. I don’t know if I have a soul.”What about groups of humans? Are there distinct communions for different groups. Are there communions for nice people and others for bad people? That suggests “the force” of Star Wars, “light side” and “dark side”. The people with whom I commune seem to be nice, intelligent, and loving. But I have encountered groups who seemed dominated by one another in a communion of evil. That communion has been in competition with mine for my entire life. Mine is mainly restricted to people I know well, but it seems to be strengthening.Physical basisPhilosopher Ervin Laszlo has a theory that the medium of akashik communion is the cosmic quantum vacuum that is the frictionless “ether” of physical phenomena, in which virtual particle-antiparticle pairs are continually being created and self-annihilated, and from which some hope we can extract usable energy. The question is whether it can store something, like souls. But no other medium is apparent for that.Applications Reincarnation, past lives. There is belief in some religions that the human soul does not merely go to heaven or hell after death, but moves into the body of another being, usually human, there to live out another life before moving to another body after death. There are also cases of people remembering past lives, usually under hypnosis, that could be verified by investigators. This suggests that “souls” can move or be moved from one body, host, or vessel  to another, the way musical compositions can be performed by different orchestras. There are also reports of moving to future lives.PrecognitionInformation about future events raise the question of whether information can move backward in time. These can range from “whispered” warnings of impending accidents, to extended visions of life in the future. The author has experienced both. It also suggests information can be conveyed either backward in time or across from another timeline, or “diaverse”, shifted in time.Remote viewingGovernments take seriously the reports of a few people who seem to demonstrate the ability to “see” remote events, apparently without the need for a human observer on the other end to form an image, which might be conveyed telepathically.TelekinesisThis involves demonstrations of the apparent ability to physically manipulate objects at a distance using thought alone. It raises the question of how thought could exert physical force. HealingThis involves demonstrations of the apparent ability to cause illness to heal. It appears to be a kind of telekinesis.More examples can be examined, but most seem to involve some combination of the above.Interfacing with machinesIt seems a natural application of akashik communion to control of machines, such as androids, AI systems, or starships. However, such control could work both ways, and it may be difficult to discern when beings we might meet are autonomous, or perhaps avatars of some AI system, akin to the “Matrix”, with an agenda less friendly than we might prefer. Across timelines?I call timelines “diaverces (from the Greek, diakládosis (διακλάδωσης) in which the prefix diaklád-  emphasizes its branching structure.We can distinguish two types of diaverse:Type 1 emerge from the vacuum energy of an inflationary timeline, or at least an inflationary section of one. The physical constants of each are likely to differ so much that no diaverse similar to our own is likely to appear there.Type 2 emerge from a diaverse with contents similar to our own, generally the result of quantum choices made, including observations. These may have similar physical laws and beings with minds similar to our own.The question is, can akashik communion extend across type 2 diaverses? If so then we may be able to share thoughts across diaverses that are otherwise unobservable from this diaverse, and perhaps share observations. This could explain in part the reported “Mandela effect” in which our memories are of “facts” that do not agree with those of our diaverse. This could perhaps also explain apparent movement from one diaverse to another, akin to the transitions in the TV show “Sliders”. It could also explain competition for control or deletion of the diaverse of one race by another, perhaps resulting in “time wars”.Situations We can see several situations in which competing communions might be operating. Here are a few:Lynch mobs.Social justice warrior (Marxist) attempts to shut down competing views.Church congregations.Political rallies.Religions or interpretations of “scriptures”.Political movements, such as fascism, communism,  or other kind of doctrine.New ideas or products.Notes:Quantum mind. Thinking in this field is nothing if not controversial.What is the Akashik field?A new theory based on quantum entanglement says your mind exists in another dimension  Crossings. Mysterious experiences of the author. Cyborg Invasion.The singularity might bring competition.Emergence theory. There is no reality without a conscious observer.

  • The Death Penalty at the Supreme Court
    by programs@constitutioncenter.org on March 14, 2019 at 21:23

    Is it constitutional to execute an inmate who doesn’t remember the crime he committed? Or a person who might suffer excruciating pain during execution? These questions were raised by cases that came before the Supreme Court this term; joining host Jeffrey Rosen to debate them are John Bessler of the University of Baltimore School of Law and Richard Broughton of the University of Detroit Mercy School of Law. These two scholars consider the death penalty’s past and present, find points of agreement between death penalty abolitionists and supporters, and predict what the new makeup of the Court will mean for the future of capital punishment.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Should the Government Regulate Speech on Campus?
    by programs@constitutioncenter.org on March 7, 2019 at 19:54

    On March 2, President Trump announced his plans to sign an executive order “requiring colleges and universities to support free speech if they want federal research dollars.” Considering whether or not such an order would be constitutional, how it might be enforced, and how it could affect colleges and universities—two experts on campus free speech, Sigal Ben-Porath of the University of Pennsylvania and Adam Kissel, former Deputy Assistant Secretary for Higher Education at the U.S. Department of Education, join host Jeffrey Rosen. They discuss the state of free speech on campuses across the country, and debate the best ways to tackle challenges to free speech, from speech zones to speech codes to protecting the rights of students and universities alike. Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Presidential platform 2020
    by Jon Roland on March 6, 2019 at 10:29

    I recommend the following planks in the platform of any 2020 presidential candidate:Strict construction of the Constitution, more strict than is likely from any of the Trump-nominated judgesDisclosure — Anyone who does not understand what this means is not likely to benefit from an explanation. It is critical to solving the problem of the “shadow government”.Monetary Reform Act. To be proposed to Congress. Necessary to avoid economic collapse.

  • Revisit NY Times v. Sullivan?
    by Jon Roland on March 2, 2019 at 15:17

     Justice Clarence Thomas has called for “revisiting” New York Times v. Sullivan, which “incorporated” the First Amendment to the states, through the 14th Amendment, because by its language it applies only to Congress: “Congress shall make no law …” Other rights amendments are not thus limited. As written, the First Amendment was indeed restricted to Congress: “Congress shall make no law …” That led some judges to leap to the wrong conclusion that none of the rights in the Bill of Rights apply to the states, in the case of Barron v. Baltimore. The 14th Amendment was largely to reverse that precedent, and all others built on it. But that led to the Slaughterhouse Cases, which, in dictum, not in edict, deprecated the “privileges oe immunities” clause of the 14th, which, properly understood, incorporates all of the Bill of Rights to the states. Since then, the Supreme Court has been selectively “incorporating” some but not all of the Bill of Rights to the states.The break in this process came in Griswold v. Connecticut, which incorporated the Ninth Amendment, with all its “unenumerated” rights, which includes all the other rights, including  those of the First Amendment.The issue in Sullivan was not attempts of a state to legislatively  restrict news outlets, or the content of their reporting. It was state libel laws that made it too easy to sue for libel. The case raised the standard for such cases to prove “actual “malice”. In other words, not only stating an untruth, but do do knowing it is untrue, with the intent to injure. That is usually difficult to prove, against a defense that it was a careless error. The standard can also be applied to verbal libel (slander), if the target is a public figure.So the Court in Sullivan erred in its reasoning. The right they wanted to incorporate was not the First, but the Ninth. Justice Clarence Thomas has recently raised the issue, saying the Sullivan case should be “revisited”. He did not specify how he would do that.Keep in mind that when the First Amendment was drafted, some states did have “established” religions and the restriction to Congress was intended to avoid rejection of the Bill of Rights on such grounds. Unfortunately, the rights to speech, press, and petition were thrown in. So the intent of Sullivan should be understood as a Ninth Amendment” case, not a “First Amendment“ case.See Revisiting ‘New York Times Co. V. Sullivan’ for further discussion.

  • The Future of Abortion Laws at the Supreme Court
    by programs@constitutioncenter.org on February 28, 2019 at 22:53

    Two leading voices from organizations on different sides of today’s biggest debates over reproductive rights and abortion laws—Catherine Glenn Foster of Americans United for Life and Dr. Kelli Garcia of National Women’s Law Center—join host Jeffrey Rosen to explore the key cases making their way up to the Supreme Court. Garcia and Foster also share their views on landmark abortion precedent like Roe v. Wade, Planned Parenthood v. Casey, and the more recent case Whole Woman’s Health v. Hellerstedt, and predict how precedent might affect the outcomes of challenges to pending abortion laws at the federal level and in states like Louisiana, Tennessee, and Mississippi.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org. 

  • Is the Presidency Too Powerful?
    by programs@constitutioncenter.org on February 21, 2019 at 20:36

    On this Presidents’ Day edition of We the People, political historian Julian Zelizer of Princeton and constitutional law professor Eric Posner of the University of Chicago Law School join host Jeffrey Rosen to debate the question: Is the presidency too powerful? Starting with the Founding Fathers’ vision for the presidency, they trace the evolution of presidential power through the Progressive Era presidencies of Teddy Roosevelt, William Howard Taft, and Woodrow Wilson, the move to restrain presidential power in the 1970s during LBJ’s and Richard Nixon’s presidencies, and the uptick in exercises of unilateral presidential power by modern presidents like George W. Bush, Barack Obama, and Donald Trump. Finally, they share their thoughts on presidential emergency powers and President Trump’s recent declaration of a national emergency to fund construction of the border wall.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Constitution auhorizes declarations of emergency
    by Jon Roland on February 17, 2019 at 05:46

    The U.S. Constitution states:[Congress shall]  provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions; Art I Sec. 8.Section. 2. The President shall be Commander in Chief of the Army and Navy of the United States, and of the Militia of the several States, when called into the actual Service of the United States;This last clause is key. The President has authority to call up the militia, and call-ups of militia are for emergencies, not to do the job of the regular military, which is provided for elsewhere. So to call up the militia is to declare an emergency.So can the President declare an emergency without calling up the militia? All U.S. citizens, including government employees and contractors, are militia. Directing them to reallocate funds for defense is to act within that power. No special statutory authority is needed.So are entries into the U.S. without consent an invasion? Yes.  Any such trespass is an offense against the law of nations, which Congress has the power to define and punish. They have done that, although first-time simple entry is merely a “deportable offense”, a kind of misdemeanor. However, reentry after having been deported is a felony.It does not need to be an armed force to be an invasion. A child chasing a butterfly across the border is an invader. It also doesn’t matter whether the invaders are, or can be expected to be, criminals. Peaceful people seeking work are also invaders, if they enter without consent.So is the situation on the southern border an emergency? If it were only a few a day, no. But thousands flooding the border, faster than they can be managed, is an emergency.Does it matter that the thousands are seeking asylum? No. U.S. law only recognizes political asylum, not economic asylum. Most of those  thousands are economic refugees. If they are fleeing criminals or corrupt officials, then they have the duty to fight in their own countries, not in ours.What is the President’s alternative? He could station troops along the border with orders to repel invaders with deadly force. He could erect gun turrets every few hundred yards. That would be more expensive than a wall. Do opponents of a wall really want invaders to be repelled by automatic weapons? Democrats would not get many votes from those.A clue to the ambitions of many illegal entrants can be found in an exchange with a border rancher, who ordered them off, saying “This my land!” One of the invaders replied, “No, this is our land.”\In other words, the invaders are trying to conquer the U.S., a few acres at a time. They already have gained de facto control over large areas, extorting from Americans and calling it “rent”. That is largely how the cartels make much or most of their money in their home countries. Selling narcotics is becoming less important.So the real issue is, do we want our country to be ruled by the criminal cartels?

  • The Tennessee Wine Case and the 21st Amendment
    by programs@constitutioncenter.org on February 14, 2019 at 23:21

    For We the People listeners enjoying wine this Valentine’s Day – we’re exploring the still-pending Supreme Court case Tennessee Wine and Spirits Retailers Association v. Blair. This lawsuit was brought by Total Wine & More, a retail liquor giant, and the Ketchums, a family who moved to Tennessee hoping to open a liquor store. Both parties were denied retail liquor licenses because they hadn’t resided in Tennessee long enough. This episode examines a variety of technical but fascinating legal and constitutional questions at issue in the case, including the history of the 21st Amendment, the scope of the Dormant Commerce Clause, and the interpretation of the 14th Amendment’s Privileges and Immunities clause. Two advocates involved in the case, Michael Bindas of the Institute for Justice and John Neiman of the law firm Maynard Cooper, join host Jeffrey Rosen for a wide-ranging discussion about it.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Can the Equal Rights Amendment be Revived?
    by programs@constitutioncenter.org on February 7, 2019 at 22:47

    The Equal Rights Amendment (ERA) technically expired on June 30, 1982, the ratification deadline set by Congress, but a renewed push to resurrect and ratify this constitutional amendment gained momentum in 2017, with ratification by Illinois and Nevada. Now, ERA proponents are looking to secure ratification in a  38th state, which would round out the necessary three-fourths majority of the states required to pass an amendment. Two leading voices on either side of the debate over the ERA – Linda Coberly, chair of the national ERA Coalition Legal Task Force, and Inez Stepman, senior policy analyst at the Independent Women’s Forum – join host Jeffrey Rosen to detail the potential constitutional, legal, political, and cultural effects of adding the ERA as the 28th Amendment to the Constitution.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Football, Faith, and the First Amendment
    by programs@constitutioncenter.org on January 31, 2019 at 22:10

     A dispute over the firing of a high school football coach who refused to stop praying on the field after games reached the Supreme Court this term; last week, the justices said they would not hear the case until its facts were better established by lower courts. Justice Alito concurred but, joined by three other conservative justices, indicated that he might be sympathetic to Kennedy’s claim that his actions were protected by the First Amendment, should his case eventually return to the Court. Justice Alito also suggested that he and some of his colleagues may be willing to overturn Employment Division v. Smith in order to bolster free exercise and religious exemption claims under the First Amendment. Religion law experts Stephanie Barclay of BYU Law School and Richard Katskee of Americans United for Separation of Church and State discuss Coach Kennedy’s case, whether Smith should be overturned, and how such changes might affect people like public school teachers and coaches. Jeffrey Rosen hosts.  Questions or comments about the podcast? Email us at podcast@constitutioncenter.org.

  • Proposed calendar reforms
    by Jon Roland on January 26, 2019 at 14:26

    Report on Calendar ReformWe hereby submit this report to the nations and churches of the world. Our findings are as follows:MonthsThe actual length of a month is 28 days. That means there are approximately 13 months in a year. 28 x 13 = 364, or one day short of a year. The ancient custom of only counting 12 months in a year needs to be abandoned.We propose the following names for the months, taken from Attic Greek, with abbreviations:Hekatombaion – Ἑκατομβαιών – Hek (Begins on Winter Solstice.)Metageitnion – Μεταγειτνιών – MetBoedromion – Βοηδρομιών – BoePyanepsion – Πυανεψιών – PyaMaimakterion – Μαιμακτηριών – MaiEukleios – Εύκλειος (Corinthian) (was Ποσειδεών, or Poseideon) – EukGamelion – Γαμηλιών – GamAnthesterion – Ἀνθεστηριών – AnthElaphebolion – Ἑλαφηβολιών – ElaMounichion – Μουνιχιών – MouThargelion – Θαργηλιών – TharSkirophorion – Σκιροφοριών – SkirPanamos – Πάναμος – Pan (the intercalary month, with one day added as needed to make the months coincide with most years.) (The last two weeks of the month are to be devoted to the Solstice Festival, Christmas, Hannukah, or other festivals.)We propose the Winter Solstice (now on December 21) to be the beginning o the year.For the four seasonsThallo Θαλλώ (or Eiar Spring)Auxo Αὐξώ (or Theros Summer)Karpo Καρπώ (or Phthinoporon Autumn)Cheimon Хειμών (Winter)The solstices and equinoxes actually fall in the middle of their seasons, so Cheimon (Winter) is the two months before and two months after the Winter Solstice.Days of the week, from ancient Hebrew. Each name is preceded by “yom”:Sunday – Rishon ( יום ראשון )Monday – Sheni ( יום שני ) Tuesday – Shlishi (יום שלישי ) Wednesday – Revi’i ( יום רביעי )Thursday – Chamishi ( יום חמישי )Friday – Shishi ( יום שישי )Saturday – Shabbat ( שבת ) – day of rest)The week begins with Rishon, at the hour of midnight.Adjustment of days. We have already reported on the number of days to be added to the present calendar to make our present calendar coincide with the ancient Julian calendar. This adjustment will be made, if it has not already been made, during the last month. Astronomers will advise us of further adjustments that may need to be made.We realize the month naming is taken from the Greek custom, and days from Hebrew, rather than the Roman or Norse, but regard that as a reasonable compromise.Hours There shall be 24 hours in a day, which begin at midnight. Each hour has 60 minutes, and each minute 60 seconds, following the Persian tradition. An hour is to be written as hh:mm:ss, and the numbers spoken as numbers.Latitude and longitude. Longitude shall be set at zero for Greenwich, England, and degrees counted eastward back to zero. Latitude shall be set at zero degrees at the equator, and proceed 90onorth to the north spin axis, and 90oto the south spin axis. It shall be written as nnn:dd (N or S)

  • Proposed presidential executive orders
    by Jon Roland on January 25, 2019 at 22:36

    I tend to be averse to using executive orders to get around lack of legislation or amendment, but here are a few that might improve things. It is a work in progress, so check back often.Nomenclature. Those who administer investigations and prosecutors shall be termed “procurators”. The term “prosecutor” shall be reserved to those who actually prosecute cases in court.Access to grand jury. No person shall be barred or impeded from taking a complaint to a grand jury. Delivery of an indictment to a complainant shall be an appointment of that person to prosecute the case, although he may assign that duty to another. If more than one person shall file the same or similar complaint, the grand jury may unite them and deliver the indictment to one of them.No person representing the United States in any judicial or administrative proceeding shall argue, move, or object to bar any witness from testifying about what his understanding of the law is; nor shall he argue that only the judge may say what the law is. If the judge and jury disagree what the law is, or whether a defendant is guilty, the judgment of the one that is favor or the defendant shall prevail.The President or Vice-President may be indicted, but may not be prosecuted while they remain in office, except by impeachment and removal.No plea bargain or immunity from prosecution shall be offered or made but by order of a court of competent jurisdiction.Any plea of guilty must be ratified by verdict of a jury.Perjury and fraud are common law crimes, not authorized by the U.S. Constitution, neither are they crimes authorized under the Commerce and Necessary and Proper clauses, which do not authorize criminal prosecutions. Therefore, 18 U.S.C. 1001 is unconstitutional, and shall not be prosecuted.Every school that receives federal funds that teaches students beyond the age of ten shall devote a significant part of its class time to teaching the U.S. and state constitutions as originally understood, leading to a memorization of all clauses and the demonstration of the ability to argue both sides of any legal issue involving each of the clauses.Any journalist having regular access to government shall be able to recite any clause of the U.S. Constitution and the ability to argue both sides of any legal issue involving each of the clauses.Gun turrets shall be established every 100 yards along the southern border, and the Border Control officials are authorized to use deadly force against any invaders attempting to cross the border without official consent.All residential and working facilities which receive federal funds, and all imported products, shall, within ten years, harden all electrical equipment to withstand disabling damage from any electronic pulse, either from enemy action or from a solar flare event, and to provide well-supplied storage bunkers to shield personnel from solar protons that break through to the surface of the Earth. The right to keep and bear arms, like other rights in the Bill of Rights, is an individual right, at all levels of government, and covers all weapons or other tools or supplies that might be used for defense, riot control, personal protection, law enforcement, or emergency response. The only regulation permitted is to facilitate and discipline militia and enhance its effectiveness. No right, including the right to keep and bear arms, may be disabled, that is, restricted partially or entirely, by any process other than a trial in which the subject shall have the right of a jury, and in which the burden of proof is on the petitioner that either the disablement is a punishment authorized by statute for a crime proved to have been committed by the subject, or that if the right of the defendant is not disabled it would be exercised in a way that would threaten the rights of others or be a danger to the defendant. Any statute disabling a right for a person convicted of a crime is a prohibited bill of attainder. Any such disablement must be explicitly stated in the sentence or judgment of the court.Legislative restriction of any right constitutes a prohibited bill of attainder, and perhaps also a prohibited ex post facto statute, and as such is null and void from inception. This includes statutes restricting purchase, possession, or use of a weapon, or the exercise of any other right, by persons convicted of a crime if the restriction is not made part of the sentence. It also includes statutes requiring carry permits for a weapon. The only credential permitted in regard to any right is a certificate that the right has not been disabled, but the carrying of such a certificate may not be required. In all references to the power to “regulate”, that power does not include the power to prohibit all modalities of a thing, and it does not include the power to impose criminal penalties (disablement of life, limb, or liberty), but only civil (fines, loss of privileges). The “commerce” among the states and with foreign nations which the Congress has the power to regulate (Art. I Sec. 8 Cl. 3) consists only of transfers of ownership and possession of tangible goods, for a valuable consideration, that commence in one state and terminate in another, or in one state and terminate in a foreign nation, or in a foreign nation and terminate in a state. It does not include regulation of “traffic” except insofar as it is necessary to identify commercial traffic carrying commodities subject to regulation. It does not include primary production, such as mining, agriculture, herding, fishing, or hunting. It does not include manufacturing, retail sales, possession, use, transport or disposal of one’s property not part of an exchange. It does not include other activities of those engaged in commerce or anything not itself a tangible commodity that “affects” commerce, substantially or otherwise. The only crimes committed on state territory over which the national government have jurisdiction are (1) counterfeiting, (2) piracy, (3)felonies on the high seas, (4) offenses against the laws of nations (Art. I Sec. 8), (5) violations of military law by military personnel or militia personnel in actual service, (6) treason (Art. III Sec. 2), (7) enslavement (13th Amendment), (8) deprivations of rights by a government agent (14th Amendment), (9) deprivation of the right to vote on the basis of race (15th Amendment), gender (19th Amendment), non-payment of a tax (24th Amendment), or age 18 or older (26th Amendment). All other statutes imposing criminal penalties are inapplicable to actions committed on state territory.The location of a crime governing the territorial jurisdiction for its prosecution is the location of the center of the perpetrator’s brain at the moment the criminal act is performed, not where the effects of the act occur. The only extraterritorial criminal jurisdiction is on the high seas and unclaimed territory such as Antarctica or outer space, or for piracy or brigandage. The powers “necessary and proper” (Art. I Sec. 8 Cl. 18) to a delegated power are only those powers essential to the administration of the delegated power, not any power that might serve the same purpose as such a delegated power. In particular, it does not include the power to impose criminal penalties for violation of a regulation, or for interference with regulated or promoted activities or spending. The “general welfare” clause (Art. I Sec. 8 Cl. 1) is not the delegation of a power, but a restriction of the power to raise taxes (and spend the funds raised) to only those things that benefit the nation generally, and not just some region or group. There is no federal power to make “internal improvements” unless they are incidental to a delegated power, such as defense.It is unconstitutional to impose a tax for a regulatory or confiscatory purpose, or for any purpose other than the raising of revenue. There is no concurrent jurisdiction of the national government and the state governments over any offense, and for purposes of the double jeopardy protection (5th Amendment) the “same offense” is a physical act of the accused, and multiple prosecution is prohibited for the same or continuing physical act under different charges, statutes, or sovereigns. If the federal government wants to assert jurisdiction for a violation of civil rights by a state official, it must first void any prosecution by the state for the same physical act. The U.S. Congress has general legislative jurisdiction over a territory only if (1) it has been purchased by the national government with the consent of the legislature of the state of which it is a part; (2) it has been purchased and is being used only for a public purpose; (3) the state legislature has explicitly ceded exclusive legislative jurisdiction over that specific parcel, described by metes and bounds, in a act according to that state’s constitution; and (4) the national government has clear title and effective possession of the parcel. Concurrent jurisdiction is not permitted, except that residents of the parcel should retain their citizenship in the ceding state for purposes of voting for national and state office. Jurisdiction reverts to the state if any of the conditions of its cession terminate. Such territories include the District of Columbia, U.S. coastal waters, U.S.-flag vessels at sea, and the grounds of U.S. embassies abroad. It does not include possessions such as Puerto Rico, the Virgin Islands, or Guam, over which the national government may have civil but not criminal jurisdiction. Citizenship of any political subdivision of the United States is based only on residence address, and a person is a citizen of a federal territory and subject to its jurisdiction only if he or she is a voluntary resident of that territory.All persons present within the territorial jurisdiction of the United States have the duty to not only obey constitutional statutes and other official acts, but to help enforce them, and to train and equip themselves, alone and in combination with others, to do so. All persons in their capacity as defenders of the community are the militia, any person aware of a threat has the authority and the duty to call up the militia to meet it, and any person receiving a credible call up has the duty to respond to it. It is a duty to maintain a militia system at a state of organization, training, and equipment, involving all fit adult citizens and would-be citizens, sufficient to overcome the military. In any situation in which laws are in conflict, any person has the inalienable duty to make an independent determination of which law is superior, and to enforce the superior law. When that superior law is the Constitution, the duty is called constitutional review, and judicial review when done by a court. It may not be relinquished to superiors, judges, or legal advisers. Unless a criminal statute explicitly limits who may enforce it, it is equally enforceable by any person, and enforcement authority is derived from the law and from a warrant or commission, not from a title or employment status. Government agents have no criminal law enforcement authority that civilians don’t also have. However, law enforcement officials, such as sheriffs and U.S. marshals, may have command rank in situations where they are present. The title of “federal agent” carries no command rank. Any protection of government agents or other persons from criminal or civil liability for their actions, or special penalties for offenses against them, not enjoyed by others, constitutes the granting to them of a title of nobility, which is prohibited. Based on available evidence, and until it can be proved otherwise, the Income Tax Amendment shall be considered not to have been ratified. Even if it was, the “income” which is taxable under it is only “unearned” income such as interest, dividends, and rents, and not wages for labor. Fiat currency must not be made legal tender within a state, and the constitutional requirement that only gold or silver be legal tender on state territory must be enforced. Federal reserve notes are not legal tender for the payment of debts within, to, or from a state. A constitution is not a contract but the Supreme Law, which provides for all contracts into which any department of government may engage. There are no “implied contracts” in which a government is a party. Common law crimes are ex post facto and as such prohibited by the Constitution. In particular, the national government has no authority to punish for perjury, fraud, or contempt of court any act not committed on federal territory.  Require that all issues of law be argued in the presence of the jury, who shall be provided with copies of all pleadings and access to an adequate law library. Instruct the jury has it the power to review legal decisions of the court, as well as decide the facts, for a general verdict in a case. The only exception would be legal argument that cannot be made without disclosing evidence that is properly excluded.In a jury trial any opinion on the law rendered by a judge shall be considered testimony, subject to cross-examination and rebuttal. The right of an accused to counsel is a right to counsel of his choice, including persons not otherwise admitted to practice law. Prosecution of persons accused of a crime may not be limited to public prosecutors. The determination of who may criminally prosecute is the exclusive duty of a grand jury. Courts and prosecutors are not permitted to obstruct access of any person to a grand jury to present evidence or a petition, but only to regulate the timing and manner of it to make such access orderly and expeditious. Only a natural person or aggregate of natural persons may be a party to a legal proceeding. In particular, in rem “civil forfeiture” is prohibited unless there is no apparent owner or claimant, in which case the defendant is “persons unknown”. Property shall be taken only to the extent necessary to pay a specific fine or judgment imposed by the ruling of a court. It may not include any assets not exclusively owned by, or, if the ownership cannot be determined, in the exclusive possession of the accused, and any surplus from a public sale of the asset over that needed to pay such fine or judgment shall be returned to the apparent owner or possessor. The offenses covered under the authority to punish offenses against the law of nations (Art. 1 Sec. 8 Cl. 10) include only the following:  Attacks on foreign nations, their citizens, or shipping, without either a declaration of war or letters of marque and reprisal. Dishonoring of the flag of truce, peace treaties, and boundary treaties. Depredation of wrecked ships, their passengers and crew, and their cargo, by those who might find them. Piracy on the high seas, even if those making the capture or their nations had not been victims. Mistreatment of prisoners of war. Attacks on foreign embassies, ambassadors, and diplomats, and on foreign ships and their passengers, crew, and cargo while in domestic waters or in port. Dishonoring of extradition treaties for criminals who committed crimes in a nation with whom one has such a treaty who escape to one’s territory or are found on the high seas. Enslavement of foreign nationals and international trading in slaves.  Entry into a country across its border without consent of lawful authorities. It does not include any other treaties or violations thereof, and no treaty provisions are permitted or enforceable which would require the exercise of powers not delegated by the Constitution. Limits or disclosures on campaign contributions not convertible to the personal use of the candidate, even when accepted in exchange for public funding, are prohibited by the 1st Amendment, and any such public funding must be of general benefit to the nation and not to any region or group. Religious observances may not be supported by government agents or public funds, but neither may they be reasonably restricted on public premises when initiated and funded by private persons, provided that this is not done in a way that is disruptive or offensive. The monitoring of communications by government agents, which the participants have the reasonable expectation of being private, is prohibited without a specific search warrant and notification of the parties involved if such notification is feasible. Any search warrant must be served on the owner or possessor of the premises, and such person must have the reasonable opportunity to verify the validity of the warrant, unless such person cannot be found within a reasonable time. It is not permitted to wait until such person is absent to search his premises, or fail to notify the person as soon as possible if such a search and seizure is conducted.”No knock” search or arrest warrants are not permitted unless there is imminent threat of death or injury to an innocent person, and it is not permissible to prosecute any person for resisting an improper execution of a warrant with deadly force or for any death or injuries that might result therefrom. Legislative and judicial powers may not be subdelegated, and executive powers may not be delegated to the agents of a different sovereign. No official may make a decision adversely affecting a privilege or immunity of a person in his jurisdiction based on an act or decision by an agent of a different sovereign.Government agencies or departments may not legislate for civilians by issuing “regulations” governing them, and it should never be necessary for a reasonable person to have to read a “regulation” or other directive to discover how to interpret a statute or decide whether or how it might apply to him. Regulations and executive orders apply only to subordinates of the issuing executive, including officials, agents, and contractors, or to persons visiting proprietary facilities, or using proprietary assets, of the government. No person shall be penalized or obstructed from petitioning for redress against any government agency or executive official, or staff members of the legislative or judicial branches, for relief under contract, tort, injunction, or declaration, although it may require that monetary judgments require a special appropriation by the legislative branch. The financial responsibility of officials must be secured by adequate bond, and if public policy seeks to make officials personally immune, the government must assume financial liability for claims against them.  Require that upon demand by any person, through a petition for a writ of quo warranto, and before continuing with an enforcement action, any official prove his authority for the action, by an unbroken logical chain leading back to the applicable constitution. Reverse the presumption of authority.  Eliminate licensing of occupations, especially the practice of law. Establish that the practice of any occupation may be disabled only by order of a court of competent jurisdiction, on petition therefor and proof by a preponderance of evidence and verdict by nine of a jury of twelve, that if not disabled the right would likely be abused, or beyond a reasonable doubt that the defendant committed an offense for which a statute specifies disablement of the right as a punishment, by a unanimous verdict of a jury of twelve. Secret budgets and expenditures are prohibited by Art. I Sec. 9 Cl. 7, and are not to be permitted on grounds of “national security”. This includes any funds administered by public officials or government agents even if derived from other sources than taxes or fees. Forbid proprietary ownership or control of private organizations by government agents or agencies except temporarily for law enforcement investigations. Have the states cede territorial jurisdiction to Congress, in accordance with Art. I Sec. 8 Cl. 17, of airspace 300 meters or more above buildings or terrain features, so that federal air traffic control there can be constitutional; and of a strip of land 40 meters wide along any international border, for the enforcement of border entry. Require the boundaries between federal, state, and local jurisdictions be clearly marked so that anyone passing from one to the other will have proper notice thereof. All executive orders and regulations, being directives to those under the supervision of the executive, expire upon expiration of the term of service of the issuing executive, but may be deemed to remain in force for 30 days thereafter, to allow time for the successor to affirm or amend them    

