Constitution and Government

  • Data and the Human Side of Criminal Justice
    on December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    It was a big improvement for permitting and other forms of service delivery, but it’s already outdated.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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

    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 December 2, 2020 at 21:19

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

  • Development Incentives That Make Sense
    on December 2, 2020 at 21:19

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

  • Missouri lawmakers itching to cuff local governments’ emergency powers in 2021
    by By John Haughey | The Center Square on December 3, 2020 at 02:37

    (The Center Square) — The Missouri Senate Wednesday adopted a $1.27 billion supplemental budget and previewed proposed 2021 legislation seeking to cuff local governments’ emergency powers.

  • More than $400 million in unemployment payments went to California inmates this year
    by By Bethany Blankley | The Center Square on December 3, 2020 at 00:06

    (The Center Square) – The state of California sent roughly $400 million in fraudulent unemployment payments to state prisoners – nearly triple the amount disclosed last week, after nine district attorneys and a U.S. Attorney announced the state was impeding…

  • Conservative lawmakers call for special session of Pennsylvania Legislature to consider election issues
    by By Delphine Luneau | The Center Square on December 3, 2020 at 00:04

    (The Center Square) – A group of conservative Pennsylvania lawmakers have embarked on an attempt to launch a special session of the Legislature – a move that would require convincing either the Democratic governor or many of their more moderate…

  • Washington lawmakers advised to limit bills in party email
    by By Tim Gruver | The Center Square on December 2, 2020 at 23:15

    (The Center Square) — Washington Democratic lawmakers have advised their party peers to stick to bills centered around the COVID-19 pandemic, jobs, racial justice, and climate change, according to an internal email.

  • Video || Michigan poll worker describe biased ballot counting favoring Biden
    by Keith Koffler on December 2, 2020 at 23:05

    She just talks about a couple of cases of it, including one in which the ballot was marked for both candidates, but multiple poll workers were inclined to give it to Joe Biden. What she makes clear is that there was a generalized bias favoring Biden.

  • Republican lawmaker says Pennsylvania health officials withholding COVID-19 data
    by By Christen Smith | The Center Square on December 2, 2020 at 22:58

    (The Center Square) – A York County Republican lawmaker is saying that his request for the COVID-19 data that shaped the state’s lockdown strategy remains unfulfilled as he appeals to the Office of Open Records for help.

  • Florida GOP official: Third-party candidates help Republicans win ‘many’ elections
    by By John Haughey | The Center Square on December 2, 2020 at 22:47

    (The Center Square) – Internal jostling for leadership of Florida’s Republican Party has shaken loose a revelation bolstering allegations the GOP regularly runs third-party candidates funded by “dark money” shadow groups to win elections.

  • Maine governor pitches offshore wind power project, but fishermen see drawbacks
    by By Christian Wade | The Center Square on December 2, 2020 at 22:46

    (The Center Square) – Gov. Janet Mills is moving ahead with an ambitious green power project to create the nation’s first offshore wind power system devoted solely to research.

  • Brown’s budget proposal could undercut substance abuse services Oregon voters approved in November
    by By Tim Gruver | The Center Square on December 2, 2020 at 22:45

    (The Center Square) — Oregon became the first state in the country to decriminalize drug possession in November, but its promises of rehabilitative services are now in doubt after Gov. Kate Brown’s proposed budget was released this week.

  • Republicans predict more revelations in ComEd bribery scheme as not guilty pleas trigger discovery process
    by By Greg Bishop | The Center Square on December 2, 2020 at 22:45

    (The Center Square) – All four defendants pleaded not guilty to bribery charges in the ComEd scandal while Illinois House Republicans predicted more revelations in the scheme.

  • Mackinac Center granted FOIA docs six month later after filing lawsuit against Michigan agency
    by By Bruce Walker | The Center Square on December 2, 2020 at 22:45

    (The Center Square) – A Freedom of Information request has been fulfilled six months after the Mackinac Center Legal Foundation filed it but just weeks after the think tank took legal action against the Michigan Department of Licensing and Regulatory…

  • Ongoing drought making life difficult for New Hampshire’s farmers
    by By Elyse Kelly | The Center Square on December 2, 2020 at 22:34

    (The Center Square) – As New Hampshire’s growing season closes out, much of the state still finds itself in extreme drought conditions, and now the U.S. Department of Agriculture has declared the drought a disaster for all the state’s 10…

  • Pennsylvania governor signs executive order to better manage flash flood damage
    by By Christen Smith | The Center Square on December 2, 2020 at 22:28

    (The Center Square) – Pennsylvania Gov. Tom Wolf said Wednesday the state must bolster its infrastructure funding as flooding wreaks havoc on homeowners and small businesses unable to access federal assistance.

  • Louisiana to get about 80K doses of COVID-19 vaccine in first two weeks they’re available
    by By David Jacobs | The Center Square on December 2, 2020 at 22:27

    (The Center Square) – Officials expect Louisiana to receive about 40,000 doses during the first week of COVID-19 vaccine distribution, followed by another 40,000 the following week, Gov. John Bel Edwards said Wednesday.

  • Analyst: New Mexico closing grocery stores over COVID make state’s food deserts worse
    by Elyse Kelly / The Center Square on December 2, 2020 at 22:26

    (The Center Square) – As New Mexico gets deeper into a second major shutdown, the New Mexico Department of Health (NMDH) has began closing grocery stores, making it even harder for people to buy essentials.

  • Louisville creates new civilian review for police
    by By Steve Bittenbender | The Center Square on December 2, 2020 at 22:12

    (The Center Square) – Louisville Mayor Greg Fischer on Wednesday signed off on an ordinance that creates an independent civilian review board and an inspector general to review claims against the city’s police department.

  • New Jersey businesses, on top of miserable 2020, have many worries about 2021, survey shows
    by By Kim Jarrett | The Center Square on December 2, 2020 at 22:06

    (The Center Square) – A majority of New Jersey businesses surveyed by the New Jersey Business and Industry Association ranked the state’s economy as fair or poor, and 40% said they expected it to be worse during the first six…

  • Illinois see highest daily death toll, though some reported new deaths could be from holiday lag
    by By Kevin Bessler | The Center Square on December 2, 2020 at 21:57

    (The Center Square) – Illinois marked a grim milestone in the coronavirus pandemic Tuesday.

  • Northam expects 70,000 COVID-19 vaccine doses by mid-December in Virginia
    by By Tyler Arnold | The Center Square on December 2, 2020 at 21:50

    (The Center Square) – Virginia is expected to receive about 70,000 doses of a COVID-19 vaccine as early as mid-December, which will be distributed to health care workers and long-term care facility residents, Gov. Ralph Northam announced Wednesday.

  • Mark Kelly sworn in as Arizona’s junior U.S. senator
    by By Cole Lauterbach | The Center Square on December 2, 2020 at 21:47

    (The Center Square) – Senate Republicans now have the narrowest of majorities in Washington D.C. after Arizona U.S. Sen. Mark Kelly was sworn into office Wednesday.

  • Cuomo anticipates spending as much as $1 billion on COVID-19 vaccination plans
    by By Steve Bittenbender | The Center Square on December 2, 2020 at 21:40

    (The Center Square) – When New York starts receiving doses of the COVID-19 vaccine later this month, state officials will give priority access to nursing home patients and staff and health care workers, Gov. Andrew Cuomo said Wednesday.

  • Scholar Exchange: Article I: How Congress Works (High school and college level)
    by National Constitution Center on December 2, 2020 at 20:19

    In this session, students explore Article I of the Constitution, which defines the powers of Congress. This class examines constitutional debates involving the legislative branch from the Constitutional Convention to the most recent term.