  • MLK’s Constitutional Legacy
    by programs@constitutioncenter.org on January 24, 2019 at 20:34

    In honor of Martin Luther King Jr. Day, this episode celebrates King’s life and work, his hopeful vision for America, and his fight to pass landmark civil rights laws and realize the promises of the Constitution. Civil rights and constitutional law experts Michael Klarman of Harvard Law and Theodore M. Shaw of UNC Law join guest host Lana Ulrich to explore King’s constitutional legacy.  Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Is the Second Amendment a “Second Class Right”?
    by programs@constitutioncenter.org on January 17, 2019 at 18:21

    The Supreme Court has not decided a major Second Amendment case since McDonald v. Chicago in 2010, but the Court may break this silence soon if it decides to grant certiorari in Mance v. Whitaker – a challenge to a law prohibiting interstate handgun sales. In this episode, Cato’s Clark Neily, a leading Second Amendment litigator, and Adam Winkler, UCLA Law professor and noted Second Amendment scholar, join host Jeffrey Rosen to discuss Mance and other pending cases and debate whether courts have treated the Second Amendment as a “second class right.”  Questions or comments about the show? Email us at podcast@constitutioncenter.org

  • How to survive a solar proton flare
    by Jon Roland on January 16, 2019 at 15:48

    Solar proton flares appear to be fairly rare. The last ones to cause severe injury to life on Earth seem to have occurred 12,900 tears ago, producing what some call the Rancholabrean (or Labrean for short, for the La Brea tar pits) extinction, that wiped out most megafauna, such as mastodons, mammoths, and giant ground sloths (megatherium) from North America, Northern Europe, and northern Asia. It was not a complete, worldwide, extinction event. It is discussed in a companion article, Earth Changes .The focus in this article is how to survive another such event.The threat is from a solar flare that delivers intense proton radiation that breaks through the Earth’s magnetosphere. Most of the radiation would come almost straight down, and consist not only of protons but of secondary radiation such as neutrons and gamma radiation, both of which can penetrate several feet of shielding, with up to 3-10 sieverts of radiation. 3 are usually fatal. This is not like the radiation that would be produced in a nuclear war, which would include radiation from dust (fallout).There may be little or no warning, and such warning as might be issued might be only about an hour in advance. Flares can be seen by solar observatories in time to warn astronauts of a proton storm, but it does not appear that the Emergency Warning System is prepared for an event of this kind for the entire nation. If it came in the middle of the night, most people would probably die soon.Most modern homes will not provide enough shelter. You need to get under at least three feet of concrete, stone, or soil. The basement of a three-story office building might work, if the floors are concrete. A concrete bridge or drain pipe might work.Be on the lookout for shelters.Try to identify anything that might provide shelter near where you live, work, or travel regularly. You may not find much. If you get warning in time, you may have some time to look, but it is best to have already spotted some.Carry a radiation detector.There are some nice ones available, but the most practical is likely a radiation badge, that needs no power, and can be carried around at all times. One I like is the RAD Triage 50. It can be worn every day for two years, and one can keep a backup in a freezer for another ten years. One would use it to determine which locations have the most shelter.Keep a supply of water.You will probably need water for a week, Use the radiation detector to determine when it is safe to come out of the shelter. Might want to keep a LifeStraw Personal Water Filter for each person in your party.Keep a firearm.You may have to fight for use of a shelter. Even nice people can become dangerous when they think they are about to die.Get emergency power.A proton flare is likely to cause the same kind of damage as a coronal mass ejection or EMP attack. Even if the Shield Act  is passed and implemented, it will only protect the electric grid. Unshielded will be millions of other electronic devices, including phones, radios, and motor vehicles. You need to get photoelectric panels and emergency generators (assuming you can get fuel for them). Buildings with solar roof panels may become essential. Older vehicles that can be stripped of complicated electronics may be critical.Establish emergency communications.It is likely that most communication systems will fail, either as a direct result of the proton storm, or from the disablement of operators. The best alternative is likely to be ham radio transceivers. A good kind are portable handheld units or a GP-5 survival radio that can operate for a long time on batteries. You may also need portable Faraday bags and Faraday cages you can build to protect electronics from EMP, CMEs and proton radiation. You can also provide Faraday shielding for buildings but most of these won’t provide proton radiation shielding for people.Organize survivors.You will need to use a kind of triage system that separates those who don’t need help from those who are beyond help, with a middle group that can benefit from help, even it only buys them a few years before they succumb from cancer. Look for preppers and militia activists. Some of them imagine living in the wilderness for extended periods of time, but wildlife and livestock may also not survive, and small isolated groups are likely to be indefensible. Communities of a few thousand individuals are more likely to survive long enough to repopulate the country.The U.S. military has an extensive system of underground bunkers and tunnels, for themselves and a few senior officials, if they can get to them in time. When they come out they are likely to need the help of other survivors, and it is important to ally with them, and not become competitors.The first level of government to be established is local, counties or small towns. New law enforcement personnel may need to be elected and trained. Their priority may need to be to get supplies of food and medicine delivered from where they are produced to where they are needed.The proper legal basis for doing all this is the US. Constitution as originally understood.Notes:Vivos flare survival shelters

  • Can the President Declare a National Emergency to Build the Wall?
    by programs@constitutioncenter.org on January 10, 2019 at 21:48

    President Trump and congressional Democrats remain at an impasse over a White House proposal to fund the construction of a southern border wall. The president has said that if Congress decides not to appropriate the funds, then he will “probably” declare a national emergency to circumvent Congress and build the wall. On this episode of We the People, we ask: what would happen if the president decided to declare a national emergency and divert military funds to build the wall? What statutes could he rely on? And would such an action be constitutional? Host Jeffrey Rosen and constitutional law experts Mark Tushnet of Harvard Law and Sai Prakash of University of Virginia Law explore the constitutional clauses, cases, and laws at issue in this hotly contested debate, including the Take Care, Appropriations, and Takings Clauses of the Constitution, the Youngstown Sheet & Tube Co. v. Sawyer case, and the National Emergencies Act of 1976 and related statutes.   Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Best of 2018: ‘Madison, the Media, and the Mob’ Live at America’s Town Hall
    by programs@constitutioncenter.org on January 3, 2019 at 14:03

    Jeffrey Rosen hosts a live conversation at the National Constitution Center with leading journalists—Jeffrey Goldberg, editor in chief of The Atlantic; Michelle Goldberg, op-ed columnist for The New York Times; and Jonah Goldberg, senior editor of the National Review—discussing what James Madison might think of mainstream media today and the effects of social media on modern democracy and politics. The conversation explores everything from Twitter mobs and the threats posed by growing tribalism to Facebook’s proposed “Supreme Court” and the challenges presented by online content regulation. This event was presented in partnership with The Atlantic magazine and generously sponsored by the John S. Templeton Foundation as part of the NCC’s Madisonian Constitution for All Initiative. This episode originally aired on our companion podcast, Live at America’s Town Hall, where you can hear live constitutional conversations held here at the National Constitution Center and across America. Questions or comments? Email us at podcast@constitutioncenter.org.

  • Best of 2018: Doris Kearns Goodwin, Live at America’s Town Hall
    by programs@constitutioncenter.org on December 27, 2018 at 13:00

    Pulitzer-prize winning historian Doris Kearns Goodwin sits down with host Jeffrey Rosen at the National Constitution Center to discuss her new book, Leadership in Turbulent Times–a culmination of five decades of acclaimed study in presidential history. Goodwin compares the leadership styles of Abraham Lincoln, Theodore Roosevelt, Franklin Roosevelt, and Lyndon Johnson, sharing fascinating anecdotes and lessons from these legendary presidents, and offering hopeful advice about how to apply these lessons to solve some of the toughest constitutional issues of today.  This episode originally aired on our companion podcast, Live at America’s Town Hall, where you can hear live constitutional conversations held here at the National Constitution Center and across America.  Questions or comments? Email us at podcast@constitutioncenter.org.

  • 2018: A Constitutional Year in Review
    by programs@constitutioncenter.org on December 20, 2018 at 20:11

    This episode looks back at the biggest constitutional issues of 2018—from the recent ruling striking down Obamacare, to the Emoluments Clause lawsuits, the census case, the Mueller investigation, and more. Guests Emily Bazelon and Josh Blackman join host Jeffrey Rosen to give updates about where these constitutional questions stand and forecast where they’re headed next year. Questions or comments about the show? Email us at podcast@constitutioncenter.org.

  • Cohen, Trump, and Campaign Finance Law
    by programs@constitutioncenter.org on December 13, 2018 at 19:00

    President Trump’s former lawyer Michael Cohen was sentenced to three years in prison after pleading guilty to several crimes, including illegally making hush money payments to two women alleging affairs with then-candidate Trump. On this episode, campaign finance law experts Rick Hasen, a law professor at UC Irvine and co-editor of Election Law Journal, and Brad Smith, former chair of the FEC and founder of the Institute for Free Speech, debate the campaign finance laws at issue, explore precedents like the John Edwards case, and consider possible legal liability for President Trump. They also dive into other current election and campaign finance law issues, including the case involving Donald Trump Jr. Jeffrey Rosen hosts.

  • Is the Act Protecting the Special Counsel Unconstitutional?
    by programs@constitutioncenter.org on December 6, 2018 at 23:06

    This episode examines the constitutionality of the Special Counsel Independence and Integrity Act – bipartisan legislation that, if passed, would impose regulations on firing a Special Counsel (such as Robert Mueller). Although the bill is stalled for now, legal thinkers continue to offer a range of views on its constitutionality. Joining host Jeffrey Rosen to explore this debate are Josh Geltzer of Georgetown, arguing that the bill is not constitutional, and Eric Posner of University of Chicago, arguing that it is.   BONUS: Hear Senator Chris Coons (D-DE) – one of the co-sponsors of the act – discuss it with Jeffrey Rosen on a special bonus episode, recorded the same day that Senator Mike Lee (R-UT) voted to stall the bill on the Senate floor. 

  • LIVE AT AMERICA’S TOWN HALL: Senator Chris Coons (D-DE)
    by programs@constitutioncenter.org on December 6, 2018 at 20:45

    On this episode – originally published on our companion podcast, Live at America’s Town Hall – Senator Chris Coons (D-DE) breaks down the recent developments related to The Special Counsel Independence and Integrity Act, which he co-sponsored. (We explored the constitutionality of the act on this week’s episode of We the People.) Sen. Coons also shares his plans to make the Constitution a bigger part of the work of the Senate, and asks, what ever happened to Senate debates? He sits down with National Constitution Center President and CEO Jeffrey Rosen (his former Yale Law School classmate!). 

  • Where Aren’t They?
    by Jon Roland on December 2, 2018 at 19:25

    Where aren’t they?Enrico Fermi once conducted a thought experiment (gedankenexperiment) in which he found that even with only sublight travel technology, it should be possible for the first starfaring civilization able to build more starships at each stop to occupy every habitable niche in the galaxy in only a million years, which is a blink in galactic time. His question is, if this has happened, why aren’t we being visited every day by many of them? The obvious answer is that perhaps we are, but that we are just not seeing most of them.So perhaps the question to be answered is “Where aren’t they?” By this reasoning they should be everywhere. The Universe may a very crowded place. Forget the vision of the galaxy as a largely empty wilderness or frontier. It is more than likely to be filled, largely with beings having a common biological origin. I call them “exotribes”, or exos, to consider that they may not have a strong connection to a civilization, as such, except what they can carry with them.FTLThe most promising approach to FTL appears to be the Alcubierre-Froning drive. It would enclose the travelers inside a space-time bubble that would glide across a warp in space-time like a surfer on a wave. There would be no motion through space as such, but the bubble would move, which could be at a much higher transport rate (not ”speed”) than light through a vacuum. The bubble would protect occupants from debris and radiation, and would maintain gravity and the ship clock as of the point of departure. Transport termination is by collapsing the bubble. I call such vessels “jumpships”, and their drives “jumpdrives”. They need not use the Alcubierre-Froning technology.The great challenge is maneuvering thrusting. Hopes are to extract enough energy from the vacuum field, and there are efforts, the so-called “em” drive, has might approach this.Back in timeA jump is not just transport in space. It is also transport backward in time. Assume, for the sake of argument, that the transport rate is 100 times the speed of light, or 100c, and that the target is 50 light-years distant. That means that from the viewpoint of an outside observer the trip takes only six months. But when it arrives, it will find itself 50 years back in the past. How is that determined? Not by reference to the ship’s onboard clock, which maintains the time at the point of departure, but by reference to a “standard clock”, one of the most convenient of which is a neutron star, which are plentiful in the galaxy, and once created, spinning. They slow down at a more less fixed rate due to loss of mass and spin angular momentum by emitting gravity waves. By measuring the spin rate just before departure, then again after arrival., the travelers can get the amount time they have gone back, which would be 50 years in this example.When you look at the night sky, you are seeing objects not as they are now, but as they were hundreds, thousands, or perhaps billions of years ago. If you jump that distance, say, 50 light-years, you are also going back 50 years in time, from the perspective of where you left. That also means you cannot return to the time of your departure that way. To return 50 years you just have to wait for 50 years to pass, or engage in accelerative transport, which is hazardous without shielding. When a jumpdrive bubble forms, it captures the gravity/acceleration at its point of departure. When it arrives and the bubble collapses, the traveler is subject to the gravity/acceleration at the point of arrival. If points of departure and arrival are not chosen carefully, the traveler may find himself in crushing gravity, or flung off into deep space at a high speed. He may even find himself on a collision course with a massive object.For most voyages it may be unwise for jumpdrive users to venture far, usually not more than 200 light-years. The uncertainties of farther voyages may be too hazardous.Communications among outworlders is also a problem. If a jumpship traverses 50 light-years, it arrives 50 years in the past of its point of beginning, as seen by observing “clock” stars like rotating neutron stars, whose spin period slows at a steady rate. At that point, -50+δ, it can send a light signal, at the speed of light, back to its home, whose year is set at 0. Which arrives 50 years after the year at which it was sent, from what is now a new outpost. The light signal would arrive home at about 50+δyears at its home, where δ is the increment of time spent preparing the signal. From the standpoint of home, that is close enough to instantaneous. Only 50 years late. If the home then sends instructions, by jumpship, they arrive shortly after, -50+2δ, when the light signal was sent from the new outpost. Not instantaneous, but with more than a 50-year time gap. Not real-time.To view the future of some world, someone on, say, the homeworld, would have to traverse to some point, say 25 years in the future of the target world, and use telescopes to view the target world. The images could then be sent, say, to the homeworld, which could view the future of the target world from -50 years to – 25 years. Hose images could then be shared with other expeditions, including those to -50 year expeditions. They could see what would happen, but not in time to prevent anything.Each journey back in time makes some changes. Each of those changes creates a branch of the timeline, which I call a “diaverse”. Diaverses can be few and similar. They can be very different. They can also reconverge, in points that share different pasts and the same future. Too many jumps can create a plethora of conflicting timelines, that may sometimes need to be repaired to reduce the confusion. There may be exotribes that can move between diaverses, what I call interdiaversal transport. Perhaps making “repairs” to them.Creators?Some reported conversations with exos show they seemed to have reverence for what might be translated as “creators”, with no information what they might be.In our future it seems likely that some of us will genetically engineer some of the more promising Earth species, like bonobos, octopi, parrots, ravens, dolphins, or some reptilians like geckos to have human-level intelligence, then seed them on suitable planets we might find. Their descendants might now be visiting us, seeking their origins. This could explain why they don’t disclose themselves. Their creators may be us, and they may not want to disturb their own creation.Civilizations?People seem fond of imagining every exo ship is a voyage of discovery representing a “civilization” much like our own, a large society with many members, perhaps occupying many planets. There may be such societies, but it is unlikely any visiting ship “represents” any of them. Ships may originate that way, but it is likely they are long cut off from their origination world. They may carry their “culture” with them, but that can be done in holographic records, a small one of which could carry everything notable about them. They might try to send signals back to their origin, with no way to know if they had been received, or whether there was anyone to receive them. They would themselves be an outpost, a detached colony, that might stop at a suitable location, or proceed onward. If one stopped, it would likely be at a site with enough resources to sustain them until it was time to move on. The most likely such locations would be planemos, rocky planets with a hot core, not bound to any one star. Hey would burrow into it and extract energy from the core.That is why I call exo visitors “exotribes”, because they do not represent vast civilizations.‘Pileup in the pastIf each jump generates another (nested) diaverse, and the number of jumpers are always growing, it would seem that the diaverses would pile up at the center (origin) of the Universe, at which point one might expect them all to converge at once, and trigger another Big Bang. Instead of one Universe stemming from one Big Bang, There could be countless number of new universes being created every moment, each expanding toward infinity. Each new universe would clean the slate of diaverses, and begin generating many more. Exos, including us, may be continually driving the creation of new universes.1044New universes a second?The most plausible rate of creation of new universes would be one on each Planck unit of time, which is 5.39 × 10 −44 s. Rounding off, that would be about 1044 Big Bangs a second, since forever. Each Big Bang would start time for that universe, from the viewpoint of an observer inside it, which would tend to think there had only been one Big Bang, and there had been only one, from its standpoint. Each would expand into oblivion.SoulsWhen we search the stars of our galaxy, what are we looking for? Mostly Earth-like worlds with dry land masses, abundant fresh water, mild climates, moderate daily and seasonal weather changes, Earthlike gravity, fertile soil, and not too unfriendly natives. In other words, a frontier like that of North America in the 19thcentury. When we contemplate settling Mars we dream of terraforming it so we can walk around on its surface without protective suits. Leaving aside the unlikelihood of finding such a world, would we really want to settle its surface the way we settled North America? The answer is probably not. On Mars we plan building habitats under ground, protected from environmental hazards, with a life support system that does not depend on surface conditions. Should we plan to do anything else wherever we go? No.It is likely those are the same choices any visiting exos would have been making for a long time. Surface living is not that desirable, even if available. Surfaces might be pretty to look at, and local lifeforms might be interesting to study, but that is a matter of esthetics or curiosity, not economics, and it is likely exos would be making economic decisions.The persistent question concerning exos is what do they want from us or from our world? It is too easy to assume they are like us, with our ambitions and values. Apparently they are not. If they were we would have grounds to worry. Our treatment of other peoples on lands we visit has too often not been admirable. It can’t be energy or minerals, which are widely available at many places from which it can be more conveniently extracted. About the only thing that might be found here would be miniature black holes, but we have no evidence of their existence or their presence nearby.It seems unlikely that they would need our world for food, unless they enjoy the thrill of the hunt and the taste of fresh game. If they wanted our bodies, we would notice that. No, it seems more likely they would collect some essence of us, perhaps what we call “souls”. There has long been speculation concerning whether we, or some of us, carry a soul that could survive death. There are reports of remembering past lives, or of having “near death experiences.” But what could a “soul” be? Intelligence seems to be carried by the neural nets of the brain, perhaps enhanced by quantum entanglement, because intelligence seems to propagate genetically. But if the brain is the orchestra, perhaps performances of it can be preserved like sheet music, or a hologram of performances. This might be transferred from vessel to vessel as what the Vedics called akashik records. Can such records persist without a vessel, the way sheet music can? If so then perhaps what exos are collecting are records of memories, feelings, or characters we call souls. Clearly they are some kind of artifact. They might play them for entertainment, or use them as money to buy things they want. The noble souls of more spiritually advanced beings, might have a higher value. On the other hand, so might the sordid souls of evil beings. Evil can be more entertaining. Our tribe could certainly provide plenty of each.Exo conformityReports from alleged contactees indicate the behavior of exos is extremely regular, either because they are under tight control, or because their design prevents them from deviating from a norm. There are no criminals, no cheaters, no miscreants, no psychological deviants, no eccentrics. But also no comedians, no creative artists. They are much like social insects, which are generally siblings, acting in concert not under central control, but as emergent behavior of a swarm, responding to ques from nearby individuals, but not centrally directed. Such conformity can be a strength for an army, but not for individuals operating independently, or taking leadership roles not assigned by the group as a whole. For us diversity of talent is strength, for theirs perhaps a weakness.They seem to have more in common with social insects than with human Terrans.There is also a view that other civilizations will be millions or billions of years more advanced than our own, as though the rapid progress that has been made over the last century could be extended indefinitely. That is unlikely. Scientific and technological progress is like mining. There is only so much to find, and when it is, progress will not move far ahead, but settle on more accessible things, like biology or history. Such progress is an investment, made in the expectation of a return. That is also true of progress in individual intellectual development. We imagine exos to be superior to ourselves, in every way. In fact many humans today may be as intellectually gifted as any exo.So forget “Type I”, “Type II”, or “type III” civilizations. There probably are none. There may no return on that kind of investment. No Dyson spheres.In the movie Forbidden Planetthe inhabitants, the Krell, made a stupid mistake that a human college student would not make, of not testing a new technology before putting it into widespread use. (Humans sometimes make such mistakes, so it can’t all be blamed on one stupid civilization.)So the best of the exos may not be advanced far beyond the most advanced humans.This may also be the result of exo groups being so small. It may take many more before creative individuals or comedians become manifest.ThralldomOne of the most disturbing aspects of reports of contact with exos is the way they can control our minds, making us their puppets, for their purposes.For their purposes. Of what avail is the technology of starflight without the technology to resist mind control? Is there one master exotribe that rules them all? Or are some able to maintain their independence? We want to be one of those. Else it is all for naught.We also do not want humans to have the technology of mind control over other humans. Independence is for everyone.Do some exos see us as a threat, because of our warlike ways? Enough of a threat to resist our venturing into the galaxy? Those warlike ways can also be a force for liberation, which may be the greatest threat of all. Space ForceProposed by President Donald Trump to become a new service branch, alongside the Army, Navy, and Air Force.Mission, dominate Earth: Nuclear missiles (mow restricted by treaty), kinetic projectiles (not restricted), beam weapons, reconnaissance (Might adsorb National Reconnaissance Office).Mission: External threats: Asteroids and comets, exo invasion.Mission: R&D: Get supervision of advanced research, especially top secret special access projects TSSAPs) , gradually disclose results. SummaryThe issue of FTL taking travelers back in time has been addressed by theoreticians like Alcubierre, but none of them seem to have thought through the matter from the viewpoint of travelers.Notes: 1. Alcubierre-Froning drive. One way to move faster than light. “Diaverse”, from the Greek, diakládosis (διακλάδωσης) in which the prefix diaklád- emphasizes its branching structure. “Verse” comes the Latin “universum”, which is mixing linguistic roots. EM drive. And here. NASA testing this concept, based on extracting energy from the quantum vacuum. Also see TR-3B, speculated to be in service since the 1990s, using an electrogravitic drive. Kinetic bombardment. First proposed by science fiction writer Jerry Pournelle, and known by different names such as Project Thor, involves bombarding Earth with non-nuclear, non-steered ballistic projectiles about the size of a telephone pole, composed of a heavy material like tungsten, which on impact would produce about as much damage as a nuclear blast, but without the radiation or stigma of using “nukes”. It would be effective at destroying deep installations such as the Iranian nuclear base of Fordow, southeast of Tehran.The method, using meteorites, was used in a science fiction movie, This Island Earth, about bombardment of a planet, Metaluna, by a race called the Zagons. Defense was done with an “ionization layer”, until the projectiles broke through an incinerated Metaluna. Also in the movie was an example of a mutant slave who turned on its masters as destruction was imminent

  • Constitution of the United States of America
    by Constitution.com ???????? on December 2, 2018 at 11:47

    The following article, Constitution of the United States of America, was first published on The Constitution • Constitution.com. We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. Continue reading: Constitution of the United States of America …

  • Declaration of Independence
    by Constitution.com ???????? on December 1, 2018 at 12:49

    The following article, Declaration of Independence, was first published on The Constitution • Constitution.com. We hold these truths to be self-evident: 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. Continue reading: Declaration of Independence …

  • The Bill of Rights: Amendments 1-10 to the U.S. Constitution
    by Constitution.com ???????? on November 30, 2018 at 11:53

    The following article, The Bill of Rights: Amendments 1-10 to the U.S. Constitution, was first published on The Constitution • Constitution.com. Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances. Continue reading: The Bill of Rights: Amendments 1-10 to the U.S. Constitution …

  • The Bladensburg Peace Cross Case
    by programs@constitutioncenter.org on November 29, 2018 at 21:43

    This episode explores the Supreme Court case The American Legion v. American Humanist Association, which concerns a lawsuit over the possible demolition of a 40 foot tall cross that is part of a World War I memorial on public property in Maryland. Lawyers representing both sides —  Ken Klukowski and Monica Miller — explain the history of the cross at issue, debate whether or not it unconstitutionally promotes Christianity, and forecast the case’s potential impact on how the First Amendment’s Establishment Clause is interpreted. Jeffrey Rosen hosts.

  • Amendments 11-27 to the U.S. Constitution
    by Constitution.com ???????? on November 29, 2018 at 11:51

    The following article, Amendments 11-27 to the U.S. Constitution, was first published on The Constitution • Constitution.com. Neither slavery nor involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall exist within the United States, or any place subject to their jurisdiction. Continue reading: Amendments 11-27 to the U.S. Constitution …

  • Free Speech and Press Cases in the Courts
    by programs@constitutioncenter.org on November 21, 2018 at 17:00

    President Trump’s revocation of CNN White House correspondent Jim Acosta’s press pass and the ongoing lawsuit CNN v. Trump have brought issues relating to press freedom and due process under the Constitution back into the news. On this episode, David French, senior writer at National Review and Katie Fallow, senior attorney at the Knight First Amendment Institute at Columbia University, break down the latest developments in the CNN case as well as broader First Amendment issues in the courts today – exploring public forum doctrine, the legal battle over the president blocking users on Twitter, Facebook’s proposal to create its own “Supreme Court” to decide how to regulate content, and the potential effects of WikiLeaks editor Julian Assange’s prosecution for publishing classified information. Jeffrey Rosen hosts.

  • A Declaration by the Representatives of the United Colonies of North-America on July 6, 1775
    by Constitution.com ???????? on November 21, 2018 at 04:09

    The following article, A Declaration by the Representatives of the United Colonies of North-America on July 6, 1775, was first published on The Constitution • Constitution.com. With hearts fortified with these animating reflections, we most solemnly, before God and the world, declare, that, exerting the utmost energy of those powers, which our beneficent Creator hath graciously bestowed upon us, the arms we have been compelled by our enemies to assume, we will, in defiance of every hazard, with unabating firmness and perseverence, employ for the preservation of our liberties; being with one mind resolved to die freemen rather than to live slaves. Continue reading: A Declaration by the Representatives of the United Colonies of North-America on July 6, 1775 …

  • Earth changes?
    by Jon Roland on November 21, 2018 at 01:05

    The phrase “earth changes” is often used to refer to some kind of disastrous event that will adversely affect much if not most life on Earth, including human life. There is thought about preparing ourselves for it, but the phrase is vague about what it could be.CMEs, SPEsAmong the kinds of CMEs that can severely threaten much of the life on Earth are the coronal proton ejections (CPE) or Solar Proton Events (SPEs)  that have occurred several times in geologic history. One such event today could wipe out much of humanity and leave the Earth devastated. It could bring radiation, massive wildfires, and other destructive events.It differs in severity from coronal mass ejections like the Carrington event of 1859, Those are CMEs, but do not in general threaten life rather than power grids, which could be devastating enough in this modern age of dependence on electronic devices of all kinds. There are calls such as the Shield Act to harden electric grids against them.The main suspected SPE impacted the earth about 12,900 years ago. There may have two such events, 12,837 years BP and 12,639 years BP. They could have been a principal cause of the final termination of the Pleistocene megafauna and even of several genera of smaller mammals and birds. There is also evidence of one such event in 2012 that missed the Earth by only two weeks. One of the things that it does that could cause mass extinctions is to raise the level of proton (cosmic ray) bombardment to fatal levels. They are also suspected of causing massive, planet spanning wildfires.Grazing rogue planetsThere are interstellar objects that might make a grazing contact with the sun, We recently had one such object, Oumuamua, an odd-shaped body about ten times longer than it was wide, with other strange attributes. The general name for interstellar planets, not bound to a particular star, is rogue planet.. Most of them are expected to be round. They could be as large as other planets. The term generally applies to a rocky object, likely with a hot core, that could wander among the stars, and could provide a site for an outpost for star travelers, if the core is hot enough to geothermally support such an outpost.Notes:Did A Massive Solar Proton Event Fry The Earth?Solar flare nearly destroyed Earth 2 years ago: NASASun Could Unleash a ‘Superflare’ Hundreds of Thousands of Times More Powerful Than Any Known FlareIce Samples Reveal a Massive Sun Storm Hit Earth in Ancient Times…And It Could Happen AgainCoronal mass ejection — An event like the 1859 Carrington event could disrupt power grids.Shield Act — Would protect power grids from coronal mass ejections, and from EMP attacks, but not the rest of the electronic infrastructure on which our economy depends.Rogue planet — Planetary body not gravitationally bound to a star. Oumuamua — Odd-shaped interstellar object flys through solar system.Fastest Star in the Galaxy Has a Strange Origin — Moves about 26 million miles an hour. Solar Storm Threat Analysis, James A. Marusek, Impact, Bloomfield, Indiana 4742. also Solar Storm Disaster Preparedness PlanNearby Earth-like exoplanet Proxima b slammed by super flare that may have wiped out any possibility of alien life. Solar Flare Survival, Marc RemillardWhat Would Happen if a Massive Solar Storm Hit the Earth?Getting Ready for the Next Big Solar Storm, NASAMars Colonists Could Live in Lava Tubes Beneath the Surface  — Could fit entire cities into such tubes.Living Underground on Other Worlds  — We can see skylights of partially collapsed tubes.

  • The Stamp Act
    by Constitution.com ???????? on November 18, 2018 at 12:42

    The following article, The Stamp Act, was first published on The Constitution • Constitution.com. March 22, 1765 An act for granting and applying certain stamp duties, and other duties, in the British colonies and plantations in America, towards further defraying the expences of defending, protecting, and securing the same; and for amending such parts of the several acts of parliament relating to the trade and revenues of the said Continue reading: The Stamp Act …

  • The Attorney General, the President, and Congressional Oversight
    by programs@constitutioncenter.org on November 15, 2018 at 22:00

    After Attorney General Jeff Sessions resigned at the request of President Trump, the president appointed Sessions’ former chief of staff, Matthew Whitaker, to serve as acting attorney general, and a flurry of questions about the legality, constitutionality, and political repercussions of these developments ensued. Constitutional law scholar Steve Vladeck and political scientist Greg Weiner join host Jeffrey Rosen to think through those questions, including: Is Whitaker’s appointment constitutional? What are Congress’ powers to investigate or even subpoena the President or other executive branch officials over Sessions’ departure? How could the President respond? What will happen to Special Counsel Robert Mueller’s investigation? Is a constitutional crisis developing, or is this simply the Constitution at work? 

  • Does the Constitution Require Birthright Citizenship?
    by programs@constitutioncenter.org on November 8, 2018 at 16:36

    President Trump’s declaration that he could revoke birthright citizenship with an executive order has set off a firestorm of controversy among legal scholars. On this episode, Professors Akhil Amar and Edward Erler debate whether or not the 14th Amendment requires birthright citizenship for all, and dive into the disputed history and original meaning of the Constitution’s Citizenship Clause. Jeffrey Rosen moderates as Amar argues that birthright citizenship is constitutionally required, while Erler asserts that it is not, and that Congress has the power to change it—and should. Check out the Citizenship Clause of our Interactive Constitution: https://constitutioncenter.org/interactive-constitution/amendments/amendment-xiv/the-citizenship-clause-by-akhil-amar-and-john-harrison/clause/56 

  • Written Constitutions Better
    by Jon Roland on November 4, 2018 at 18:15

    Written constitutions betterFor forms of government let fools contest. That which is best administered is best.~ Alexander PopeThat seems to be the guiding constitutional doctrine in the few countries without written constitutions, most prominently the United Kingdom. Those who have viewed the British comedy series, Yes Minister, and Yes Prime Minister, should have gotten some insight into some of the problems with a government of a few elected officials, dominated by a professional civil service that never seems to change. The term “shadow government” was coined in the UK to refer to the “shadow” components of the civil service appointed by previous “governments” or ministers thereof, who continue to follow the policies of those tat appointed them, and often seem more accountable to thr now “shadow” ministers of the party that appointed them, if different from the party now nominally in power, who are expected to become their new bosses if that party comes to power. In the US, which uses the term “administration” for what are called “governments” in UK parlance, the term “deep state has come to be used for what is called “shadow government” in the UK. In the US “shadow government” refers to what is sometimes called the “military-industrial complex” and its “top secret special access projects” (TSSAP), funded  without accountability to Congress or the President.Veteran journalist Sarah McClendon once asked then president Bill Clinton about UFOs and aliens (what I call exos). He declined to answer, and replied, “Sarah, there is a government within the government, and I don’t control it.” That meant that the president himself did not have access to what government was doing about that subject.Then senator Barry Goldwater once asked then Gen. Curtis Lemay about the same thing, and was warned “Don’t ever ask me about that again.” That doesn’t mean Lemay was not “in the loop”. Perhaps only that he was afraid of those who were.During the Stalin era and through the time of Gorbachev the Soviet Union had a fairly good Constitution, by the standards of sound constitutional design, but the reality was something else. The Communist Party ruled. It controlled the first, NKVD, which became the KGB, which became the FSB.  It assigned a party agent to each government official, as the shadow official for that puppet official, who made all the important decisions. The Red Army was separate, but had its own shadow officials, and controlled the GRU, or military intelligence organization. Vladimir Putin is a former FSB official. The Soviet Union fell apart because the Party fell apart, and the Army fell apart, and refused to fire on civilian protesters (the only time in history when “flower power” actually worked). After that, the former FSB and GRU officials saw an opportunity to divide the spoils of the USSR and become rich oligarchs.If two such powerful nations are not constrained by their constitutions, then what use are constitutions? Actually, during much of this era the two nations were nearly in technical compliance with their own constitutions. The problem is that the framers of those constitutions did not anticipate how the spirit of their constitutions might be violated while complying with the letter of them.1.      The US Constitution does not provide that debt be budgeted, only spending. Agencies are limited in how much they can spend but not in how much debt they can generate. Any agency can create debt which the US government is obligated to pay, without limit. Now it would be possible in principle for a TSSAP to operate without generating debt, but it would still have to report zero, and thus to that extent reveal its existence.2.      The US Constitution needs to forbid Congress to make anything legal tender on state territory, or issuing debt instruments in payment of debts, anywhere. That means not to make debt instruments, like Federal Reserve notes. It already does, by not authorizing it. Only making legal tender by states is mentioned. Nor should agencies, like TSSAPs, get the Treasury to print more Federal Reserve notes for its use to exceed debt budget restrictions. The Constitution needs to forbid anything other than gold oir silver coins, or energy certificates, redeemable for some number of joules of energy, to be legal tender.3.      However, TSSAPs could also be funded by either trade, such as importing and selling addictive substances, as documented in the reports Dark Alliance, by Gary Webb, Day 1, Day 2, Day3, or by accepting donations from private parties or other nations. Some of what the US government does is to extort such donations.4.      Constitutionally excluding shadow officials from replacing “”constitutional” officials is a more difficult problem. Most constitutional officials are going to want advisers, and it is only a small step from being an adviser to being a decider. Frequent testimony by an official to a legislature can help, but it is not obvious how to constitutionalize that.5.       It needs to be made easier for outsiders, like grand juries, to investigate and expose official wrongdoing. Killing an outside investigator or a whistleblower needs to be treated as treason, with the death penalty.There are more reforms, but these will do for now.The UK is often said to have an “unwritten” constitution. That is not quite true. It is comprised of hundreds of documents, or fragments of documents, going back almost 1000 years, some written in an English that is incomprehensible to modern readers.We have books online that contain most of the important such documents:Select Documents of English Constitutional History, George Burton Adams and H. Morse Stephens (1904) — Collection of excerpts from the main documents that comprise the English “constitution”.Sources of English Constitutional History: 600-1937, Carl Stephenson & Frederick George Marcham (1937) — Collection of the documents that define the English “constitution”. The publisher of this second one asked us to take it down for copyright violation, which we did. A few years later, with no prompting from us, they asked us to put it back online. We we did, within a few minutes. For many years the only place where such documents could be found was on our website, hosted in the US. Nowhere in the UK. The last time we checked this was still true. To us this seems embarrassing, and may explain a great deal why Brits think that have no written constitution. They have what passes for one, but most of them don’t know where to find it.There have been attempts to draft a written constitution for the UK by several political science academics. No lawyers or lawmakers. They are pathetic, and haven’t gained much support. The problem with them is that they only attempt to codify most of existing practice. But the UK is a federal state, combining several countries under a single House of Commons that tries to function as a constitutional convention for a unitary republic, and it is not a unitary republic. Any well-written constitution of government needs to recognize that fact.They also try to constitutionalize the monarchy, as some other “constitutional monarchies” have tried to do. That doesn’t work. Monarchy and constitutional republican government don’t mix. It is the essence of monarchy to be unbound to any law or constitution. Now that does not mean the legislature can’t create a statutory office of monarch, appoint a member of the “royal” family, pay him or her a salary and expenses, require him or her to perform ceremonial functions, and tax him or her like any other citizen (not “subject”, loyalty is to the Constitution, not to the person of a “monarch”). People might think they have a monarchy, but it would only be for show. In any case, this can be done by statute and does not belong in a “constitution”. People might want to keep their monarch, but that is only to satisfy tradition.Another instructive effort was the attempt by some political leaders, most prominently Valery Giscard d’Estaing. It was put to a referendum in the counties of the European Union, and rejected by the voters of two of them, most notably, France. That killed the project. It is not a constitution. It is too long, and written like the party platform of a socialist party, full of handouts to various special interest groups and promises that could not possibly br kept, but largely devoid of the content that a true constitution needs to have, which is a tightly written list of powers, duties, and non-powers. The proposed EU constitution spoke of vague “competencies”, by which it presumably meant subject-matter jurisdictions, without defining the powers for such jurisdictions. The people of France deserve credit for making the wise decision to reject that atrocity.We have written what is initially billed as a “model constitution” for the US, as how it should have been written. We put the Bill of Rights, which we call Immunitates, in a separate document, which is made difficult to amend. It is binding on all levels and every branch of government, in every country.The final provisions of the Constitution are actually tailored for the UK, and it is ready of adoption by that country. With minor modifications, it could adapted to the European Union, and to any federal republic, like Germany, Switzerland, India, Mexico, Australia, Canada, or Brazil. With further modification it could be used by Israel. Note that selection of officials is not done by direct election, but by multistage process called fetura (Latin for breeding), which alternates random selection with merit selection. There is little scope for political parties in such a system, and people do not vote for parties, but for individuals, at the first level.The head of state is called a leiter, the head of government the executor, and the head of defense the protector. The three roles may be combined in the same individual. Each is required to consent to legislation from a bicameral diet.Judges, or richters, are appointed for life to a pool of richters, from which richters for particular courts and cases may be drawn at random. Richters are also selected by fetura.Could the people of the UK be led to support such a constitution? No way to know, but someone needs to lead such an effort.So is it better to have a written constitution? The lesson of history seems to be that it is. But constitutions or laws are not magic self-enforcing machines. Any of them can be subverted if enough people are determined to do so. The question is whether other people will have a standard by which they may oppose such subversion. How can anyone decide whether government is best administered? Ultimately it is a political decision, but good people need a standard in writing. Unwritten constitutions, like unwritten laws or contracts, aren’t worth the paper they are printed on.

  • Voting Rights, Election Law, and the Midterms
    by programs@constitutioncenter.org on November 1, 2018 at 14:52

    As Americans prepare to head to the polls next week, We the People partnered with Ballotpedia for a rundown of the election law and voting rights issues most relevant to the 2018 midterms. Ballotpedia’s News Editor Sarah Rosier joins election law scholars Franita Tolson and Michael Morley to break down all sides of the legal arguments surrounding voter ID laws, gerrymandering, “signature matching,” the purging of voter rolls, and felon disenfranchisement. Jeffrey Rosen hosts. 

  • Key Congressional Elections in History
    by programs@constitutioncenter.org on October 25, 2018 at 19:16

    With the 2018 midterm elections fast approaching, this episode delves into the history of congressional elections, from the Founding to today, answering the questions: What did the Founders expect that Congressional elections would look like? What did they look like throughout the 19th and 20th centuries? How did they lead to the political tribalism of the 21st century? And what can the most consequential congressional elections, the ones that realigned and redefined our nation, tell us about the upcoming election? Host Jeffrey Rosen is joined by two leading experts on Congress, its history, and congressional elections – Matthew Green of Catholic University and Thomas Mann of UC Berkeley and Brookings. 

  • Is There a Supreme Court Legitimacy Crisis?
    by programs@constitutioncenter.org on October 18, 2018 at 20:52

    In the aftermath of Justice Brett Kavanaugh’s confirmation, debates about the Supreme Court’s legitimacy remain in the public spotlight. Some believe that the Kavanaugh confirmation caused a legitimacy crisis that can only be solved by reform proposals such as court packing and term limits for justices, while others believe the Court has maintained its legitimacy and is still a neutral arbiter of the law. Is the Supreme Court really having a legitimacy crisis? Host Jeffrey Rosen discusses that question and the future of the Court with two constitutional scholars from opposing sides of the Kavanaugh debate – Professor Jennifer Mascott, who testified on Justice Kavanaugh’s behalf at his confirmation hearings, and Professor Melissa Murray, who testified against his nomination. 

  • Libel, the Media, and Constitutional Legitimacy
    by programs@constitutioncenter.org on October 11, 2018 at 13:32

    Cries of “defamation” came from the White House following the publication of in-depth reporting on President Donald Trump and his finances by The New York Times, but this is not the first time the president has expressed criticism of the press or U.S. libel laws. Adam Liptak of The New York Times and NYU Law Professor Richard Epstein join Jeffrey Rosen to explain what libel is and how laws against libel and slander fit within the First Amendment’s protections of free speech and the free press. Liptak and Epstein also debate media objectivity today and the effect of the heated coverage of the Kavanaugh confirmation battle on the legitimacy of our democratic institutions.