  • Georgia secretary of state probing Stacey Abrams group for signing up dead voters
    by Keith Koffler on December 2, 2020 at 19:15

    Dying is sad, but it is at least comforting to know that if you’re a Democrat, you can still vote. I mean, I’m all for livening up the post-death experience. But I don’t think this is what the Founders had in mind. According to Fox News: “Georgia Secretary of State Brad Raffensperger has launched investigations … Georgia secretary of state probing Stacey Abrams group for signing up dead voters Read More »

  • Scholar Exchange: Article I: How Congress Works Middle School Session
    by National Constitution Center on December 2, 2020 at 18:04

    In this session, students explore Article I of the Constitution, which defines the powers of Congress. This class examines constitutional debates involving the legislative branch from the Constitutional Convention to the most recent term.

  • Video || Baby face Trump savages the press
    by Keith Koffler on December 2, 2020 at 16:19

    At least he’s kind of cute. Here’s what lecturing little Barack Obama would have been during his Seventh Grade class presentation.

  • CNN discusses helping Biden by limiting coverage of Trump post-election comments
    by Keith Koffler on December 2, 2020 at 15:12

    Project Veritas apparently got phoned into private high-level CNN meetings that included network president Jeff Zucker. In this one, ostensibly neutral CNN correspondent Jamie Gangel suggests NOT covering the president of the United States too much, lest it harm the Biden transition. Maybe she should be on the Biden transition instead of working to a … CNN discusses helping Biden by limiting coverage of Trump post-election comments Read More »