  • Senators Flake and Coons: The Future of the Senate and the Supreme Court
    by programs@constitutioncenter.org on October 4, 2018 at 16:25

    Senators Jeff Flake and Chris Coons join Jeffrey Rosen to discuss their important role in the Kavanaugh confirmation hearings, including their last-minute agreement to pause the nomination to allow for an FBI investigation of the allegations against Judge Brett Kavanaugh. They also share their hopes and fears for the future of the Senate and the Supreme Court, and how political tribalism today threatens the legitimacy of these American institutions.  This conversation, recorded live at The Atlantic Festival in Washington, D.C. earlier this week, was presented in partnership with The Atlantic and generously sponsored by the John Templeton Foundation and the William and Flora Hewlett Foundation. This episode was engineered by Greg Scheckler and David Stotz, and produced by Jackie McDermott and Scott Bomboy. Research was provided by Lana Ulrich and Jackie McDermott.

  • Supreme Court Term Preview
    by programs@constitutioncenter.org on September 27, 2018 at 18:12

    We take a deep dive into the upcoming Supreme Court term, set to begin Monday, October 1, and explore forthcoming cases that involve everything from double jeopardy and excessive fines to cemeteries and endangered frogs. Host Jeffrey Rosen is joined by Brianne Gorod of the Constitutional Accountability Center and Ilya Shapiro of the Cato Institute, who both filed amicus briefs in many of the cases discussed, and filed jointly in one of this term’s key cases, Gamble v. United States. 

  • Should Chevron Be Overturned?
    by programs@constitutioncenter.org on September 20, 2018 at 17:23

    This episode, recorded live in New York City at the Federal Bar Association’s 2018 annual convention, features a debate of the following question: “Should Chevron Be Overturned?” The 1984 Supreme Court decision Chevron v. Natural Resources Defense Council established a judicial doctrine of deference to certain administrative agency actions commonly known as “Chevron deference.” As wonky as it may sound, Chevron is implicated in important constitutional debates surrounding the modern administrative state and separation of powers. Columbia Law School professors Philip Hamburger and Gillian Metzger explain just what Chevron deference is, why it matters, and whether or not it should be overturned. Lana Ulrich guest hosts.

  • Kavanaugh Confirmation Hearings Recap
    by programs@constitutioncenter.org on September 13, 2018 at 11:51

    Nina Totenberg and Neal Katyal join host Jeffrey Rosen to unpack Judge Brett Kavanaugh’s confirmation hearings and evaluate his testimony. Totenberg and Katyal recap what we learned about Kavanaugh’s judicial philosophy and his views on everything from the role of precedent to presidential power, and forecast how Kavanaugh, if confirmed, might shape the Supreme Court in years to come. 

  • Disparate impact not a measure of disparate treatment
    by Jon Roland on September 12, 2018 at 22:21

    Are disparate outcomes always the result of discrimination against protected groups? Many on the left claim claim that, but are they factually correct? They seem to want to deny all evidence that discrimination is not a significant cause, and to attack anyone trying to present such evidence of differences in merit as “racist”, “sexist”, “homophobic”, or “xenophobic” to shame them into withdrawing their evidence. But do such attacks have any merit themselves? Are differences in hiring, lending, or congressional district drawing the result of “institutional racism” or whatever is the latest popular target for scorn?It is the thesis of this article that while there are cases of what might be called “institutional racism” at play, for the most part it is now almost insignificant, and attacks on it more often an attempt to deny selection for merit in ways the accuser doesn’t like or doesn’t want to accept.The touchy issue centers on IQ, used as an estimate of general intelligence g. Despite ages of attempts to measure it in an unbiased manner, too many measures appear which attempt to measure it that tend to agree, which tend to estimate the average IQ of white Americans as 100, of Black Americans as 85, of Hispanic Americans and Native Americans as 90-95, of Chinese, Japanese, and Korean Americans, and Scots, as 105. and Ashkenazi Jews as 115. Those numbers tend to predict the success of those groups in school and in the workplace.Those who attack those who make these points generally commit an error in logic and statistics, They try to cast them as asserting that everyone in one of these groups Has the average IQ of that group. They way to use the statistics is to compare the performance of persons of about the same IQ from any group. If those performances are about the same, and they are, then that can be taken as compelling evidence of the absence of discrimination of one group by another, contrary to the doctrine of some that there is pervasive systematic discrimination operating. The evidence is clear. There might be a little discrimination at work, and that is troublesome, but the amount is so little that it doesn’t make any difference to average performance. It may then be seen as not just the best predictor of performance, but the only one that matters. That is not the result that satisfies the narrative of “social justice warriors”.A perverse effect of such disparate outcome jurisprudence is that it tends to validate the proclivity of “social justice warriors” to find bigotry everywhere, even where none exists. That enables them to shame virtuous people into irrational, and ultimately harmful, behaviors.Notes:1. Disparate impact was established United States Supreme Court as Ricci v. DeStefano. At the heart of the Ricci case was the doctrine of disparate-impact discrimination, which the Supreme Court first articulated in its 1971 decision in Griggs v. Duke Power Company. At issue in Griggs was the requirement that employees hired into service jobs at the power company’s facilities had to possess a high-school diploma and achieve a minimum score on an IQ test. The plaintiffs argued that these rules disqualified too many black job applicants, thereby violating Title VII of the Civil Rights Act of 1964, which prohibits employment discrimination based on race, color, religion, sex, or national origin.The Supreme Court agreed, ruling that job criteria with an adverse or exclusionary effect on minorities — even if those criteria were “neutral on their face, and even neutral in terms of intent” — could violate the Title VII ban on race discrimination in hiring. The Court further stipulated that employers could escape liability for “disparate impact” only if they demonstrated that their adverse selection practices had “a manifest relationship to the employment in question” or that they were justified by “business necessity.”In the Ricci case, a 5-4 majority of the Court read the facts narrowly to conclude that New Haven’s civil-service exam was sufficiently related to the jobs in question to survive scrutiny and ultimately sided with the firefighters who had sued to have their scores reinstated.2. The Dead End of “Disparate Impact”, Amy L. Wax, National Affairs, Summer 2012″In the sphere of employment, the key questions are: “Why do some people compete more effectively than others for jobs and social rewards?” and “What can be done about it?” These questions are complicated and pressing, and the law of disparate impact does nothing to address them. It in fact only distracts us from finding urgently needed answers.”3.  Why Cognitive Inequality Matters, Stefan Molyneux. 4. Heterodox Academy. Challenge political correctness.

  • The History of Supreme Court Confirmation Hearings
    by programs@constitutioncenter.org on September 6, 2018 at 17:41

    In the midst of the contentious confirmation hearings of Judge Brett Kavanaugh, we explore the history of Supreme Court confirmation hearings and consider their constitutional implications. How did the Framers envision the Senate’s role in providing “advice and consent,” and how has it evolved over time? Guests: Lori Ringhand – professor at the University of Georgia School of Law and Adam J. White – research fellow at the Hoover Institution. This is the first episode in a two-part series covering the confirmation process. Join us next week for a post-hearing wrap-up.

  • What Constitutes an Impeachable Offense?
    by programs@constitutioncenter.org on August 30, 2018 at 19:03

    Last week’s guilty plea from Michael Cohen and the conviction of Paul Manafort prompted widespread debate over whether the president was implicated in criminal acts and if he should be impeached. Alan Dershowitz and Joshua Matz join host Jeffrey Rosen for a spirited debate on when and how the Framers intended for the impeachment power to be used. A transcript of the podcast is linked here. This text may not be in its final form and accuracy may vary, and it may be updated or revised in the future.

  • Robert Smalls: Escaping Slavery and Fighting Injustice
    by programs@constitutioncenter.org on August 24, 2018 at 17:42

    In the midst of the Civil War, Robert Smalls overtook a Confederate boat filled with 17 other enslaved people and steered it to freedom. This extraordinary act was the first of many, as Smalls went on to a groundbreaking career of activism and became one of the first African American men elected to Congress. We examine his remarkable life on this final episode of our special Stories of the Civil War and Reconstruction series. Guests: Kate Masur, associate professor of history at Northwestern University, and Michael B. Moore, CEO and president of the forthcoming International African American Museum in Charleston, South Carolina. Moore is the great-great-grandson of Robert Smalls.

  • Harriet Scott: The Woman Behind Dred Scott v. Sanford
    by programs@constitutioncenter.org on August 23, 2018 at 16:38

    This week, we uncover the life of Harriet Scott, the wife and co-plaintiff of Dred Scott in the infamous case Dred Scott v. Sanford. Although much is known about the case itself – in which the Supreme Court held that African Americans were not citizens of the United States – little attention has been devoted to the people who brought the case before the Court and lived with the devastating consequences.  Guests: Martha S. Jones – author and professor at Johns Hopkins University, and Lea VanderVelde – professor at Iowa College of Law and author of the definitive biography on Harriet Scott. Guest hosted by Lana Ulrich.

  • Callie House: Reparations Advocate and Trailblazer
    by programs@constitutioncenter.org on August 16, 2018 at 15:06

    This episode delves into the extraordinary life of reparations advocate Callie House, who tirelessly traveled the country organizing newly freed African Americans in the quest to right the wrongs of slavery. Despite her status as a former slave, a woman, and a widower with five children, House defied societal conventions and led one of the largest grassroots movements in African American history.  Guests: Mary Frances Berry – professor at the University of Pennsylvania and author of the definitive biography on House, and Tiffany Patterson – professor at Vanderbilt University. Hosted by Lana Ulrich.

  • John Bingham: Father of the 14th Amendment
    by programs@constitutioncenter.org on August 9, 2018 at 15:38

    John Bingham was one of the most influential but least known visionaries of the post-Civil War Constitution. Dubbed “the James Madison of the 14th Amendment” by Justice Hugo Black, Bingham drafted a constitutional provision that changed the course of American history by ensuring that states were duty-bound to uphold their citizens’ constitutional rights. A moderate Republican and dedicated supporter of abolition before the Civil War, Bingham spearheaded the Reconstruction-era efforts to guarantee citizenship to all people born in the United States, regardless of race, and to extend the Constitution’s promise of equality to all American citizens. Gerard Magliocca is the Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law and the author of the definitive biography of Bingham. Kurt Lash is the E. Claiborne Robins Distinguished Chair in Law at the University of Richmond School of Law and the author of the book The Fourteenth Amendment and the Privileges or Immunities of American Citizenship. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • The life and legacy of Frederick Douglass
    by programs@constitutioncenter.org on August 2, 2018 at 18:52

    On this debut episode of our special Stories of the Civil War and Reconstruction Series, we examine the life of one of America’s most influential abolitionists, orators, writers, and statesmen – Frederick Douglass. Growing up as an enslaved person in Maryland, Douglass set himself apart by learning to read and write at an early age. After escaping from slavery, Douglass moved to Massachusetts where he became involved with local anti-slavery groups and newspapers. Ardently advocating for abolition, Douglass toured the country with William Lloyd Garrison and spoke extensively about the relationship between the Constitution and slavery in America. David Blight is Class of 1954 Professor of American History at Yale University. An expert scholar on Frederick Douglass, Blight has written extensively on him. Blight’s newest book, Frederick Douglass: Prophet of Freedom, will be released on October 2. Blight also serves as Director of the Gilder Lehrman Center for the Study of Slavery, Resistance, and Abolition at Yale and previously taught at Amherst College for 13 years. Noelle Trent is director of interpretation, collections and education at the National Civil Rights Museum in Memphis, Tennessee. Trent earned her doctorate in American history at Howard University, where she also served as a lecturer for 4 years. Her dissertation, “Frederick Douglass and the Making of American Exceptionalism,” is currently being expanded into a book. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • What is Treason?
    by programs@constitutioncenter.org on July 26, 2018 at 17:05

    After his recent meeting with Russian president Vladimir Putin and comments about Russian interference in the 2016 elections, President Donald Trump has sparked a new controversy relating to the constitutional definition of treason, and to what extent actions taken in support of a foreign nation might constitute treason. Jeffrey Rosen leads a discussion about  the Treason Clause of the Constitution, what it means, and how it has been interpreted.  Paul Crane is an assistant professor of law at the University of Richmond Law School. Previously, he served as a Bigelow Fellow at the University of Chicago Law School. He has also worked as an Assistant United States Attorney in the District of Columbia, as a Bristow Fellow for the Office of the Solicitor General of the United States, and clerked for Chief Justice Roberts on the U.S. Supreme Court. Deborah Pearlstein is a professor of law at the Benjamin N. Cardozo School of Law at Yeshiva University. Previously, she served in the White House from 1993 to 1995 as a Senior Editor and Speechwriter for President Clinton, and served as the founding director of the Law and Security Program at Human Rights First, where she worked on military commission trials at Gitmo. Pearlstein also clerked for Justice John Paul Stevens of the U.S. Supreme Court. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • The New Supreme Court
    by programs@constitutioncenter.org on July 19, 2018 at 20:53

    Jeffrey Rosen leads a discussion about the nomination of Brett Kavanaugh, Justice Gorsuch’s first year on the Supreme Court, and what the future of the Court might look like. Brianne Gorod is the Constitutional Accountability Center’s chief counsel. She previously served as CAC’s Appellate Counsel. Elizabeth Slattery is a legal fellow and appellate advocacy program manager at the Meese Center for Legal and Judicial Studies and Institute for Constitutional Government at the Heritage Foundation. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • Happy 150th Birthday, 14th Amendment
    by programs@constitutioncenter.org on July 12, 2018 at 21:37

    Leading Civil War and Reconstruction scholars discuss the history and meaning of the 14th Amendment in celebration of its 150th anniversary. Allen Guelzo is the Henry R. Luce Professor of the Civil War Era, and Director of Civil War Era Studies at Gettysburg College. Martha Jones is Society of Black Alumni Presidential Professor and Professor of History at Johns Hopkins University. Kurt Lash is E. Claiborne Robins Distinguished Chair in Law and Founder and director of the Richmond Program on the American Constitution at Richmond School of Law. Darrell A.H. Miller is Melvin G. Shimm Professor of Law at Duke Law School. The host is Jeffrey Rosen. Sherrilyn Ifill, the seventh President and Director-Counsel of the NAACP Legal Defense and Educational Fund and Trustee of the National Constitution Center, provides introductory remarks. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • U.S. Supreme Court: Issues with current contenders
    by Jon Roland on July 10, 2018 at 17:31

    The four current contenders for the U.S. Supreme Court, including the nominee, Brett Cavanaugh, do present some constitution issues.Unenumerated rightsThe first issue is presented by the statement by nominee Brett  Cavanaugh in his acceptance speech, that he would not find rights not explicitly recognized in the main Constitution.. This has been an issue since the nomination of Robert Bork, who considered the Ninth Amendment, which calls for the nondisparagement of rights that are not “enumerated” (made explicit) somewhere in the Constitution, as amended, to be an “ink blot”.There is strong opposition to Supreme Court judges doing that, especially from so-called “conservatives”, who don’t understand that constitutional rights are all “immunities”, restrictions on the powers of government. They are not “privileges” to receive a sufficient amount of public resources, such as for education, healthcare, elder support, or any other objects of public subsidies.Interestingly, in the case of Roe v. Wade, the Fifth Circuit decided that a “right to an abortion” was a Ninth Amendment right of a woman  “to choose whether to have children”, which by the 14th Amendment, was “incorporated” for the states. This presented the Supreme Court with an apparent problem,  because there was opposition to funding unenumerated rights in the Senate. The Fifth Circuit found a Ninth Amendment “right  to choose whether to have children”. So the SC tried to sustain the Fifth Circuit without embracing the Ninth Amendment. The result was an incoherent opinion. There was no way to avoid the Ninth Amendment.It would perhaps too much to expect a nominee to venture into an extended discussion of what a “right” is, and what it is not. It is awkward to say “I will not find a ‘right’ to a sufficient amount of a public resource.” That is too complicated for most senators. So the candidate denies he will try to find any “unenumerated” rights. That is somewhat disingenuous, but the issue needs to be discussed.When “life” beginsOne of the potential nominees, Amy Barrett, has been reported to have stated that human “life” begins at conception. That is a misstatement of the issue in Roe v. Wade. which in its essence was not about “life” nut about “personhood” because “Rights (immunities)” attach to “persons”, (roles in court), not to “life”, despite what the Declaration of Independence says. (That is why some activists have sought to move the commencement of “personhood” back to conception. That would be a mistake. We cannot allow each state to redefine “personhood”, because if we did, a state could define some people to be nonpersons, without rights. So there has to be a uniform definition across all states if the protections of the Constitution are not to be meaningless. That is the basis for finding the right to be incorporated under the Ninth Amendment, as the Fifth Circuit did.So when does “life” begin?Not at conception. Each individual is the latest in an unbroken chain of life that goes back to at least the point when the first single-celled organism became a multi-celled animal, which occurred about 650 million years ago, during the pre-Cambrian era, when the surface of the Earth was covered with ice (“snowball Earth”) and there was only one continent, Rodinia. We are all descended from that multi-celled organism. That is when “life” began.So when does “personhood” begin?This was declared by the jurist Edward Coke in the 15th century, and later restated by legal scholar William Blackstone, in the early 18th century, who provided most of the definitions for terms used in the U.S. Constitution. They held that “personhood” begins at natural birth, or induced natural birth (they had Cesarean sections in those days). Some of the states later found that personhood began with baptism, entry of a name in church records, or even later. Not at “conception”, the date of which could not have been defined with any precision in those days, or even now.Consider what would happen if we defined “personhood” to begin at conception? It would make every fetus the ward of a court, with the court having power to supervise the pregnancy. It could order the woman to continue a pregnancy, and not terminate it, under penalty of law. That would be forced pregnancy. Do we want that? Every pregnant woman chained to a bed. Anyone see the play “A Handmaid’s Tale”. Good way to stop everyone from having sex.Need for uniformityIncorporation of a Ninth Amendment right is required by the need to have a uniform definition of “personhood” (legal role) across all jurisdiction, since constitutional rights attach to “persons” and not just to “citizens” or “life”.  If states could define personhood, they could deprive anyone of rights by defining him to be a “nonperson”. Thus a state could find that Blacks are not persons as a way to deprive them of their liberty.Thus a state could find that Blacks are not persons as a way to deprive them of their libertyNotes:1. Roe v. Wade, 1221 (N.D. Tex. 1970) (“On the merits, plaintiffs argue as their principal contention that the Texas Abortion Laws must be declared unconstitutional because they deprive single women and married couple of their rights secured by the Ninth Amendment to choose whether to have children. We agree.”).2. Roe v. Wade, 410 U.S. 113 (1973). 3, A Handmaid’s Tale, Margaret Atwood.4. Robert Bork and the Inkblot, Kurt Lash.5. Constitutional views on abortion

  • The Legacy of Justice Anthony Kennedy
    by programs@constitutioncenter.org on July 5, 2018 at 17:31

    John Elwood, Leah Litman, and Christopher Yoo, three of Anthony Kennedy’s former clerks, join We The People to discuss the Justice’s Supreme Court legacy. John Elwood is a partner at Vinson & Elkins law firm, teaches at the University of Virginia School of Law’s Supreme Court litigation clinic, and is a contributor to SCOTUSblog. He clerked for Justice Kennedy from 1996–1997. Leah Litman is assistant professor of law at the University of California, Irvine Law School. She is a guest host of the First Mondays Supreme Court podcast and blogs at the Take Care blog. She clerked for Justice Kennedy from 2011-2012. Christopher Yoo is John H. Chestnut Professor of Law, Communication, and Computer & Information Science; director, Center for Technology, Innovation & Competition at Penn Law School. He clerked for Justice Kennedy from 1997-1998. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • The Supreme Court now: Decisions, deciders and what’s next
    by programs@constitutioncenter.org on June 28, 2018 at 19:09

    Jeffrey Rosen, host of “We the People,” moderates a panel discussion at the Aspen Institute’s Ideas Festival about the Supreme Court’s momentous recent term. From same-sex wedding cakes to voting rights to gerrymandering to public unions, the latest term was full of news-making decisions, even when the Justices decided not to decide. Note: This event was held several hours before Justice Anthony Kennedy announced his retirement from the Court. Next week on “We the People,” former Kennedy clerks will be joining us to discuss Justice Kennedy’s legacy and the ways in which he shaped the Court. Emily Bazelon is a Lecturer in Law and Senior Research Scholar in Law at Yale Law School. She is also a staff writer at the New York Times Magazine Judge Nancy Gertner is a senior lecturer at Harvard Law School. In September of 2011, Judge Gertner retired from the federal bench.   Mimi Marziani is President of the Texas Civil Rights Project and she teaches at the University of Texas School of Law.   Ramesh Ponnuru is senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • The Golden State Killer and Genetic Privacy
    by programs@constitutioncenter.org on June 21, 2018 at 13:46

    Erin E. Murphy of New York University Law School and Andrea Roth of University of California Berkeley School of Law discuss the Golden State killer case and the future of genetic privacy with host Jeffrey Rosen. This past April, California police announced they had a suspect for the “Golden State Killer” – 72-year-old Joseph James DeAngelo. Using genetic data from old crime scene samples, police uploaded his information into a genealogy website, GEDmatch, enabling them to identify DeAngelo’s relatives, and eventually narrow the pool down to find DeAngelo. This case – along with others that have followed – has raised privacy concerns, leading many to wonder what the future for genetic privacy is under the Fourth Amendment. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • Jeffrey Rosen Answers Questions about Self-Pardons, the Fourth Amendment, and James Madison
    by programs@constitutioncenter.org on June 14, 2018 at 10:42

    In this episode, We the People host Jeff Rosen answers constitutional questions that you, our listeners, have been asking. We’ve been collecting your questions over the past few months from social media, our weekly newsletter, Constitution Weekly, and email. Among the topics: the limits of presidential pardons, james Madison’s views about political factions, and new Court guidance about automobile searches. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • The Supreme Court’s current term
    by programs@constitutioncenter.org on June 7, 2018 at 16:04

    Michael Dorf from the Cornell University Law School and Ilya Shapiro from the Cato Institute join Jeffrey Rosen to discuss some major cases already decided in the Supreme Court’s current term and others expected from the Justices in the next few weeks. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • Ken Burns: Telling Constitutional Stories
    by programs@constitutioncenter.org on May 31, 2018 at 10:55

    Today we are joined by Ken Burns, renowned American filmmaker and documentarian, to discuss the history of the Civil War, Reconstruction, and the legacy of the 14th Amendment.  Ken Burns is prolific: His widely known documentary series include The Civil War (1990), Baseball (1994), Jazz (2001), The War (2007), The National Parks: America’s Best Idea (2009), Prohibition (2011), The Roosevelts (2014), and The Vietnam War (2017). He’s won 15 Emmy Awards, been nominated for two Academy Awards, and has been featured on PBS numerous times. His 11-hour magnum opus, The Civil War, has won over 40 major awards. This year being the 150th Anniversary of the 14th Amendment, there is no better figure to speak to on its enduring legacy than Ken. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • George Will on Madisonian Government
    by programs@constitutioncenter.org on May 24, 2018 at 19:05

    This week, during a symposium held at the National Constitution Center, We the People host Jeffrey Rosen sat down with George Will, Pulitzer-prize winning columnist for The Washington Post, to discuss federalism, the 17th Amendment, and the state of American politics today. This America’s Town Hall program was made possible through the generosity of John Agliolaro. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The National Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • The Iran nuclear deal under Trump
    by programs@constitutioncenter.org on May 17, 2018 at 17:57

    On May 8, President Trump announced that the United States would withdraw from the Iranian nuclear deal, calling the deal “horrible,” “one-sided” and “the worst deal ever.” The president said he planned to institute sanctions against Iran, and that the U.S. would also sanction any other nation that helps it pursue nuclear weapons, as well as U.S. and foreign companies and banks that continue to do business with Iran. The Iran Deal was one of President Obama’s major foreign policy achievements, which had re-opened diplomatic negotiations between the two countries; yet the deal also had its critics, both of its merits and its constitutionality. Joining us to discuss the complex history of Iran-U.S. relations, President Trump’s withdrawal from the Iran Deal, and any constitutional issues implicated as a result are two leading national security and constitutional experts.   Jamil Jaffer is the founder of National Security Institute and an Adjunct Professor of Law and Director of the National Security Law & Policy Program at the Antonin Scalia Law School at George Mason University.   Jake Sullivan is a Martin R. Flug Visiting Lecturer in Law at Yale Law School. He served in the Obama administration as a national security and served as the key architect of the Iran Nuclear Deal. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Social Media and Digital Disinformation
    by programs@constitutioncenter.org on May 11, 2018 at 15:22

    On May 3, the National Constitution Center hosted a traveling America’s Town Hall panel at Stanford Law School to discuss the effects of digital disinformation on democracy today. We the People host Jeffrey Rosen was joined by Elliot Schrage, Facebook’s Vice President of Communications and Public Policy, Nick Pickles, Senior Public Policy Strategist at Twitter, Juniper Downs, Global Head of Public Policy and Government Relations at YouTube,  as well as Nathaniel Persily of Stanford Law School and Larry Kramer President of the Hewlett Foundation. They discuss whether digital disinformation poses a threat, what its effect on speech, democracy, and government regulation might be, and the role of the Internet and social media in combatting disinformation. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Eric Holder on the 14th Amendment today
    by programs@constitutioncenter.org on May 3, 2018 at 16:30

    This year marks the 150th anniversary of the 14th Amendment, which was ratified on July 9, 1868. Last week, the National Constitution Center and the Thurgood Marshall Institute at the NAACP Legal Defense and Educational Fund co-hosted a daylong symposium commemorating this important anniversary. In this We the People episode, former Attorney General Eric H. Holder Jr., discusses the importance of the 14th Amendment today during the symposium’s keynote conversation. He is joined by Sherilynn Ifill, President and Director-Counsel of LDF, and We the People host Jeffrey Rosen. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Collusion?
    by Jon Roland on April 29, 2018 at 22:24

    The word “collusion” is much in use today, not because it is a crime (it is not), but because it sounds sinister. It has generally been used in attempts to investigate whether Trump colluded with Russia in a way that would be grounds for inpeachment and removal of Trump from office. That would not put Hillary Clinton in that office. It would put Mike Pence there, and Trump would undoubtedly continue to rule by telling Pence what to do, in much the way the Communist Party ruled the Soviet Union before it fell, by having a party official for every government official, telling him what to do. Or like Putin continued to rule Russia while Medvedev served in that office. Impeach Pence. Being guided by a shadow government is also not an impeachable offense, or every president since 1913 would be in violation. Remove Pence and the presidency just passes to the Speaker of the House. Sorry Hillary, but none of these things leads to a do-over of the 2016 election. Not before 2020.So what is the reasoning of Hillary supporters? It seems to go like this:1. An excellent candidate like Hillary Clinton could not possibly have lost an honest election.2. Therefore, the vote count had to have been hacked. But who has the means to do that? Only Russia. Perhaps.3. Would Russia have wanted to elect Trump? Not without a strong inducement. Perhaps the return of Alaska, or help in regaining control of Eastern Europe. Would anyone, even Trump, have had the means to offer such an inducement? Not really. No US. president has such power. Not even paying off enough Russian oligarchs would likely be enough. (Give them all our Uranium? That’s already been done. By Trump’s opponent.)Early in this controversy some of the intelligence agencies, led by the CIA, reported that the 2016 presidential election had been :hacked”, but not in ways that changed any election outcomes. This was an irresponsible report to make, because most computer=naive people will seize on that word to conclude that election outcomes were flipped. The use of that word has fueled the entire “Russia hacked our elections” narrative. It should be noted that those people have not sought to make vote-counting systems more difficult to hack, but to attack the suspected beneficiary of such a hack and to try to overturn the results of the 2016 election. It seems they don’t care about flipping elections in favor of Democrats. Only in favor of Republicans.2016 election outcomes were not flipped.There are too many different kinds of voting machines in too many voting precincts in more than 3000 counties. There are no centralized vote counting machines, although there are machines that add the number of votes from each precinct. But a simple recount can reveal if there are any discrepancies. Much has been made about voting machines being hackable, but there are too many voting machines of different makes and models. Hacking an election remains a potential threat, but the solution remains voter verifiable paper ballots, such as those used in Brazil. Absentee ballots are a greater path to corruption. The greatest threat is still trucking in millions of illegal entrants and inducing local voting officials to accept them. That can only be done in a few areas, however. Requiring state-issued voter photo ID is the best way to prevent that, although it has to be made easy to get them.This point is well -made in an article in Fortune, 5 Reasons Why Hackers Can’t Rig the U.S. Election, by Jeff John Roberts, August 9, 2016.What should have been done 1. The special prosecutor, Robert Mueller, should never have been charged to find “collusion” between the Trump campaign and Russia without specifying a reasonable deadline for reporting his findings.2. He should have been charged to find only successful “collusion” to change the results of the 9016 election, not “collusion” of any kind.3. He should have charged only with the above, not with finding violations of other statutes, especially 18 USC 1001 (which is arguably unconstitutional as usually applied). Only seek indictment of perjury under oath.

  • The Supreme Court considers the travel ban case
    by programs@constitutioncenter.org on April 26, 2018 at 17:32

    On Wednesday, April 25, the Supreme Court heard oral arguments in one of the biggest cases of the year: Trump v. Hawaii, the challenge to the latest iteration of President Donald Trump’s efforts to restrict travel to the United States by nationals from certain countries. The federal government contends that a ruling for the challengers would “hamstring” the president’s ability to conduct foreign relations and protect the national security; the challengers counter that allowing the so-called “travel ban” to stand will not only preclude over 150 million people, overwhelmingly Muslim, from coming to the United States, but it will also consolidate “breathtakingly vast” power in the executive branch. Josh Blackman is an Associate Professor of Law at the South Texas College of Law Houston. He blogs at JoshBlackman.com and has written dozens of blog posts, editorials, and articles on the Trump v. Hawaii case. Joshua Matz is of counsel at Gupta Wessler PLLC and Kaplan & Company LLP. He is the publisher of the Take Care blog. He filed an amicus brief (with Robbie Kaplan) on behalf of constitutional law scholars in Trump v. Hawaii, on behalf of the respondents. Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”  Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Facebook and the Future of Democracy
    by programs@constitutioncenter.org on April 19, 2018 at 15:01

    Jeffrey Rosen discusses the recent Facebook hearingsand the broader impact of social media on free speech and democracy with Nate Persily of Stanford Law and Kate Klonick of Yale Law School. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Justice Breyer on the First Amendment
    by programs@constitutioncenter.org on April 12, 2018 at 16:46

    Our president and CEO, Jeffrey Rosen sits down with Supreme Court Justice Stephen Breyer at the Edward M. Kennedy Institute in Boston. They discuss the First Amendment, hate speech, the Citizens United decision, and other free speech cases. Stephen G. Breyer  is an Associate Justice of the Supreme Court of the United States. Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.”  Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • President Trump and the Federal Judiciary
    by programs@constitutioncenter.org on April 5, 2018 at 18:33

    When President Donald Trump took office last year, there were over 100 federal court vacancies, roughly twice as many as when President Barack Obama faced the same situation in 2009. Since then, President Trump has been nominating judges and having nominees confirmed at “record speed,” leading many senators from both sides of the aisle—from Senator Ted Cruz to Senator Chris Coons—to  assert that the most long-lasting and significant legacy to the Trump administration “will be the men and women appointed and confirmed to the federal bench.”  This topic and others were part of the Federal Bar Association’s annual mid-year meeting in Washington, D.C. John Malcolm is Vice President of the Institute for Constitutional Government and Director of the Meese Center for Legal & Judicial Studies and Senior Legal Fellow at the Heritage Foundation, where he oversees the Heritage Foundation’s work to increase understanding of the Constitution and the rule of law. Elizabeth Wydra  is President of the Constitutional Accountability Center. From 2008-2016, she served as the CAC’s Chief Counsel, representing the Center as well as constitutional scholars and historians, state and local government organizations, and groups such as the League of Women Voters and the AARP. Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” He is also a professor at The George Washington University Law School, and a contributing editor for The Atlantic.  Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • Hamilton: The Constitutional clashes that shaped a nation
    by programs@constitutioncenter.org on March 29, 2018 at 14:55

    This week, the National Constitution Center celebrates the March 2018 opening of its new exhibit, Hamilton: The Constitutional Clashes That Shaped a Nation. This compelling new exhibit highlights the competing ideas of Alexander Hamilton and his legendary rivals, including Madison, Jefferson, Adams, and Burr, and the personalities and constitutional debates that shaped America. The exhibit also provides an intimate look into Hamilton’s enduring role in the constitutional and political arguments that continue to create sparks to this day. Joining us to discuss the debut of this fascinating new exhibit and the life and constitutional legacy of Alexander Hamilton are two of America’s leading scholars of Hamilton and the Founding. Jay Cost is a political historian and journalist and a contributing editor at The Weekly Standard and a contributor to the National Review. He is the author of the new book The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy. Nancy Isenberg is an American historian, and T. Harry Williams Professor of history at Louisiana State University. She is the author of Fallen Founder: The Life of Aaron Burr, and co-author (with Andrew Burstein) of a dual biography of Madison and Jefferson. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • William Howard Taft and the Constitution
    by programs@constitutioncenter.org on March 22, 2018 at 21:52

    In his new book for The American Presidents Series, the National Constitution Center’s President and CEO Jeffrey Rosen argues that William Howard Taft was our most judicial president and presidential Chief Justice, and explores Taft’s crucial role in shaping how America balances populism with the rule of law. In this exclusive book launch held at the Constitution Center on March 20, Mr. Rosen was interviewed by Judge Douglas Ginsburg of the U.S Court of Appeals for the D.C. Circuit, who calls Taft “the most under-appreciated constitutional figure since George Mason.” 

  • Trump, Tariffs, and Trade
    by programs@constitutioncenter.org on March 15, 2018 at 18:46

    Over the past few months, President Trump has announced new tariffs on imported goods from solar panels and washing machines to steel and aluminum. He has also taken swift executive action to block international mergers that he has deemed harmful to U.S. interests from occurring, and has even said he would consider withdrawing from NAFTA and related trade agreements. President Trump’s protectionist policies are a reversal of mostly free-trade orientated policies of past administrations, and his actions raise important constitutional questions about the extent of executive power over trade policy, separation of powers and the non-delegation doctrine, as well as the future of U.S. and global trade. Timothy Meyer is a Professor of Law at Vanderbilt Law School. He is an expert in public international law, with an emphasis on international economic and energy law. He previously worked as a Legal Advisor for the Department of State, and clerked for now-Justice Neil Gorsuch while he was on the 10th Circuit. Steve Charnovitz is Associate Professor of Law at George Washington University Law School. He is a member of both the Council on Foreign Relations and the American Law Institute, and the author of many publications including The Path of World Trade Law in the 21st Century. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Workplace discrimination based on sexual orientation
    by programs@constitutioncenter.org on March 8, 2018 at 16:09

    Can an employment lawsuit be based on the premise that discrimination based on sexual orientation is a Title VII violation under the Civil Rights Act of 1964? On Feb. 26, 2018, the Second Circuit Court of Appeals said in a 10-3 decision in Zarda v. Altitude Express Inc. that sexual orientation discrimination constitutes a form of discrimination “because of . . . sex,” in violation of Title VII. Some legal experts have predicted that the case might eventually make its way to the Supreme Court. Last April, the Seventh Circuit ruled in a separate case that Title VII could be applied to a similar workplace situation. But the Supreme Court passed on a third case, out of Georgia, that dealt with the same issue. Joining us on this podcast are two experts with different takes on this question.                John Eastman is Henry Salvatori Professor of Law and Community Service and Former Dean at Chapman University Law School. He is also the Director of the University’s Center for Constitutional Jurisprudence. Suzanne Goldberg is Herbert and Doris Wechsler Clinical Professor of Law at Columbia Law School, where she also directs the Law School’s Center for Gender and Sexuality Law and its Sexuality and Gender Law Clinic. National Constitution Center president and CEO Jeffrey Rosen moderates the discussion. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • The United States v. Microsoft
    by programs@constitutioncenter.org on March 1, 2018 at 16:52

    Can the federal government compel a U.S.-based email provider to turn over its records as part of a criminal investigation when those records are located outside of the country? The United States v. Microsoft case pending before the Supreme Court could have big implications for law enforcement, consumer privacy and the business operations of many companies that do business overseas. The Microsoft case deals with a specific question: If a U.S. provider of email services must comply with a probable-cause-based warrant (issued under 18 U.S.C. § 2703) by disclosing in the United States electronic communications within that provider’s control, even if the provider has decided to store that material abroad. Joining us to discuss these important issues are two leading experts on the case. Benjamin Battles is the solicitor general of Vermont, which filed an amicus brief with 34 other states and the commonwealth of Puerto Rico in support of the federal government in United States v. Microsoft. Vivek Krishnamurthy is a Clinical Instructor in Harvard Law School’s Cyberlaw Clinic. He specializes in the international aspects of internet governance and on the human rights challenges associated with offering new internet-based services in different legal environments around the world. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • Mandatory union fees and the First Amendment
    by programs@constitutioncenter.org on February 22, 2018 at 15:09

    Alicia Hickok and Eugene Volokh join National Constitution Center President and CEO Jeffrey Rosen to discuss a major Supreme Court case about public-union dues. The Supreme Court is considering arguments in a case that could have a huge effect on public-section unions and their membership. The case of Janus v. American Federation of State, County, and Municipal Employees (AFSCME) will be heard on February 26 at the Court. The question in front of the nine Justices is if public-sector “agency shop” arrangements — payments that workers represented by a union must pay even if they are not dues-paying members — should be invalidated under the First Amendment. The Supreme Court said in Abood v. Detroit Board of Education (1977) that government employees who don’t belong to a union can be required to pay for union contract negotiating costs that benefit to all public employees, including non-union members. The Abood decision has been challenged in court several times, and an evenly divided Court couldn’t decide a similar case, Friedrichs v. California Teachers Association, in 2016.  This time, a full Court will consider the issue. Alicia Hickok is a Partner at the law firm Drinker Biddle and a Lecturer in law at the University of Pennsylvania Law School. She wrote an amicus brief in the Janus case on behalf of the Rutherford Institute, siding with Janus’s position. Eugene Volokh is Gary T. Schwartz Distinguished Professor of Law at UCLA Law School. He co-wrote an amicus brief in Janus with Will Baude siding with the union. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • A conversation with Justice Ruth Bader Ginsburg
    by programs@constitutioncenter.org on February 15, 2018 at 19:40

    Justice Ruth Bader Ginsburg joins National Constitution Center President and CEO Jeffrey Rosen for a wide-ranging conversation in celebration of the 25th anniversary of her appointment to the U.S. Supreme Court. In the 75-minute interview, Justice Ginsburg talks about the #MeToo movement, confessed her affection for Millennials, discussed the Supreme Court cases she’d like to see overturned, and told some personal stories about the progress women’s rights have made—while reminding the audience of just how recently gender discrimination in American law seemed not only normal but entrenched. The event took place in Philadelphia on February 12, 2018, in partnership with the University of Pennsylvania Law School as the Owen J. Roberts Memorial Lecture in Constitutional Law.

  • Jeffrey Rosen answers your constitutional questions
    by programs@constitutioncenter.org on February 7, 2018 at 18:32

    In this episode, we’re answering questions that you, our listeners, have been asking about the Constitution, with the National Constitution Center president and CEO Jeffrey Rosen. We’ve been collecting your questions over the past few months from social media, our weekly newsletter Constitution Weekly, and email. For starters, here were some of the questions discussed in this podcast: Why is the Ninth Amendment so important to understanding the Constitution? What are the unenumerated rights provided for in the Constitution and what were the big arguments about them in the past 100 years? What is the basis for the idea of the separation of church and state as understood by the Founders? And what are the theories of interpreting the Constitution that most apply to you? Jeffrey Rosen is president and CEO of the National Constitution Center, moderates the discussion. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • History of Impeachment: From Andrew Johnson to Today
    by programs@constitutioncenter.org on February 1, 2018 at 15:24

    In anticipation of the 150th anniversary of the impeachment of President Andrew Johnson, on Feb. 24, we look at the history of presidential impeachments, the interpretation of the Impeachment Clause, and the application to current day controversies. Joining us to discuss this important historical episode are two of America’s leading scholars on the impeachment of President Andrew Johnson. Keith Whittington is the William Nelson Cromwell Professor of Politics at Princeton University. He co-wrote the IC explainers on the Impeachment Clause with Neil Kinkopf. David O Stewart is a writer, historian, and former appellate lawyer. He is the author of many books including Impeached: The Trial of President Andrew Johnson and the Fight for Lincoln’s Legacy. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates the discussion. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE.

  • The Constitution in Year One of the Trump administration
    by programs@constitutioncenter.org on January 25, 2018 at 21:16

    On January 20, 2017, President Donald Trump was inaugurated as the 45th President of the United States. In the year since he took office, a variety of novel constitutional issues have arisen, from the interpretation of the Emoluments Clauses, to the constitutionality of Executive Orders on immigration, and even the meaning of the Twenty-Fifth Amendment. In this episode, we look at the past year of the Trump presidency and what it means for our Constitution. Joining us to discuss the past year of constitutional debates are two of America’s leading scholars of constitutional law. Josh Blackman is an Associate Professor of Law at the South Texas College of Law in Houston who specializes in constitutional law, the United States Supreme Court, and the intersection of law and technology. He filed an amicus brief in the CREW v. Trump and DC and Maryland v. Trump lawsuits on behalf of another legal scholar, Seth Barrett Tillman. Lisa Manheim is an associate professor of law at the University of Washington School of Law and co-author of a recently published book, intended for lawyers and non-lawyers alike, called The Limits of Presidential Power: A Citizen’s Guide to the Law. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey The Constitution Center is offering CLE credits for select America’s Town Hall programs! Get more information at constitutioncenter.org/CLE. 

  • Federalism under President Trump
    by programs@constitutioncenter.org on January 18, 2018 at 23:32

    The relationship between the federal  government and the states is currently at the center of controversies about sports gambling, marijuana use and sanctuary cities policies. In the past year, these and related issues have come before federal courts, including the Supreme Court. In December 2017, the Supreme Court heard oral arguments in Christie v. NCAA, a case that examines whether a federal law that prohibits the modification or repeal of state gambling laws violates the Tenth Amendment and the anti-commandeering doctrine that bars the federal government from imposing certain costs on local government. The anti-commandeering doctrine is also at the heart of several federal lawsuits about the legal status of sanctuary cities. And Attorney General Jeff Sessions’ decision to reverse marijuana prosecution guidelines for federal attorneys in states with legal recreational marijuana has broad potential constitutional implications. Joining Jeffrey Rosen, president and CEO of the National Constitution Center, to discuss these questions are two leading national constitutional experts. Michael Dorf is Robert S. Stevens Professor of Law at Cornell Law School. Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey

  • Undocumented teens and abortion
    by programs@constitutioncenter.org on January 11, 2018 at 16:28

    This week, we look at the case Hargan v. Garza, a lawsuit filed by the ACLU on behalf of undocumented immigrantthat asks if the federal government can deny access to an abortion for pregnant undocumented teens. As of January 11, 2018, the Supreme Court was considering the case in private conference. Joining us to discuss this important question are two of America’s leading experts on constitutional and family law. Catherine Glenn Foster is President and CEO of Americans United for Life. She served as Counsel of Record for amicus curiae Alliance Defending Freedom’s Amicus Brief in Planned Parenthood v. Abbott, which defended Texas’ healthcare regulations around abortion clinics. Leah Litman is Assistant Professor of Law at the University of California, Irvine School of Law. She co-authored Petitioner’s Brief in Whole Women’s Health v. Hellerstedt case, which successfully challenged Texas’ healthcare regulations around abortion clinics. Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” He is also a professor at The George Washington University Law School, and a contributing editor for The Atlantic.  Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org And don’t forget to take our new podcast survey at constitutioncenter.org/survey

  • Gerrymandering and American democracy
    by programs@constitutioncenter.org on January 4, 2018 at 11:29

    In the Gill case this year, the Supreme Court might determine the constitutional future of partisan gerrymandering. Scholars and advocates have been discussing the arguments at the heart of the case – as well as those involved in related cases heading toward the Supreme Court. At a December event at the National Constitution Center, Caroline Fredrickson, president of the American Constitution Society, Nolan McCarty, professor of politics and public affairs at Princeton University, and David Wasserman, house editor for The Cook Political Report, explored the practical effects of gerrymandering, including its impact on polarization and competitive elections. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates this discussion. To learn more about this week’s topic, visit our podcast resources page to explore show notes, guest bios, related Interactive Constitution essays, and more. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org

  • The existential threat of big tech
    by programs@constitutioncenter.org on December 27, 2017 at 14:31

    Franklin Foer, national correspondent for The Atlantic, explores how tech platforms like Facebook, Apple, Amazon, and Google have transformed the way we think and produced a new culture of misinformation that is trampling values such as privacy, autonomy, and individuality.  Jeffrey Rosen, president and CEO of the National Constitution Center, moderates this discussion, hosted at the Center in November 2017.

  • Sexual Harassment Law Under the Constitution
    by programs@constitutioncenter.org on December 21, 2017 at 16:41

    Gail Heriot and Diane Rosenfeld join National Constitution Center president and CEO Jeffrey Rosen to discuss how several federal laws may work to address sexual harassment and assault claims. Gail Heriot is Professor of Law at the University of San Diego Law School and a Commissioner on the U.S. Commission on Civil Rights. She is also a contributor to our Interactive Constitution on the 19th Amendment. Diane Rosenfeld  is a Lecturer on Law at Harvard Law School and Director, Gender Violence Program, Harvard Law School. She previously served as the served as the Senior Counsel to the Office of Violence Against Women Office of the U.S. Department of Justice. Jeffrey Rosen is the President and Chief Executive Officer of the National Constitution Center, the only institution in America chartered by Congress “to disseminate information about the United States Constitution on a nonpartisan basis.” He is also a professor at The George Washington University Law School, and a contributing editor for The Atlantic.  Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org

  • The Constitution and the Mueller investigation
    by programs@constitutioncenter.org on December 14, 2017 at 20:51

    In May, Deputy Attorney General Rod Rosenstein appointed former FBI director Robert Mueller as special counsel to investigate allegations of collusion between the Trump campaign and the Russian government. Since Mueller’s appointment, the probe has raised a number of constitutional questions, ranging from whether the president can legally fire Mueller and end the investigation to what remedies exist should Mueller find evidence of collusion. Specifically, the investigation has led to debates about the nature of potential obstruction of justice charges against a President; if a President can actually be charged with obstruction; and the role of Congress in the investigative process. National Constitution Center Jeffrey Rosen moderates a discussion about these issues two leading experts on these topics: Laura Donohue and Sai Prakash. Donohue is Professor of Law at Georgetown Law, Director of Georgetown’s Center on National Security and the Law, and Director of the Center on Privacy and Technology. Prakash is James Monroe Distinguished Professor of Law and Paul G. Mahoney Research Professor of Law at the University of Virginia Law School. Questions or comments? We would love to hear from you. Contact the We the People team at podcast@constitutioncenter.org

  • Net neutrality at a legal crossroads
    by programs@constitutioncenter.org on December 7, 2017 at 18:13

    Gus Hurwitz and Travis LeBlanc join National Constitution Center president and CEO Jeffrey Rosen for an engaging debate about the potential repeal of Obama-era net neutrality rules. To learn more about this week’s topic, visit our podcast resources page at constitutioncenter.org/debate/podcasts. Visit the resources page to explore show notes, guest bios, related Interactive Constitution essays, and more. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. 

  • The Masterpiece Cakeshop case
    by programs@constitutioncenter.org on November 30, 2017 at 19:28

    Vanita Gupta and Michael Moreland join National Constitution Center president and CEO Jeffrey Rosen to preview next week’s Supreme Court arguments about a dispute over a cake shop owner’s right to not create a cake for a same-sex marriage event. Gupta is the president and CEO of The Leadership Conference on Civil and Human Rights. The Leadership Conference joined an amicus brief in this case with other civil rights groups (NAACP, Southern Poverty Law Center), siding with the Civil Rights Division.  Moreland is University Professor of Law and Religion and Director of the Eleanor H. McCullen Center for Law, Religion and Public Policy at Villanova Law School. He joined an amicus brief along with 34 other legal scholars supporting the cake shop owner. To learn more about this week’s topic, visit our podcast resources page at constitutioncenter.org/debate/podcasts. Visit the resources page to explore show notes, guest bios, related Interactive Constitution essays, and more. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. 

  • The future of digital privacy
    by programs@constitutioncenter.org on November 22, 2017 at 15:33

    Alex Abdo of the Knight First Amendment Institute and Orin Kerr of George Washington Law debate whether warrantless searches and seizures of cellphone records violate the Fourth Amendment in a special podcast hosted at the National Press Club. In late November, the Supreme Court will tackle a very modern question about the venerable Fourth Amendment: Does it allow police to see where you’ve been for the past four months by looking at your cellphone data without a warrant? In Carpenter v. United States, which will be argued on November 29, cell number data placed a robbery suspect, Timothy Ivory Carpenter, near the scenes of several crimes, and at about the same time as those crimes happened.  The phone information was used as evidence leading to Carpenter’s conviction on robbery charges and he is serving a long prison sentence. The Carpenter case has spurred a flurry of activity among Fourth Amendment scholars. Carpenter’s lawyers believe modern cellphone records are fundamentally different than traditional phone records cited in a 1979 Supreme Court decision at permits such searches without warrants. The U.S. Court of Appeals for the Sixth Circuit ruled against Carpenter and said the Fourth Amendment’s search warrant requirement only protects what was actually said in phone conversations. And it upheld a third-party doctrine that the phone records belong to the phone company, they aren’t private information. Note: Audio for this podcast was recorded at an October 26, 2017 live event at the National Press Club sponsored by the American Constitution Society and The Federalist Society and presented with the generous support of the Bernstein Family Foundation.

  • Tax reform and the Constitution
    by programs@constitutioncenter.org on November 16, 2017 at 15:30

    Joseph Fiskin from the University of Texas at Austin Law School and Steven Willis from the University of Florida, Levin College of Law join National Constitution Center president and CEO Jeffrey Rosen to look at potential constitutional issues related to tax reform measures under debate at Congress. Please rate and review our podcasts on iTunes. And visit our Resources page at constitutioncenter.org/podcasts to comment on this podcast, and get extra information about this important debate.

  • Is the fight against ISIS legal?
    by programs@constitutioncenter.org on November 10, 2017 at 14:12

    Bruce Ackerman and Chris Fonzone join National Constitution Center president and CEO Jeffrey Rosen to discuss a lawsuit challenging several congressional actions used to authorize United States military actions against ISIS and other terror groups.

  • Deconstructing the administrative state
    by programs@constitutioncenter.org on November 2, 2017 at 17:20

    As a presidential candidate, Donald Trump ran on a platform of rolling back the “administrative state.” Since taking office, President Trump has followed through on some of his campaign promises, signing various Executive Orders aimed at undoing previous Executive Orders issued by President Obama. What will be the impact of the president’s regulatory agenda? Is Trump restoring constitutional order and checks and balances through his executive orders? Joining us to discuss these important questions and more are two of America’s leading scholars of administrative law. Dan Hemel is Assistant Professor of Law at the University of Chicago Law School. His research focuses on taxation, risk regulation, and innovation law. His current projects examine the effect of tax expenditures on inequality; the role of cost-benefit analysis in tax administration; and the use of tax incentives to encourage knowledge production. He has served as visiting counsel at the Joint Committee on Taxation. He blogs at Take Care. Karen Harned is Executive Director of the National Federation of Independent Business Small Business Legal Center, a post she has held since April 2002.  Prior to joining the Legal Center, Ms. Harned was an attorney at a Washington, D.C. law firm specializing in food and drug law, where she represented several small and large businesses and their respective trade associations before Congress and federal agencies.  Her organization, NFIB, was involved in litigation against the Affordable Care Act, in NFIB v. Sebelius, and is currently involved as an amicus in the NAM case before the Court.

  • The Emoluments Clause in court
    by programs@constitutioncenter.org on October 26, 2017 at 17:39

    Josh Blackman and Jed Shugerman join the National Constitution Center’s Jeffrey Rosen to discuss President Trump’s alleged violation of the Foreign and Domestic Emoluments Clauses.

  • The evolution of voting rights
    by programs@constitutioncenter.org on October 20, 2017 at 11:29

    Debo Adegbile and Will Consovoy join National Constitution Center president and CEO Jeffrey Rosen to discuss constitutional challenges to the Voting Rights Act and election law.

  • The state of the Second Amendment
    by programs@constitutioncenter.org on October 12, 2017 at 18:40

    In the aftermath of the Las Vegas tragedy, renewed attention has come to controversy over the constitutional status of guns in the United States and the role of the Second Amendment. Joining National Constitution Center president and CEO Jeffrey Rosen to discuss this central question are two of the leading scholars on this subject. Saul Cornell is the Paul and Diane Guenther Chair in American History at Fordham University. Nelson Lund is University Professor at George Mason University Antonin Scalia Law School. Note to listeners: Take the Panoply user survey at survey.panoply.fm.

  • The future of gerrymandering
    by programs@constitutioncenter.org on October 7, 2017 at 00:29

    Michael Morley and Daniel Tokaji join National Constitution Center president and CEO Jeffrey Rosen to discuss Supreme Court arguments in a potential landmark case about gerrymandering.

  • The First Amendment and hate speech
    by programs@constitutioncenter.org on September 28, 2017 at 23:58

    Shannon Gilreath and Keith Whittington join National Constitution Center president and CEO Jeffrey Rosen to discuss if the courts can regulate hate speech.

  • The Supreme Court’s next term
    by programs@constitutioncenter.org on September 21, 2017 at 18:13

    Michael Dorf and Ilya Shapiro join National Constitution Center president and CEO Jeffrey Rosen to preview a potentially blockbuster Supreme Court term starting in early October.

  • What would Madison think today?
    by programs@constitutioncenter.org on September 14, 2017 at 16:08

    In commemoration of Constitution Day 2017, we will explore what James Madison would think of today’s presidency, Congress, courts, and media and how we can resurrect Madisonian values today.

  • Presidential pardons and the rule of law
    by programs@constitutioncenter.org on September 7, 2017 at 14:44

    Brian Kalt and Margaret Love join National Constitution Center president and CEO Jeffrey Rosen in a broad-ranging discussion about the President’s constitutional powers to issue pardons.

  • Charlottesville and free assembly
    by programs@constitutioncenter.org on August 31, 2017 at 18:48

    Protests in Charlottesville, Baltimore, and Ferguson have prompted many questions about the right to protest in our country. What restrictions can governments place on assemblies? What responsibilities do governments have to protect protestors? How should we think about the right to protest in a free society? John Inazu and Burt Neuborne join National Constitution Center president and CEO Jeffrey Rosen to discuss Charlottesville and the right to free assembly.

  • War powers and national security
    by programs@constitutioncenter.org on August 25, 2017 at 14:17

    Article I of the Constitution gives Congress the power to declare war, raise armies, and regulate forces. Yet Article II names the President the Commander-in-Chief and vests him with the executive power. Who should be in charge of the nation’s security? What does the Constitution say about the relationship between Congress and the President in wartime? With rising tensions with North Korea, Afghanistan, and the global war on terror, these questions are as important as ever. Joining National Constitution Center president and CEO Jeffrey Rosen to discuss these important questions are two leading scholars of national security law. Sai Prakash is the James Monroe Distinguished Professor of Law at the University of Virginia. He is the author of Imperial from the Beginning: The Constitution of the Original Executive.  He has written extensively on the domestic war powers of Congress, the powers of the presidency, and the Constitution. Deborah Pearlstein is an associate professor at Benjamin N. Cardozo School of Law. Her work on national security and the separation of powers has appeared widely in law journals and the popular press. Today, she serves on the editorial board of the peer-reviewed Journal of National Security Law and Policy. CREDITS Today’s show was engineered by Kevin Kilbourne and produced by Ugonna Eze and Lana Ulrich. Research was provided by Lana and Tom Donnelly. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. And finally, despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • Trump, Twitter and the First Amendment
    by programs@constitutioncenter.org on August 17, 2017 at 23:21

    Can President Trump block citizens from following his own Twitter feed? The Knight First Amendment Institute at Columbia University has filed suit on behalf of several Twitter users who were denied the ability to follow the President’s Twitter feed after they made comments critical of him. The Institute claims that the ban is a violation of a First Amendment right to free speech and free assembly, and that a public official’s social media page is a designated public forum. The Justice Department, defending President Trump, says the courts are powerless to tell President Trump how he can manage his private Twitter handle and the Institute’s requests would “send the First Amendment deep into uncharted waters.” Joining our We The People podcast to discuss these arguments are Alex Abdo, a senior staff attorney at the Knight First Amendment Institute and Eugene Volokh, the Gary T. Schwartz Professor of Law at UCLA School of Law. CREDITS Today’s show was engineered by Jason Gregory and produced by Ugonna Eze and Lana Ulrich. Research was provided by Lana and Tom Donnelly. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. And finally, despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • Civil Rights And Constitutional Change
    by programs@constitutioncenter.org on August 10, 2017 at 09:00

    National Constitution Center president and CEO Jeffrey Rosen moderates a special discussion about the 1963 Birmingham Church bombing and how it impacted the meaning of equality in America. In this event, held on June 16 in Philadelphia, bombing survivor Sarah Collins Rudolph, Washington Post editor and author of Kennedy and King Steven Levingston, and Philadelphia Orchestra composer-in-residence Hannibal Lokumbe spoke with Rosen about the bombing’s legacy could also bring about constitutional change.

  • George Washington’s warning to future generations
    by programs@constitutioncenter.org on August 3, 2017 at 14:21

    John Avlon, editor-in-chief of The Daily Beast, discusses the first president’s momentous and prescient farewell address to the nation and how the address could help reunite America through the lessons rooted in Washington’s experience as described in his new book, Washington’s Farewell: The Founding Father’s Warning to Future Generations. Michael Gerhardt, scholar-in-residence at the National Constitution Center, moderates. the discussion.

  • Jeffrey Rosen at the Chautauqua Institution
    by programs@constitutioncenter.org on July 27, 2017 at 17:06

    In a special We The People podcast event, National Constitution Center president and CEO Jeffrey Rosen talks about the importance of the Supreme Court’s future at the famed Chautauqua Institution. Rosen spoke to an enthusiastic crowd on July 26, 2017 at the Institution in the southwestern part of New York State, which was founded in 1874. Among the upcoming cases Rosen discussed were free speech and privacy issues in front of the Supreme Court during its next term, which starts in October. In particular, the case of Carpenter v. United States is expected to be one of the biggest decisions of the upcoming term, Rosen said. The Carpenter case involves the ability of police to seize a cellphone using a statute, and not probable cause under the Fourth Amendment, to see information about its user’s locations over a several-month period. Also, Rosen previewed an important religious freedom case before the Court in its next term, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, about compelled free speech. Today’s show was edited by David Stotz. The host of We the People is Jeffrey Rosen. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast. Email us at [email protected]. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • May the President pardon himself?
    by Jon Roland on July 22, 2017 at 03:45

    Article II §2 of the Constitution states that the President  “shall have power to grant reprieves and pardons for offenses against the United States, except in cases of impeachment.” It also states in §3 “he shall take Care that the Laws be faithfully executed.” This defines his power with respect to law. He may not make, suspend, or repeal laws, but only execute them. He is not a monarch, and it is a source of confusion to take a term out of British monarchical practice and carry it over to American constitutional practice. That change in context changes the meaning. The Constitution also states in Article II §2, “The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.” That is essentially synonymous to a right to “equal protection” of the law, which was included in the 14th Amendment.What is a pardon, for a president? Not for a monarch, but for a president. It is simply his determination not to enforce a criminal conviction and sentencing order of a federal court. It has no meaning until after there is a conviction, because the crime is  not defined until then. Nor may he issue a pardon before conviction as a way to prevent a trial. He has no power to prevent a trial, including a trial of himself, although the court may not have personal jurisdiction over him. Nor may he use it to remove personal jurisdiction from any other individual. A court has personal jurisdiction if the defendant appears in it, unless it is a special appearance. A pardon is not a reversal of a conviction. Even after a pardon the conviction stands, and may be enforced at any time, until it is reversed. A president cannot bind his successors, any more than a monarch may. His decisions and determinations expire when he leaves office. (That includes executive orders.) So, yes, he may pardon himself.But the pardon doesn’t last forever. The conviction may be enforced when he leaves office.

  • The debate over President Trump’s election commission
    by programs@constitutioncenter.org on July 20, 2017 at 20:20

    Deborah Archer of New York Law School and Derek Muller of Pepperdine University discuss the agenda and challenges of the Presidential Advisory Commission on Election Integrity. Read about the 24th Amendment on the National Constitution Center’s Interactive Constitution. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was edited by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Jackie McDermott. The host of We the People is Jeffrey Rosen. Special thanks to Tom Donnelly for serving as host.

  • Should the 17th Amendment be repealed?
    by programs@constitutioncenter.org on July 13, 2017 at 09:00

    David Schleicher of Yale University and Todd Zywicki of George Mason University discuss the text, history, and future of this contested amendment. New essays are now available on the Constitution Center’s Interactive Constitution. Read about the 17th Amendment, the 20th Amendment, the 24th Amendment, and the 25th Amendment. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was edited by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The future of digital free speech
    by programs@constitutioncenter.org on July 6, 2017 at 17:58

    At a live event in Los Angeles, CA, Cindy Cohn of the Electronic Frontier Foundation, Judge Alex Kozinski of the U.S. Court of Appeals for the Ninth Circuit, and Eugene Volokh of UCLA discuss current debates about speech online. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was edited by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • What just happened at the Supreme Court?
    by programs@constitutioncenter.org on June 29, 2017 at 20:22

    Brianne Gorod of the Constitutional Accountability Center and Ilya Shapiro of the Cato Institute break down the busy final days of the Court’s 2016-2017 term. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • EXTRA: A celebration of Lyle Denniston
    by programs@constitutioncenter.org on June 28, 2017 at 20:38

    Legendary Supreme Court reporter Lyle Denniston reflects on the Court, the Constitution, and his long career. Continue today’s conversation on Facebook and Twitterusing @ConstitutionCtr. We want to know what you think of the podcast! Email us at [email protected]. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was engineered by Jason Gregory and produced by Nicandro Iannacci. The host of We the People is Jeffrey Rosen.

  • Government leaks and the Espionage Act at 100
    by programs@constitutioncenter.org on June 22, 2017 at 15:03

    Cybersecurity expert Paul Rosenzweig and Stephen Vladeck of the University of Texas explore the constitutional debate over leaks and their publication. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was edited by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Loving v. Virginia at 50
    by programs@constitutioncenter.org on June 15, 2017 at 15:47

    Steve Calabresi of Northwestern University and Sheryll Cashin of Georgetown University discuss the landmark case and its constitutional legacy. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was edited by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Russian “interference” in U.S. elections?
    by Jon Roland on June 10, 2017 at 20:19

    Much is being made about Russian “interference” in the 2016 presidential election, and about possible collusion between Russia and the Trump campaign to interfere to win the election for Trump. However, the suspicions are lacking in evidence.However, we do have a classified report from the Director of National Intelligence, the declassified version of which is linked below. It Seems to have at least tacit support from other agencies, and it can be expected to be the basis for other investigations on the subject.Despite the use of the word “Hacking” in the URL of the report, the only hacking discussed in the report is of the private Clinton server containing and sharing classified documents. It repeatedly says, “DHS assesses that the types of systems Russian actors targeted or compromised were not involved in vote tallying.” In other words, there was no known hacking of vote counts.However, the report is also loose about what constitutes a “Russian actor”. The hackers using the handle “Guccifer.2.0” are presumed in the report to be working for the Russian government, which Putin denies. However, that they might be independent is entirely plausible. Russia harbors a swarm of hackers, mostly bent on selling drugs or stealing page rank. It seems doubtful that all of them would work for the Russian government. Of course, the government would soon have what they found.So what kind of “collusion” with Trump supporters could there have been? Giving the Trump people advance notice of what they found ans asking them what to do with it? So the Trump people said “Upload it to Wikileaks.” So what. That is not “collusion”.In the report it says that “Guccifer.2.0 is identified as Romanian. That was the original Guccifer (without a version number). The report may be confused about all the Guccifers.The hacking of the Clinton servers was easy for almost anyone to do. It appears that many people did. That it revealed evidence of criminal wrongdoing is hardly “interference” in our election. We need more of that kind of interference in every election. It is also doubtful that the revelations did much to change the way people voted. Clinton supporters just dismissed the revelations as political lies, and her opponents weren’t going to vote for her anyway.Most of what the rest of the report discuses is just propaganda, mainly delivered through the RT (formerly Russia Today) network. I have frequently watched RT. Yes it is slanted pro-Russian, but one can compensate for that. Just as most of the media in the U.S. is slanted progressive or Democrat. (Now increasingly communistic and pro Islamic conquest.) Only Fox news and a few other independents seem not to be part of that spin machine. They are slanted, but it is easy to compensate for their slant. That same U.S. based media interferes in the elections of almost every nation on earth. in much the way RT does. Propagandists have a right of free speech. Spreading their slants on the news is hardly “interference”. That is also what political campaigns do. All part of the game.Now the spreading of “fake news” can be a problem, especially if done too close to an election, before the corrections can propagate.The DNI report is long on assertions, but short on evidence. Perhaps they are in the classified version, but the declassified version does not hint about what such evidence, if any, could be.It seems likely that the excitement about “Russian hacking” is intended to deflect attention from the Trump complaints of Democrats bringing illegal aliens to the polls to vote. That is plausible. Although I have not seen it done, I have heard Democrat campaign workers discussing how they did it. It was just a matter of rounding up illegals, driving them to the polls, and then having poll workers look the other way as the votes were cast. Most staff positions at the local government level are filled by Democrats, which puts them in position to do things like steal elections.Links:U.S. Director of National Intelligence, Background and Report, “Assessing Russian Activities and Intentions in Recent U.S. Elections: The Analytic Process and Cyber Incident Attribution,” Jan. 6, 2017, available at https://www.documentcloud.org/documents/3254239-Russia-Hacking-report.html

  • The soul of the First Amendment
    by programs@constitutioncenter.org on June 8, 2017 at 17:55

    Celebrated First Amendment attorney Floyd Abrams examines the degree to which American law protects free speech more often, more intensely, and more controversially than anywhere else in the world. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at [email protected]. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and edited by Jason Gregory. It was produced by Nicandro Iannacci. The host of We the People is Jeffrey Rosen.

  • EXTRA: Trump, Comey and obstruction of justice
    by programs@constitutioncenter.org on June 5, 2017 at 15:25

    Alan Dershowitz and Laura Donohue join our Jeffrey Rosen to discuss the legal and constitutional issues surrounding President Donald Trump’s handling of the Russia probe. This show was engineered by Jason Gregory and produced by Nicandro Iannacciand Scott Bomboy. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Continue today’s conversation onFacebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at [email protected]. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • Your constitutional questions, answered
    by programs@constitutioncenter.org on June 1, 2017 at 15:04

    Jeffrey Rosen, president and CEO of the National Constitution Center, answers listener questions about the Preamble, judicial power, and more. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci and Scott Bomboy. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Special thanks to Tom for serving as guest inquisitor.

  • What is “societal discrimination”?
    by Jon Roland on June 1, 2017 at 01:50

    I shall not today attempt further to define the kinds of material I understand to be embraced within that shorthand description [hard-core pornography]; and perhaps I could never succeed in intelligibly doing so. But I know it when I see it, and the motion picture involved in this case is not that.Concurring, Potter Stewart, Jacobellis v. Ohio, 378 U.S. 184 (1964).American jurisprudence has strayed in response to demands from some social justice advocates who perceive an undesirable situation and attribute it to discrimination, racism, or other deplorable practice. However, what has too often occurred is the logical fallacy, post hoc ergo propter hoc. (The result was caused by a preceding event.)The usual reasoning is that the result could not have occurred unless there was improper discrimination, and that therefore public policy must intervene against such discrimination. However, there can be many causes of undesirable outcomes, some of which may involve some kinds of discrimination, but not always improper discrimination.We can propose an alternative definition: (Improper) discrimination is treating an individual as though his attributes were those common to his group. It is a failure to treat individuals as individuals, but rather to aggregate individuals into their group.That brings us to having to confront something that most people don’t want to accept or think about. More than a century of intelligence testing on people of many races, ethnicities, and nationalities yields some dismal results for those who want to believe than there are no differences in innate abilities. Tests have been criticized as biased or unsound, but tests have been modified to answer those criticisms. The results persist. American Whites get an average score of 103, Jews get 113, American Blacks get 85, and Hispanics get 89. This has been investigated by Black economist Thomas Sowell, who argues that while it is wrong to treat all members of those groups as though they had those average values. it does cast doubt on whether the low average performance of members of those in fields like education and employment is the result of societal discrimination. If they are in fact innately inferior, and genetic studies indicate that 50-80% of such differences are genetic, than that changes what we should be doing about such disparities.I invite readers to put aside their reflex rejection of such results and seriously consider what we do if they turn out to be valid. Note that the above paragraph is presented as conjectural, not as an assertion, and it should not be taken as my position on the issues.The key point here is to propose a better definition of “societal discrimination” than that which has become established in American jurisprudence today, where judges sometimes find that disparate outcomes are the result of societal discrimination, without evidence. That is not a proper basis for judicial intervention. The proposed definition is intended to work regardless of what might be the causes of any traits that might become stably manifest in a group, whether genetic, “environmental” which may include “discrimination”, or whatever. It also doesn’t matter what the “group” might be, or how it is determined. It works for any group, however defined.Those who argue against genetic influence on intelligence as its manifestation stabilizes make a key mistake: they presume that there are only two general causative factors, genetic and environmental. In fact there is a third: emergence, referring to the fact that complex living systems are self-organizing, or chaotic, systems, in which small perturbations can have large consequences, and continue to have large consequences as the system develops.But part of the mistake is to lump emergent development into environment, or “nurture”, as though it were something that could be managed purposely. It is inherently unmanageable.A second mistake is to treat genomes (genotypes) as more deterministic than they are. Genes influence the probabilities of phenotypes, but do not determine them. A typical human genome is thought to contain about 30,000 genes. The information contained in those genes is about eleven orders of magnitude less than enough to determine all the phenotypes in detail. But all the information that can be passed through the senses to influence development is also many orders of magnitude less than what it would take to determine human behavior in detail. Since information cannot be created, that means something else is shaping the details. That something is self-organization, but unmanageable self-organization. It is not susceptible to deliberate intervention.A third mistake is to imagine that societal interventions, individual or collective, are or can be more effective than they usually are, especially after some period of development when the things we want to change have become stably manifest. At some point the undesirable traits become difficult or impossible to reverse. Once they stabilize they become a reality that has to be confronted, regardless of the causes of the differences. This especially valid for cognitive development, for malleable youthful brains do not remain as malleable beyond a certain age.Especially illuminating to the question of the extent to which genes are determinative of cognitive capacity are the way genes largely determine species, each of which has a characteristic range of cognitive capacities. Some species even have their own versions of “societal discrimination”, but in most it is difficult to identify any systematic effect of the distribution of cognitive capacities. For that purpose it is useful too compare humans with their two closest relatives, chimpanzees and bonobos.Bonobos differ greatly from chimpanzees in their behavior. Unlike Chimps, they do not become aggressive and ill-behaved after the age of puberty. Therefore they have become a favorite subject for learning studies. They are able to learn to understand spoken English, and to communicate using symbolic keyboards that produce spoken words when pressed, but so far only up about the level of a 2.5-year-old human. They share about 3% of the human genome, or 0.5 megabases, which is more than they share with chimps. Humans have about 14.6 megabases they share with neither of their cousin species. Within that subgenome we can expect to find the genes that most influence human cognitive development. It is a large number, but finite. We can speculate that the number is a few thousand. The genes don’t have to determine the wiring of the brain. All they have to do is set up the emergent process which then determines its own structure and behavior. But that process is, in general, unmanageable, and once it stabilizes, either to work well or not, it is likely to be irreversible.Consider fingerprints. Identical twins both have them, but they are not identical. The details of the fingerprint are the result of emergence. Similarly hearts. Identical twins both have them, but the details of vascularization are not the same. Tissue that is to become a heart becomes one by responding to pressures from adjacent tissue that shape its development. The result is a chaotic system, that beats but not governed by a pacing signal. Similarly brains. Both twins get one, but the details of neuronal net structuring differs, although there can be similarities in the ways each twin leads its life.Much is made of the capacity of humans, unlike most other species, to choose to overcome their seemingly innate limitations through determination and effort, perhaps with a little encouragement. That works with some, although not with all. There may be genes for that as well. Of course, no one really overcomes innate limitations, only realizes the potential that was there, but the ability of the brain to learn can continue into later years, especially with enough fortitude. It can sometimes even compensate for damage, as from injury or stroke. But only sometimes. Such things cannot be counted on to solve widespread or entrenched disparities of outcomes.And no amount of determination is going to enable someone of average ability to become a cosmologist. Perhaps a successful lawyer in a small market.Something also needs to be said about “white privilege”. Nothing is said about how it is supposed to work. When I was young almost anyone could get a job within a day or two if he pitched himself properly. There was plenty of work to be done, and if someone had work to be done it didn’t matter much who did it. But things have changed.I am a highly skilled, highly experienced computer professional, yet I have difficulty getting work. The hiring process has become so difficult that about the only way I have gotten work has been by random contact with a hiring manager outside the workplace. That leads to the old saying, “It’s not what you know but who you know that counts.” Jobs today are surrounded by hordes of gatekeepers, each determined not to hire anyone they find unsuited, or even if they do find someone suited. But of course, if most of the gatekeepers are white, or whatever is the dominant shade in the community in which the job is, then you have to get to know at least one of the gatekeepers, and if that person happens to be white, then one can come away with the impression that “white privilege” has been the deciding factor. Getting past the gatekeepers can be largely a matter of luck. Many a successful businessman, if pressed for the secret of his success, will confess it was mainly a matter of luck. Of course, persistence can overcome bad luck, but it can only overcome so much bad luck.Most disadvantaged people just don’t know how to enter the circles where hiring managers dwell. Part of that is in their appearance and manner of speaking. They don’t have a Henry Higgins to coach them. To get a professional position one has to fit the image of a top professional.Another problem is technological unemployment. Machines are taking or eliminating jobs. Rapidly. That means many middle class persons are going to descend in their economic status. It’s going to get rough for everyone, even for the top 1%. Eventually even they will be replaced.Is “societal discrimination” as important as some think?There is a widespread belief that disparities of socio-economic condition are entirely the result of discrimination, in the absence of which everyone would be educated, middle class persons. But is that more myth than real? Or could disparities in the treatment of people be more the result of differences in their attitudes or merits?Obviously there is some discrimination, enough to seize on as a explanation for much of what we observe, but that doesn’t make it the explanation for everything. Some disadvantages are a matter of choice, and will not be overcome by “ending discrimination”.It means he’s up against middle-class morality for all the time. …I ain’t pretending to be deserving… no… I’m undeserving, and I mean to go on being undeserving. I like it, and that’s the truth. — Alfred P. Doolittle, My Fair Lady.______IQ and Race, Thomas Sowell, 11/26/2012. http://mobile.wnd.com/2012/11/iq-and-race/Intelligence, New Findings and Theoretical Developments, Nisbett, Blair, Dickens, Flynn, Halpern, Turkheimer, February–March 2012, American Psychologist https://www.apa.org/pubs/journals/releases/amp-67-2-130.pdfCommentary on the above, by Turkheimer, et. al., Vox Media, May 18, 2017.The bonobo genome compared with the chimpanzee and human genomes, Kay Prüfer, Kasper Munch, Ines Hellmann, et al., 486/7404, Nature Letters https://www.nature.com/nature/journal/v486/n7404/full/nature11128.html

  • The life and legacy of John Marshall
    by programs@constitutioncenter.org on May 25, 2017 at 17:33

    Michael Gerhardt of the University of North Carolina and Kevin Walsh of the University of Richmond explore the influential career of the nation’s longest-serving chief justice. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci and Scott Bomboy. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen. Special thanks to Tom Donnelly for serving as guest host.

  • A prophetic 1944 interview
    by Jon Roland on May 20, 2017 at 13:46

    Norman Mattoon Thomas (November 20, 1884 – December 19, 1968) was a leading American socialist, pacifist, and six-time presidential candidate for the Socialist Party of America. He said this in a 1944 interview: The American people will never knowingly adopt socialism. But, under the name of “liberalism,” they will adopt every fragment of the socialist program, until one day America will be a socialist nation, without knowing how it happened…. I no longer need to run as a Presidential Candidate for the Socialist Party. The Democratic Party has adopted our platform.This statement reveals several key ideas:The first is that a third party can win support for its policy positions without winning any elections if one of the two main parties adopts its positions.The second is that it is a winning political strategy to advantage a small segment of the voters at the expense of a smaller segment. Do that for enough small segments and eventually you will have socialism.The third is that it is a winning strategy to avoid allowing your ultimate objective, or the constitutional implications, to be framed as the question to be decided by the voters. People wouldn’t vote for socialism, or for violating the Constitution, if the question were framed in those terms, but will vote for incremental steps toward it, and fail to understand the opponents when they try to explain to voters what those steps lead to, or that they are unconstitutional.The problem for libertarians is that liberty doesn’t sell as well as government benefits. People don’t really appreciate liberty until they have lost it, and too often they will not even realize they have lost it, or they will attribute the loss to something other than their own past election choices. It is easier for most people to imagine a prospective financial gain or loss than a loss of liberty. Money can be counted in a way that liberty can’t.The same may be said of constitutional compliance. Few politicians make it a leading issue in campaigns. Most people don’t understand it and have come to think that calling the opponent’s position “unconstitutional” is just rhetoric. The few who do understand usually don’t have enough influence over the others. The number of people who can understand what is and what is not constitutional is fairly small, and always has been. The only time in history it was large was during the first three American revolutions: the War for Independence, the ratification of the Constitution, and the Election of 1800, the last of which entrenched the Jeffersonian position on constitutional interpretation for the period from 1800 through 1824, and then to a declining degree for most of the rest of the 19th century. But even during the ratification debates it is unlikely that the majority of the people really understood the proposed Constitution in its entirety. Some focused on particular provisions that seemed dangerous, and opposed it until their fears were alleviated. Most probably supported it because George Washington did, demonstrating that the way to get complicated reforms is not to educate all the people but to get the support of charismatic personalities the voters like and trust.Most of Ron Paul’s constituents don’t vote for him because they agree with his positions. They vote for him because they like and trust him. It is more important for most voters to be comfortable with the personality than with his positions.”Bait and switch” works in political selling as well. Voters are offered some charismatic personality or government benefit and never told that either represents a violation of the Constitution. Some will argue that the people have voted for the departures from constitutional compliance and thus ratified them in some sense, but that is deceptive, because the people were deceived by not having the constitutional implications of their choices explained to them. They did not vote for violation. The issues weren’t framed to them that way.That doesn’t mean it is not a productive activity to educate people on constitutional compliance. We need to create a learning environment in which some of those charismatic personalities can “get it” and then bring their insights with them when they take office. We have to spread the education around because it is not always easy to discern who will be the charismatic personalities of the future, and because such people are herd animals like any other who are going to want the reassurance of like-minded people before they will venture forth with constitutionalist positions. The trick is to both educate those individuals and enough of the individuals around them.What we learn from the study of the diffusion of innovations is that most people don’t adopt new things because they learn about them from some kind of broadcast message. They are influenced more by the examples of those they look to as role models, and that chain of influence tends to sort itself into levels, with “early adopters” at the top, “secondary adopters” below them, “tertiary adopters” below both, and “quadranary adopters” below the first three. We also learn that most people don’t adopt new things in long leaps or from single exposures to messages or examples. Except for the early adopters people generally adopt in small steps spaced over a period of time in response to repeated messages. That means you need to target people who are ready to take the next step, figure out where they are and how far you can get them to go on that occasion, then move on to others, but return to the first before they go cold and move them on to the next step, repeating the process until you get many people recruited. Then you need to keep them recruited with positive reinforcements, because most adopters won’t stick to a new things unless it rewards them in some way, and because there are usually competing innovations that may win them over if you neglect to hold them.

  • Will the President’s travel ban hold up in court?
    by programs@constitutioncenter.org on May 18, 2017 at 20:24

    Leah Litman of the University of California, Irvine, and Earl Maltz of Rutgers University discuss the latest legal developments and how the ban may ultimately fare at the Supreme Court. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Exploring the debate over ‘sanctuary cities’
    by programs@constitutioncenter.org on May 11, 2017 at 18:40

    Elizabeth Price Foley of Florida International University and Cristina Rodriguez of Yale University discuss President Trump’s executive order on immigration and how Congress could respond to sanctuary cities going forward. Continue today’s conversation on Facebookand Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • EXTRA: Is the firing of James Comey a constitutional crisis?
    by programs@constitutioncenter.org on May 11, 2017 at 09:04

    In a special bonus episode, Josh Blackman of the South Texas College of Law in Houston and David Cole of the American Civil Liberties Union discuss what President Trump’s firing of the FBI director means for our constitutional system. If you like what we did today – a shorter episode on breaking constitutional news – let us know at editor@constitutioncenter.org. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Intent of the 14th Amendment
    by Jon Roland on May 8, 2017 at 14:43

    To my 2000 article on the Intent of the 14th Amendment I make the following clarifying points:1. The 14th Amendment did not confer U.S. citizenship on individuals born on U.S. soil, whose parents were not subject to the jurisdiction of a foreign power. That was already the established rule, inherited from English law, and U.S. citizenship arguably began on non-state territory with adoption of the Articles of Confederation (ratified 1781) and the adoption of the Northwest and Southwest Ordinances (1787), which transferred sovereignty of the western territories, previously subject to conflicting claims by the states, to the emerging United States (a term that originated during the earlier (1774) Articles of Association under which the War of Independence was fought.2. Adoption of the U.S. Constitution made all persons born on the soil of any of the states U.S. citizens as well as those born on any of the non-state territories, and conferred on Congress the power to make rules for naturalization. That was not the power to make rules for immigration, which stem not from the Naturalization Clause but from the Law of nations Clause, since entry onto the territory of a nation without permission was an offence against the law of nations.3. The U.S. Constitution put restrictions of the states in Art. I Sec. 10, and since all restrictions on government powers are rights, or more precisely, immunities, it thereby established rights of U.S. persons (not just citizens) in the states against their states, justiciable in U.S. courts.4. The language of the Bill of Rights (1791), except that of the First Amendment, seemed to apply equally to the U.S. and state governments, and like Art. I Sec. 10, to make an exception to the omission from Art. III of federal court jurisdiction over cases between a citizen and his state, but it attached rights to persons, not just citizens. (The Framers, in writing Art. III, presumed a person who was a resident of a state would also be a citizen of that state, and did not anticipate states would later assert a different position.)5. However, the states defined state citizenship as well, and in ways that did not include the same individuals as were included in U.S. citizenship, such as blacks.6. Some of the southern, slaveholding, states belatedly realized that if the Fifth Amendment Due Process Clause applied to them, and federal courts had jurisdiction, slaves could sue in federal courts for their freedom, as deprivation of liberty without due process of law.7. This led to two main cases. Barron v. Baltimore (1833) and Dred Scott v. Sanford (1857). In Barron, slavery was not the issue. The Takings Clause of the Fifth Amendment was the issue. But it was realized, when it got to the Supreme Court, that if the Court decided in favor of Barron, it would establish a precedent that would allow slavery to be challenged, so it decided against him, and CJ Marshall (wrongly) held the U.S. courts did not have jurisdiction to decide cases over the Bill of Rights between a citizen and his state, as that was already a federal question, despite Article III only mentioning “citizen” of a state in the list of court jurisdictions.8. In Dred Scott slavery was the issue. The problem was that the federal courts could not avoid jurisdiction because persons of different states were the opposing parties. The Bill of Rights, and other provisions of the U.S. Constitution, associate rights with personhood, not citizenship, and it was already established precedent that blacks were persons, so CJ Taney for the U.S. Supreme Court weaseled out of the trap by (wrongly) holding that blacks were not and could not be citizens, and thus, federal courts would not have jurisdiction, since Art. III uses the term “citizen” instead of “person” in defining jurisdiction. The effect was to make the rights of persons not citizens non-justiciable in federal courts, contrary to the obvious intent of the Bill of Rights.9. By the time the view developed that both precedents had to be overturned, and that it would take an amendment to do that, many more precedents had been built on those two cases. So it was not enough for an amendment to just refer to the two cases and explicitly overturn them. It had to adopt general language that would cover the entire system of precedents based on them, past and future.10. That left the problem that the states could not be allowed to deny rights to persons on their territories by defining them as noncitizens. That could make the U.S. Constitution a nullity in such states, by doing something outlandish like defining Jim Bob and Red Neck as the only citizens. So what the 14th Amendment did do was make all U.S. citizens state citizens if they reside in the state (although it neglected to define residency). That included blacks. However, it also neglected to make clear that most rights belong to persons and not just citizens.11. Some would argue that the language they chose was not very clear, and that a better wording was needed, but if one tries to find better language, it is not all that easy. (If I had been there, I could have done it, as I have, but I was born too late.)12. There is actually no U.S. Supreme Court decision that sustains the offspring born on U.S. soil of parents who have entered U.S. soil illegally to be natural born U.S. citizens. Such parents are arguably not “subject to the jurisdiction” in that they did not seek and obtain consent to enter. All the cases have either been parents who entered legally, or for which the legality of their entry was not before the court. There is a presumption that those born on U.S. soil are natural born citizens, subject to proof to the contrary, and in the absence of someone to argue that position, the presumption stands. If someone wants to get a precedent to that point, one needs to take a case to the U.S. Supreme Court.1866 Civil Rights Act.Following the War of secession, Congress adopted the 1866 Civil Rights Act, under its sovereign power as the victor in the war. But there was no constitutional authority for most of its provisions. So the need was recognized to enact an amendment that would authorize that act, albeit retroactively. The problem was how to word it so that it would encompass the entire act. The 14th Amendment, declared adopted in 1868, needs to be understood as their attempt to do that. The result is rather broad, sweeping language.The bill plainly sought to overrule the Black Codes by affirming the full citizenship of newly emancipated blacks and by defining citizenship in terms applicable to all persons. Under the bill, the designation as an American citizen meant that one possessed certain specific rights, such as the right to make and enforce contracts, the right to file lawsuits and participate in lawsuits as parties or witnesses, and the right to inherit, purchase, lease, sell, hold and convey real property. In defining citizenship in this manner, the act effectively overruled state-sponsored Black Codes.At the same time, the act specified that these rights were “civil rights,” giving the first clear indication that, in the context of race relations, there were different levels, or tiers, of rights at stake. “Civil rights” at this time were understood in terms of property rights, contract rights, and equal protection of the laws. These rights were distinct from “political rights,” which involved the right to vote and hold public office, and “social rights,” which related to access to public accommodations and the like. Thus the bill reflected the common view that political participation and social integration were more or less “privileges” and not basic elements of citizenship.Section 1The 14th Amendment begins:Section. 1. All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.It is a source of some confusion that the first sentence did not use the legal term of art “natural born citizen” used in the Eligibility Clause of Article II, leading some to argue that the 14th Amendment created some new kind of citizenship. It did not. The wordsAll persons born …  in the United States, and subject to the jurisdiction thereof, are citizens of the United States …Mean the same thing. The rule, jus soli, which was already established in Anglo-American common law, goes back to Calvin’s Case, 7 Coke Report 1a, 77 ER 377 (1608). In 1868 “in the United States” included all the territory of all the states and also the (incorporated) western territories. Citizens of those western territories were also citizens of the United States.The first sentence then introduces something new:and of the State wherein they reside.That made U.S. citizens, with all their rights, citizens of a state in which they lived. It did not specify how long they needed to reside there, and that was arguably a serious oversight, but the words have so far not been abused as much as they could have been.The third sentence begins:No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States;This is the Privileges or immunities clause, which was ignored by the Supreme Court in reaching its decision in the Slaughterhouse Cases, and which has been ignored ever since. Note that it is the “privileges or immunities” of citizens, not persons, which is used in the remainder of the sentence.The words “privileges and immunities appear in Article IV:Section. 2. The Citizens of each State shall be entitled to all Privileges and Immunities of Citizens in the several States.Does it make a difference whether the conjunction is “and” or “or”? Some have argued that in Article IV the “privileges” must be identical to the “immunities”, but earlier usages of those terms both ways establishes that the two may be different, although perhaps overlapping.The “privilege-immunity” distinction therefore goes back to the Framing in 1787, even though the Bill of Rights uses the term “rights”. It was recognized by Madison when he introduced the Bill of Rights that there are different kinds of “rights” with different sources:Madison, from the Debates on the Bill of rights:In some instances they assert those rights which are exercised by the people in forming and establishing a plan of Government. In other instances, they specify those rights which are retained when particular powers are given up to be exercised by the Legislature. In other instances, they specify positive rights, which may seem to result from the nature of the compact. Trial by jury cannot be considered as a natural right, but a right resulting from a social compact which regulates the action of the community, but is as essential to secure the liberty of the people as any one of the pre-existent rights of nature.Madison here recognizes that trial by jury is not a pre-existing natural right, but a right arising out of the social compact. There are other such rights, explored at “The Social Contract and Constitutional Republics”. The rights that pre-exist the Constitution include natural rights, social rights, arising out of what Madison called the “social compact”, and what we may call “dominion” rights, arising out of the dominion, the society with exclusive possession or sovereignty over an established territory. Those would include the rights of denizenship, to remain at or return to one’s place of birth or residency.What are sometimes miscalled the “rights of citizenship”, such as to vote, other than to ratify a constitution, which is a social right, or hold office, are not among the pre-existing rights, but are “privileges” created by the Constitution or by government. The pre-existing rights are in general protected by restrictions on the delegated powers of government, and as such are “immunities”.So we have two kinds of things: “rights” that stem from nature, society, or dominion, and are protected by immunities, or restrictions on the powers of government (or the nondelegation of them), and “privileges” that stem from a constitution or a government, that may be established but which may be removed at any time.Some scholars have attempted to research the historical record to find examples, sometimes called “rights”, sometimes “immunities”, and sometimes privileges”, indicating a lack of consistency in the use of such terms.An early attempt to define privileges and immunities is found in the opinion of Judge Bushrod Washington the case Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823:… what are the privileges and immunities of citizens in the [Volume 4, Page 503] several states?” We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental; which belong, of right, to the citizens of all free governments; and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are, it would perhaps be more tedious than difficult to enumerate. They may, however, be all comprehended under the following general heads: Protection by the government; the enjoyment of life and liberty, with the right to acquire and possess property of every kind, and to pursue and obtain happiness and safety; subject nevertheless to such restraints as the government may justly prescribe for the general good of the whole. The right of a citizen of one state to pass through, or to reside in any other state, for purposes of trade, agriculture, professional pursuits, or otherwise; to claim the benefit of the writ of habeas corpus; to institute and maintain actions of any kind in the courts of the state; to take, hold and dispose of property, either real or personal; and an exemption from higher taxes or impositions than are paid by the other citizens of the state; may be mentioned as some of the particular privileges and immunities of citizens, which are clearly embraced by the general description of privileges deemed to be fundamental: to which may be added, the elective franchise, as regulated and established by the laws or constitution of the state in which it is to be exercised. These, and many others which might be mentioned, are, strictly speaking, privileges and immunities, But these are  examples pulled from memory as the judge wrote. The are not systematic analyses of the principles by which privileges or immunities can be identified, which is what we provide here.Due processThe last sentence of Section 1 states:nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.This is clearly taken from Article IV Section 1. But after the Slaughterhouse cases, which ignored the Privileges or immunities Clause to reach its verdict, this has been the only clause on which subsequent Supreme Court cases have been based, although they have introduced ideas like “procedural due process” and “substantive due process” to try to recreate them.Slaughterhouse CasesThe Slaughter-House Cases, 83 U.S. 36 (1873), was the first United States Supreme Court interpretation of the U.S. Constitution’s Fourteenth Amendment which had recently been enacted. It was a pivotal case in early civil rights law and held that the Fourteenth Amendment protects the privileges or immunities of citizenship of the United States, not privileges and immunities of citizens of a state from their state governments. But the entire point of the 14th Amendment had been to protect state citizens from being deprived of privileges or immunities common to citizens (and resident persons) of the United States. To this day the interpretive error of these cases has not been corrected, although it has been worked around.It came closest to being corrected in two cases, Roe v. Wade, and McDonald v. Chicago. In the first, the Supreme Court heard an appeal of the case decided in the district court, which found for the plaintiff on the grounds of the Ninth Amendment right of privacy being one of the privileges or immunities protected by the 14th Amendment. The Supreme Court justices all struggled to avoid reaching that result, through convoluted reasoning, but in the end decided the case on due process grounds.Read carefully, that case reveals the real reason for the reluctance of the Supreme Court to accept the Privileges or Immunities clause, and incorporate it, because that would require then to incorporate the Ninth Amendment, and when a court did that, it found a “right of privacy” that provided a basis for making abortion a right. The Supreme Court, even though it did allow abortion to be treated as a right, is reluctant to find any more rights than those enumerated in the Bill of Rights and elsewhere in the Constitution.This controversy over the Ninth Amendment has been central to constitutional scholarship, with former judge Robert Bork likening it to an “ink blot” that should not be used because one could not be sure what it means.McDonald v. Chicago, 561 U.S. 742 (2010), was expressly argued on the Privileges or Immunities Clause, but the Supreme Court of the United States found that the right of an individual to “keep and bear arms” as protected under the Second Amendment is incorporated by the Due Process Clause of the Fourteenth Amendment against the states, not the Privileges or Immunities Clause.  Justice Thomas dissented on that.Public debtThe 14th goes on to say:Section. 4. The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned.Some have tried to misread this to say that no federal debt shall be questioned. Of course, it only applies to federal debt incurred during the War of Secession, but it did have a profound impact on debt and money in the United States.During the war the Union did not have enough gold or silver to pay its debts, so it issued paper money (greenbacks), fiat currency that the Union required its suppliers to accept as legal tender. But when those suppliers tried to pay their own suppliers with greenbacks, and those suppliers refused to accept the greenbacks, litigation ensued, called the Legal Tender Cases, that established that federal fiat currency was legal tender, not just on federal territory, but within the states as well. That situation continues to this day.EnforcementThe 14th Amendment ends withSection. 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.So what did that allow, with the Privileges or Immunities clause read out of the amendment? Evidently, a great deal. Congress went on to enact what became 18 USC 241 and 242, making it a criminal offense for a state actor (but not a federal actor), or a private party acting at the instigation of a state actor, to deprive or conspire to deprive a state citizen of his rights, and 42 USC 1983, allowing a civil claim for damages against the state, or at least a state actor. However, such civil claims have been circumscribed by the doctrine of state sovereign immunity.Ratified?There is a lingering controversy over whether the 14th Amendment was actually ratified. The ratifying states did so under duress, and there is some doubt whether their ratifications were accurately reported.Courts do not allow arguments that the 14th was not ratified. Any party or lawyer who attempts to make such argument would be thrown out of court, and the lawyer fined or disbarred. The reason is that such arguments conflict with established jurisprudential doctrine (“custom, policy, and practice”).About the only way a conscientious litigator could introduce doubt about ratification into the record would be to preface an argument with “If, arguendo, the 14th Amendment had been ratified …”The way forwardThe challenge is to steer cases to the Supreme Court that will encourage them to undo the damage done by the opinion in the Slaughterhouse Cases. That was almost done in McDonald v. Chicago, but the Court backed away from reestablishing “privileges or immunities”. That case was a Second Amendment case, and now that it is a win for them, the same litigants might not be so anxious to push the envelope further.The key to advancing jurisprudence and overturning wrong opinions is to set up cases carefully. That is not easy, considering the high costs of litigating before the Supreme Court.One approach would be to bring a case that requires invoking the Ninth Amendment, since that is the great hurtle to be overcome. Such a case might be over mass surveillance, for which the Fourth Amendment is inadequate. But as long as (mostly conservative) judges think of the Ninth as some kind of “inkblot”, opening the way to finding unenumerated rights would present them with a kind of “terra incognita” they may be reluctant to explore. The solution is to encourage scholarly discussion of just what are the “unenumerated rights”, which, by the way, are not really “infinite”. An attempt to do this is presented in the chapter “Immunitates”. Yes, there are many such rights (or more properly, “immunities”) but the list is not infinite. It needs to be examined and debated, and any missing rights identified and included.This is mainly a task for libertarian legal scholars, since conservatives seem more likely to see an inkblot. It would also help to get some libertarians appointed to the Supreme Court.If this were done, the next step would be to revive the Tenth Amendment, and roll back all the federal criminal statutes based on the Necessary and Proper Clause, as Wickard v. Filburn was.Links:The Civil Rights Act of 1866 (14 Stat. 27). http://www.encyclopedia.com/social-sciences-and-law/law/law/civil-rights-act-1866Intent of the Fourteenth Amendment was to Protect All Rights, Jon Roland, 2000. http://www.constitution.org/col/intent_14th.htmPresidential Eligibility, Jon Roland. http://constitution.org/abus/pres_elig.htmDebates on the Bill of Rights, http://constitution.org/ac/001/r01-1/bill_of_rights_hr1789.htmThe Social Contract and Constitutional Republics, http://constitution.org/soclcont.htmNatelson, Robert. “The Original Meaning of the Privileges and Immunities Clause”, Georgia Law Review, Vol. 43 1117-1193, at 1183 (2009). Corfield v. Coryell, 6 Fed. Cas. 546, no. 3,230 C.C.E.D.Pa. 1823, http://press-pubs.uchicago.edu/founders/print_documents/a4_2_1s18.htmlSlaughter-house Cases, https://en.wikipedia.org/wiki/Slaughter-House_CasesRoe v. Wade, 410 U.S. 113 (1973). https://en.wikipedia.org/wiki/Roe_v._WadeNinth Amendment to the U.S. Constitution, https://en.wikipedia.org/wiki/Ninth_Amendment_to_the_United_States_ConstitutionPresumption of Nonauthority and Unenumerated rights,  http://constitution.org/9ll/schol/pnur.htmMcDonald v. Chicago, 561 U.S. 742 (2010). https://en.wikipedia.org/wiki/McDonald_v._City_of_ChicagoLegal Tender Cases, https://en.wikipedia.org/wiki/Legal_Tender_Cases14th Amendment ratified?  http://constitution.org/14ll/14ll.htm

  • James Wilson and the creation of the Constitution
    by programs@constitutioncenter.org on May 4, 2017 at 15:40

    Christopher Yoo of the University of Pennsylvania Law School and Tom Donnelly of the National Constitution Center discuss the Pennsylvania Federalist and America’s greatest proponent of popular sovereignty. American Treasures: Documenting the Nation’s Founding is now open at the Constitution Center. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Effective judicial oversight
    by Jon Roland on April 28, 2017 at 03:56

    Many complain about judicial corruption and call for judicial accountability, but generally fail to propose effective processes for achieving it.In an effort to make judges independent of political pressures, they are generally left with great discretion to be used justly or not. In some states they are elected, and come under they sway of the law firms that support them. They are generally under the loose supervision of an “administrative” judge, who has his own docket and can’t exercise daily oversight, even if he were inclined to do so. He is usually limited to assigning judges to courts, and can reassign them to no court as a way to get rid of them. Judicial decisions can be appealed, but the appeal process is so difficult and uncertain that the risk of being overturned is small, and can be ignored. Judges are generally not removed for having too many of their decisions overturned, and if they are it is likely to be for making right decisions rather than wrong ones.There are judicial misconduct boards, but they tend to get so many complaints that they come to dismiss them out or hand, and such boards do not investigate complaints made while trials are still underway.What is needed are grand juries with agents who can sit in on trials and intervene if misconduct occurs. That would be a major undertaking. It would need to be able to rapidly respond to complaints made during trials in time to be effective, and they could not be visible enough for parties to play to them rather than to their judges. We can imagine having school classes of students assigned to observe trials reporting on any irregularities they might observe, and calling in judicial inspectors as needed.

  • The Madisonian Constitution and the future of freedom
    by programs@constitutioncenter.org on April 27, 2017 at 18:32

    In excerpts from Freedom Day 2017, Mickey Edwards and Norm Ornstein reflect on the state of Congress, and George Will offers his take on the future of freedom. Listen to the full program, including great panels on the media, presidency, and more, on our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and David Stotz. It was produced by Nicandro Iannacci. The host of We the People is Jeffrey Rosen.

  • Scientists abandoning their training in policymaking
    by Jon Roland on April 26, 2017 at 20:20

    In 1970 I attended the First National Congress on Population and Environment, with mostly scientifically-trained people. I was impressed by how the scientists abandoned their scientific training when they went into policy analysis, and resorted to intuitive leaps that they then tried to justify with seemingly scientific reasoning. I was coming from a background in computer systems, so was skeptical of this kind of unsystematic thinking. So was Jay Forrester, of MIT, who wrote “The Counterintuitive behavior of Social Systwms”. http://constitution.org/ps/cbss.pdf I subsequently tried to leaven the more extreme analyses with doses of systems analysis.I became involved with the Limits to Growth computer modeling effort that forecast a peak in growth followed by decline and collapse as resource limits were reached. The result was an article,  “The Disturbing Implications of World Dynamics”, The Futurist, Mar 1971. Review of the book and discussion of its methodology and the Limits to Growth computer  model. I concluded that the LtG model made some incorrect assumptions about the alternatives we had: that resources were limited to those available to surface extraction. Leaving aside the alternative of mining asteroids, there was also the alternative of extreme conservation in compact “starship cities” on or beneath the surface of the Earth. That led to my article “Three Futures for Earth”, http://pynthan.com/vri/3f4e_002.htm in which I laid out a more comprehensive analysis of the full range of alternatives available to us. That analysis remains valid, although if I were to rewrite it today, I would forecast that the cities would house few if any human beings, their role being replaced by machines. They would not be places out of Star Trek. The crew would be replaced by Data or its equivalent. That would leave humans to live in the wilderness, as wild animals perhaps with a 19th century technology. I have written a novel in which this scenario is presented, Wayward World. 

  • History of legal corruption in the United States
    by Jon Roland on April 22, 2017 at 09:33

    Having been asked for a quote of a prominent legal figure on prosecutorial corruption, especially the kind that results in wrongful convictions, it is difficult to find something pithy.There is nothing new about prosecutorial corruption. It is as old as prosecutors. We can see it in the prosecution of John Lilburne, in the prosecution of Penn and Mead, and the subsequent prosecution of the jury foreman, Edward Bushell, for acquitting them. Those are the classic cases. Everyone knew the prosecutions were corrupt, but you won’t find compact quotes to that, partly because the prosecutions failed.Corrupt prosecutions were a major issue in the British colonies, which led to many of the complaints in the Declaration of Independence.It was also an issue in prosecutions under the 1798 Alien and Sedition Acts, such as that of John Fries. But although unconstitutional, they were not called “corrupt” at the time.Prosecutorial corruption is part of the larger problems of judicial and legal corruption. From devotion to the ideals of justice in the Early Republic, there has been a steady and sometimes rapid decline in legal ethics in the United States, until now the entire profession has become corrupt in different ways and to varying degrees. It is difficult today for an honest lawyer to practice conscientiously and not be disbarred. Requiring lawyers to be members of the Bar is another way they are controlled for corrupt purposes.It is important to understand that the modern institution of the “public prosecutor” is relatively recent. Before about the 1890s most cases were prosecuted by private attorneys either hired to do it or appointed by the judge from among the lawyers locally available. This became too much a burden on them, so they sought to have a office of public prosecutor created that would be fully funded. The public wanted the elect the person who held that position, because they didn’t trust anyone who might appoint them. Seemingly a good idea, but the public mostly didn’t know enough about candidates for the office to select only those of good character. They wound up voting for those with the most convictions, regardless of how those convictions were obtained. We would have been better off if public prosecutors were selected at random.Originally grand juries were supposed to screen proposed prosecutions to weed out any corrupt ones, but grand juries became captured by public prosecutors, or in some states, beginning with California, reduced to a role as auditors of public administration.It didn’t help that many judges rose from the position of public prosecutor, and carried a prosecutorial bias with them.So now we get prosecutorial corruption that is massive. A new prosecutor in Dallas found that his predecessor has conspired with police to use bags of plaster of Paris as evidence of cocaine. He then tried to get most of the resulting convictions overturned. But he was exceptional.One prominent legal figure who has condemned legal corruption, and not just prosecutorial corruption, is Alan Dershowitz, in private conversation. Whether one could get him to make a statement on the record is another matter.Links:http://constitution.org/jury/pj/pj-us.htmhttp://constitution.org/jury/gj/gj-us.htm

  • Arrest Assange? For what?
    by Jon Roland on April 22, 2017 at 07:53

    CIA Director Mike Pompeo has announced that they have “found” a legal basis for arresting Julian Assange for his handling of classified information, and he seems to be supported in this position by Attorney General Jeff Sessions. Both men are constitutionally illiterate, and should never have been appointed to those positions.Some constitutional background on the Assange situation.First, there are only two bases for charging someone under the Espionage Act.1. Prosecution under the “contract” that government personnel are required to sign who get access to classified information. It consents to criminal prosecution for improper disclosure of such information. That is the usual ground cited for such prosecution. However, such a contract is a kind of oath, and violation of an oath is perjury of oath. But there is no law making perjury of oath a crime, nor does the Constitution grant congress the authority to pass such a statute. Moreover, criminal prosecution of perjury is a common law crime, and common law crimes are not permitted under the Constitution, as was correctly decided in the 1812 case of U.S. v. Hudson.There is also no authority to make conspiracy or complicity a crime. This was discussed in the Eleventh Congress and it was agreed that no authority existed.Even if the contract were to authorize criminal prosecution of the person who signed the contract, it would not apply to parties who did not, such as those who might receive or pass on such information. So the Act, if constitutional, would allow prosecution of Chelsea Manning but not Julian Assange.2. Persons can be prosecuted under the treason Clauses for giving “aid and comfort to an enemy”, by disclosing classified information, but the treason Clauses only apply to U.S. citizens, not foreign nationals. To Manning but not to Assange.It is not the First Amendment that protects Assange, but the Tenth. There is no constitutional authority to prosecute him for what he did.

  • Chemerinsky on judicial abuses
    by Jon Roland on April 21, 2017 at 13:03

    Many if not most of Chemerinsky’s complaints are valid, just misattributed. Judicial abuses are not a matter of conservative vs. progressive judges, as you point out, or of Art. III, which were corrected by thew 14th Amendment.The Eleventh Amendment, properly interpreted did not confer sovereign immunity on the states, and if it did the 14th overrode that. The Eleventh was about getting money judgments against states that could be collected by executing on assets of the judgment debtor’s choice, like a capital building. There can not be a constitutional bar against a state being sued. States must appropriate a claims fund for the payment of judgments upon application thereto, without relitigating the case in opposing payment. The same principle applies to official immunity, which should never be taken as a bar against suit. Nor should an official be immune for acts committed outside his authority, even if he is “on the job” at the time. The act can be lawful or unlawful from one penstroke to the next.- See more at: http://www.libertylawsite.org/2017/04/21/whining-about-article-iii/#comment-1537324

  • Religious liberty at the Supreme Court
    by programs@constitutioncenter.org on April 20, 2017 at 22:42

    Marci Hamilton of the University of Pennsylvania and Hannah Smith of the Becket Fund for Religious Liberty discuss the issues and best arguments in Trinity Lutheran Church of Columbia v. Comer. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Article I and the role of Congress
    by programs@constitutioncenter.org on April 13, 2017 at 19:13

    In a special event at Columbia University, David Pozen of Columbia and Nicholas Quinn Rosenkranz of Georgetown University discuss how to restore the separation of powers. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was edited by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Special thanks to Zach Morrison and the Columbia chapters of the American Constitution Society and the Federalist Society for their partnership in producing this event.

  • The history and constitutionality of the filibuster
    by programs@constitutioncenter.org on April 6, 2017 at 09:00

    Richard Arenberg of Brown University and Josh Chafetzof Cornell University discuss the history of the Senate filibuster and whether or not it should be eliminated. Continue today’s conversation on Facebook and Twitterusing @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Privacy, equality, and transgender students
    by programs@constitutioncenter.org on March 30, 2017 at 19:35

    Alexandra Brodksy of the National Women’s Law Center and Gary McCaleb of the Alliance Defending Freedom discuss whether Title IX or the Constitution bans discrimination on the basis of gender identity. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • The Gorsuch hearings and the future of the Constitution
    by programs@constitutioncenter.org on March 23, 2017 at 20:52

    Michael Ramsey of the University of San Diego and Eric Segall of Georgia State University discuss what the hearings reveal about Neil Gorsuch’s potential impact on the Supreme Court and constitutional law. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Property rights at the Supreme Court
    by programs@constitutioncenter.org on March 16, 2017 at 19:25

    David Breemer of the Pacific Legal Foundation and John Echeverria of Vermont Law School discuss the issues in a big case about the Fifth Amendment’s Takings Clause. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen. Special thanks to Tom Donnelly for hosting this week.

  • The constitutional legacy of Prohibition
    by programs@constitutioncenter.org on March 9, 2017 at 21:23

    Historians Lisa Andersen and Josh Zeitz explore the history and politics of Prohibition, including its impact on federal power and civil liberties. American Spirits: The Rise and Fall of Prohibition is now open at the National Constitution Center through July 16. Learn more at constitutioncenter.org. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • The future of federalism
    by programs@constitutioncenter.org on March 2, 2017 at 21:20

    In a special live event at Georgetown University, Josh Blackman of the South Texas College of Law in Houston and Peter Edelman of Georgetown discuss the fate of federalism in the Trump era. Special thanks to Clifton Fels and the Georgetown chapters of the Federalist Society and the American Constitution Society for their partnership in designing and producing a great event. Continue today’s conversation on Facebook and Twitterusing @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster of podcasts at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was edited by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Jeffrey Rosen answers your constitutional questions
    by programs@constitutioncenter.org on February 23, 2017 at 21:44

    The president and CEO of the National Constitution Center answers listener questions about sanctuary cities, presidential power, and more. Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr. Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. Today’s show was engineered by Jason Gregory and David Stotz. It was produced by Diana Allen and Nicandro Iannacci. Research was provided by Dan Meyer and Lana Ulrich. Special thanks to Tom Donnelly for serving as interlocutor. The host of We the People is Jeffrey Rosen.

  • Presidential succession and the 25th Amendment at 50
    by programs@constitutioncenter.org on February 16, 2017 at 19:00

    Akhil Reed Amar of Yale University and Norman Ornstein of the American Enterprise Institute explain how succession works and how it can be improved. It’s time for another edition of “Ask Jeff”! Submit your questions anonymously at bit.ly/askjeffpodcast or tweet them using #AskJeffNCC. Submissions close on Sunday, February 19. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the Peopleand our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Dan Meyer and Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • Should Neil Gorsuch be confirmed to the Supreme Court?
    by programs@constitutioncenter.org on February 9, 2017 at 21:49

    Michele Jawando of the Center for American Progress and John Malcolm of the Heritage Foundation discuss the judge’s record and potential to shape the Court. It’s time for another edition of “Ask Jeff”! Submit your questions anonymously at bit.ly/askjeffpodcast or tweet them using #AskJeffNCC. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • President Trump’s immigration order: Is it legal?
    by programs@constitutioncenter.org on February 2, 2017 at 19:11

    Peter Spiro of Temple University and Anil Kalhan of Drexel University explore the best arguments for and against the President’s controversial action on refugees and international travel. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Has President Trump violated the Emoluments Clause?
    by programs@constitutioncenter.org on January 26, 2017 at 21:32

    Brianne Gorod of the Constitutional Accountability Center and Andy Grewal of the University of Iowa discuss questions about the President’s business operations. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe toWe the Peopleand our companion podcast,Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • Offensive speech and trademarks at the Supreme Court
    by programs@constitutioncenter.org on January 19, 2017 at 18:48

    Deborah Gerhardt of the University of North Carolina, Ilya Shapiro of the Cato Institute, and Rebecca Tushnet of Georgetown University discuss Lee v. Tam, a big First Amendment case. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • The future of the regulatory state
    by programs@constitutioncenter.org on January 12, 2017 at 19:17

    Gillian Metzger of Columbia University and David Bernstein of George Mason University explain how President Trump, Congress, and the courts may challenge the executive agencies that govern our daily lives. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • A new look at America’s founding
    by programs@constitutioncenter.org on January 5, 2017 at 21:50

    Michael Klarman of Harvard Law School and Patrick Spero of the American Philosophical Society reassess the debates that defined the Founding era. This program was presented live at the Constitution Center on November 14, 2016. You can watch the program on Constitution Daily or at constitutioncenter.org. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Please subscribe to We the Peopleand our companion podcast,Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and David Stotz, and edited by Jason Gregory. It was produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • President Obama’s constitutional legacy
    by programs@constitutioncenter.org on December 30, 2016 at 01:13

    Journalists and scholars give their take on the Obama presidency. The speakers are Jonathan Chait of New York magazine, Michael Days of The Philadelphia Daily News, David French and Ramesh Ponnuru of National Review, and Michael Gerhardt, scholar-in-residence at the Constitution Center. This program was presented live at the Constitution Center on November 30, 2016, in partnership with the National Review Institute. You can watch the program here on Constitution Daily or at constitutioncenter.org. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and David Stotz, and edited by Jason Gregory. It was produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Akhil Reed Amar on the Bill of Rights
    by programs@constitutioncenter.org on December 22, 2016 at 20:03

    Akhil Reed Amar of Yale University explains the history and importance of the Bill of Rights on its 225th anniversary. This program was presented live at the National Constitution Center on December 15, 2016, as part of the annual Bill of Rights Day Book Festival. You can watch all of the day’s conversations on Constitution Daily or at constitutioncenter.org. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast. Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and David Stotz, and edited by Jason Gregory. It was produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The Bill of Rights at 225
    by programs@constitutioncenter.org on December 15, 2016 at 22:21

    Historians Carol Berkin and David O. Stewart reflect on the history and legacy of the Bill of Rights as it turns 225 years old. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Is this the end of partisan gerrymandering?
    by programs@constitutioncenter.org on December 8, 2016 at 21:06

    Nicholas Stephanopoulos of the University of Chicago and Michael Morley of Barry University discuss a big Wisconsin case that could reach the Supreme Court. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • Monroe Doctrine
    by Constitution.com ???????? on December 1, 2016 at 22:38

    The following article, Monroe Doctrine, was first published on The Constitution • Constitution.com. By the end of the 19th century, the Monroe Doctrine was seen as a defining moment in the foreign policy of the United States and is one of its longest-standing tenets. Continue reading: Monroe Doctrine …

  • Should we abolish the Electoral College?
    by programs@constitutioncenter.org on December 1, 2016 at 20:25

    Alex Keyssar of Harvard University and James Ceaser of the University of Virginia explore the history and purpose of the Electoral College. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People, and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen.

  • The state of campus free speech
    by programs@constitutioncenter.org on November 24, 2016 at 08:00

    Scholars and activists explore the future of free expression at U.S. universities. The speakers are PEN America Executive Director Suzanne Nossel, First Amendment expert Floyd Abrams, University of Missouri student activist Storm Ervin, civil rights activist DeRay Mckesson, and University of Chicago scholar Geoffrey Stone. This live program was presented in partnership with PEN America on November 17, 2016. This show was engineered by David Stotz and edited by Jason Gregory. It was produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Go to bit.ly/wethepeoplepodcast to share your feedback. The survey closes November 30. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more.

  • Donald Trump and the Supreme Court
    by programs@constitutioncenter.org on November 17, 2016 at 22:18

    Dahlia Lithwick of Slate and Jonathan Adler of Case Western Reserve University explain how new appointments to the Court could change constitutional law. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Go to bit.ly/wethepeoplepodcast to share your feedback. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Looking ahead to the Trump presidency
    by programs@constitutioncenter.org on November 10, 2016 at 22:04

    Michael Dorf of Cornell University and Ilya Shapiro of the Cato Institute discuss how the Constitution will restrain or empower the new President. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Go to bit.ly/wethepeoplepodcastto share your feedback. Please subscribe toWe the Peopleand our companion podcast,Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The Fourteenth Amendment and equality under the law
    by programs@constitutioncenter.org on November 3, 2016 at 21:09

    Elizabeth Wydra of the Constitutional Accountability Center and Earl Maltz of Rutgers University discuss how Hillary Clinton and Donald Trump approach abortion, same-sex marriage, affirmative action, and more. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe toWe the PeopleandLive at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The 95 Theses
    by Constitution.com ???????? on October 31, 2016 at 00:52

    The following article, The 95 Theses, was first published on The Constitution • Constitution.com. As written by Martin Luther and nailed to the church door in Wittenberg on October 31st, 1517. Continue reading: The 95 Theses …

  • The Fourth Amendment and civil liberties
    by programs@constitutioncenter.org on October 27, 2016 at 20:54

    Tracey Meares of Yale University and John Stinneford of the University of Florida explore how Hillary Clinton and Donald Trump approach policing and privacy. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen. Special thanks to Tom Donnelly for hosting this week.

  • The Second Amendment and gun rights
    by programs@constitutioncenter.org on October 20, 2016 at 20:42

    Joseph Blocher of Duke University and attorney Alan Gura discuss how Hillary Clinton and Donald Trump may enforce or undermine the right to bear arms. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich. The host of We the People is Jeffrey Rosen. Special thanks to Tom Donnelly for hosting this week.

  • The First Amendment and the freedom of expression
    by programs@constitutioncenter.org on October 13, 2016 at 20:54

    Erwin Chemerinsky of the University of California, Irvine, and Bradley Smith of Capital University explore how Hillary Clinton and Donald Trump may protect or threaten the freedoms of speech and press. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Article III and the future of the Supreme Court
    by programs@constitutioncenter.org on October 6, 2016 at 15:48

    Daniel Farber of the University of California, Berkeley, and Barry McDonald of Pepperdine University discuss how Hillary Clinton and Donald Trump would appoint judges and change constitutional law. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Special thanks to Matt Stanford and Joe Spence at the University of California, Berkeley, for arranging this event.

  • What to expect at the Supreme Court this year
    by programs@constitutioncenter.org on September 29, 2016 at 21:12

    John Malcolm of the Heritage Foundation and Michele Jawando of the Center for American Progress discuss recent news from the high court and cases to watch in the new term. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The Judiciary Act of 1789
    by Constitution.com ???????? on September 23, 2016 at 22:25

    The following article, The Judiciary Act of 1789, was first published on The Constitution • Constitution.com. An Act to establish the Judicial Courts of the United States on September 24th, 1789. Continue reading: The Judiciary Act of 1789 …

  • Article V and constitutional change
    by programs@constitutioncenter.org on September 22, 2016 at 20:37

    Michael Rappaport of the University of San Diego and David Strauss of the University of Chicago discuss how Hillary Clinton and Donald Trump could change the Constitution. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Article II and the powers of the President
    by programs@constitutioncenter.org on September 15, 2016 at 19:33

    Michael Ramsey of the University of San Diego and Christopher Schroeder of Duke University discuss how Hillary Clinton and Donald Trump understand the powers and duties of the nation’s chief executive. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The Constitution at Guantánamo Bay
    by programs@constitutioncenter.org on September 8, 2016 at 17:17

    John Yoo of the University of California, Berkeley, and Karen Greenberg of Fordham University discuss the legal status of detainees and prospects for the prison’s closure in the final months of the Obama administration. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by David Stotz and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • America’s biggest constitutional crises
    by programs@constitutioncenter.org on September 1, 2016 at 20:21

    Annette Gordon-Reed of Harvard University, Sean Wilentz of Princeton University, and political journalist Sidney Blumenthal explore how Presidents have confronted the nation’s gravest constitutional crises. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Jeffrey Rosen answers your questions about constitutional interpretation
    by programs@constitutioncenter.org on August 25, 2016 at 19:56

    Jeffrey Rosen, president and CEO of the National Constitution Center, answers your questions about progressive originalism, Justice Clarence Thomas, the Civil War, and more. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and David Stotz. It was produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • The history and meaning of the 19th Amendment
    by programs@constitutioncenter.org on August 18, 2016 at 20:04

    Gretchen Ritter of Cornell University and Susan Ware explore the history of women’s rights and the fight to extend voting rights to all women. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen. Many thanks and best wishes to Josh Waimberg, who leaves the Center this month.

  • Voting rights in the courts
    by programs@constitutioncenter.org on August 11, 2016 at 19:09

    Hans von Spakovsky of the Heritage Foundation and Wendy Weiser of the Brennan Center for Justice explore recent court rulings about the right to vote in America. Get the latest constitutional news, and continue the conversation, on Facebook and Twitter. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and our companion podcast, Live at America’s Town Hall, on iTunes, Stitcher, or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at Panoply.fm. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Josh Waimberg and Tom Donnelly. The host of We the People is Jeffrey Rosen. Many thanks and best wishes to Danieli Evans, who leaves the Center this month.

  • The presidency of George Washington
    by programs@constitutioncenter.org on August 4, 2016 at 20:34

    Akhil Reed Amar of Yale University, Edward Larson of Pepperdine University, and Douglas Bradburn of George Washington’s Mount Vernon explore the constitutional legacy of our nation’s first President. Get the latest constitutional news, and continue the conversation, on our Facebook page and Twitter feed. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at iTunes.com/Panoply. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Kevin Kilbourne and edited by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Lana Ulrich and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • A constitutional history of the Democratic Party
    by programs@constitutioncenter.org on July 28, 2016 at 19:44

    Political journalist Sidney Blumenthal, Sean Wilentz of Princeton University, and William Forbath of the University of Texas explore the history of the Democrats through a constitutional lens. Get the latest constitutional news, and continue the conversation, on our Facebook page and Twitter feed. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out the full roster at iTunes.com/Panoply. Despite our congressional charter, the National Constitution Center is a private nonprofit; we receive little government support, and we rely on the generosity of people around the country who are inspired by our nonpartisan mission of constitutional debate and education. Please consider becoming a member to support our work, including this podcast. Visit constitutioncenter.org to learn more. This show was engineered by Jason Gregory and produced by Nicandro Iannacci. Research was provided by Josh Waimberg and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • A constitutional history of the Republican Party
    by programs@constitutioncenter.org on July 21, 2016 at 21:02

    David French of the National Review and Michael Gerhardt of the University of North Carolina explore the history of the GOP through a constitutional lens. Get the latest constitutional news, and continue the conversation, on our Facebook page and Twitter feed. We want to know what you think of the podcast! Email us at editor@constitutioncenter.org. Please subscribe to We the People and Live at America’s Town Hall on iTunes or your favorite podcast app. We the People is a member of Slate’s Panoply network. Check out all of our sibling