  • Whose Immigration Law Is it?
    by Guest Blogger on December 2, 2020 at 14:30

    For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).Shalev RoismanAdam Cox and Cristina Rodríguez have written a monumental book in The President and Immigration Law.  The book combines a rich historical account, a descriptive institutional account, and a novel and insightful analytic framework that diagnoses the current state of affairs, normatively assesses it, and plots a way forward.  I could not recommend it more highly. Below I provide a brief summary of the book and then ask two questions about whether the book undersells the President in some ways and oversells her in others.The thrust of the book is geared at countering what Cox and Rodríguez label the “The Conventional Wisdom” in immigration law, which is the notion that Congress—not the President—has primary control over immigration policy. [5] As Cox and Rodríguez show, this conventional story does not accurately describe American immigration policy since the Founding.  To the contrary, for almost the first hundred years of the country, federal immigration policy was shaped primarily by the President using his foreign affairs powers.  And, while Congress has systematically regulated the immigration space since then, the President’s role has remained central. How so is one of Cox and Rodríguez’s primary insights. Because half the noncitizen population in the United States—approximately 11 million people—is present unlawfully, perhaps the chief question of immigration policymaking today is not who is here lawfully, but who should be prioritized for removal. [8] The decisions about whom to focus enforcement efforts on thus become as important as what the laws are.  This “shadow system” results from what they call “de facto delegation”—Congress has implicitly delegated broad power over immigration to the President by virtue of this vast enforcement discretion. [105]Given the breadth of the President’s power, Cox and Rodríguez argue the system is better conceptualized as one with two principals, rather than the standard principal-agent framework thought to govern congressional-executive relations in immigration. [193, 207-10]. They defend the normative desirability of such a two principal framework and argue that the President ought not look to Congress to guide enforcement discretion. Congress, they argue, has not said anything coherent about enforcement priorities and it shouldn’t try to, in any event, because enforcement decisions are better made by the President. [200-01, 207-210].Cox and Rodríguez conclude with concrete prescriptions, focusing primarily on ending the “shadow system, and replacing the system of de facto delegation with one of de jure delegation that gives the President explicit powers to admit people legally—a fix that would remedy the current imbalance in immigration law, whereby the President has power to remove but not to admit. [244-45]The summary above is admittedly oversimplified. The book is infallibly nuanced and conscious of costs, even when finding that benefits might outweigh them. And there is much more in the book that I have not mentioned, including a rich descriptive account of internal executive branch bureaucratic dynamics and a discussion of the proper role for courts in ensuring executive branch policy deliberation and rationality. Meanwhile, the epilogue calls for a new “political and moral vision for immigration and the polity,” focusing on “openness, dynamism, and humanitarianism,” that is worth reading in full. (239, 247)With this necessarily incomplete summary of the book laid out, I’ll pose two questions that lingered with me after reading it.(1)   Whose Immigration Law Is it?While so much of the book is framed around reminding us (convincingly) of the President’s power in immigration law, one still gets the sense that it is first and foremost Congress’s domain.  This seems implicit in the “de facto delegation” framing as well as in the prescriptive section calling for more “de jure delegation” to the President.  Both frameworks position Congress in the driver’s seat, with the ability to give power as it chooses to the President.  But, after reading the book, I couldn’t help but wonder if the case for the President’s power over immigration law might not go even further.To start, it is worth noting a basic tension in the book’s framing of the field as simultaneously one of “de facto delegation” and one with “two principals.”  “Delegation” typically calls to mind a situation where one actor has power that it can lend, or “delegate,” to another. A classic two-principals model, on the other hand, conceives of two actors having power independent of each other.  [fn 1] What I’d like to explore here is whether it would be fruitful to take the classic two principals framing even further in immigration law.A conventional two principals model will often lead to debates about where one principal’s power ends and the other’s begins. For example, in the constitutional war powers arena, both Congress and the President have independent sources of authority stemming from, inter alia, the Declare War Clause in Article I, the Commander in Chief Clause in Article II, and so on.  The key questions in the field, which is perhaps the preeminent two-principals area in constitutional law [196], are about which branch has power over what.  [fn 2]  If we run with such a two principals model in immigration law, then, we might start asking questions geared more explicitly at determining what parts of immigration law are Congress’s and which are the President’s. This might shed light on the source of what seem like fairly basic immigration laws today. For example, where precisely does Congress’s power to regulate who can work legally in the United States come from? Textually, it doesn’t flow intuitively from the Naturalization Clause. Perhaps it is grounded in the domestic or foreign commerce clause?  Or perhaps it flows from the “plenary power” doctrine?  But, as Cox and Rodríguez show, alluding to “plenary power” does not resolve the question of whether the power inheres in Congress or the President—it is a doctrine created to resolve vertical, not horizontal, separation of powers questions. [34] Thinking through which powers each principal possesses and where they come from might thus help resolve questions about where fundamental immigration powers reside. (Here it is worth noting that I am an outsider to the immigration law field, so I apologize if this particular question has an obvious answer).The inquiry into which branch has power over what might seem purely academic, but it is not hard to imagine a future President rediscovering her inherent constitutional authority over immigration law in the face of continued congressional gridlock. As Cox and Rodríguez show, there would be significant historical precedent for this. For example, President Truman used informal diplomatic agreements to admit Mexican workers after congressional authorization lapsed for the Bracero program, which itself began through an informal international agreement by President Roosevelt. [42, 48] And Presidents have used formal Article II treaties to grant even more substantial rights to noncitizens—guaranteeing the same “privileges, immunities, and exemptions in respect to travel or residence” as Americans for Chinese immigrants, and the same “privileges, liberties, and rights,” as Americans for Japanese immigrants. [26, 37].  Such formal treaties would require Senate approval, but one can imagine a President, who is co-partisan with the Senate but not the House, being tempted to use such authority. However it might arise, if the President does try to use her inherent constitutional authority over immigration in a way that conflicts with congressional policy, it would be good to know who validly has power over what.To be clear, I am not suggesting that presidential attempts to use inherent authority in the immigration field will (or ought to) happen. And I confess it still seems intuitive that the federal immigration power is primarily Congress’s. But Cox and Rodríguez’s account does much to destabilize this intuition. The result is that, even after reading the book, I struggled to understand where Congress’s power ends and where the President’s begins.  Although teasing out an exact dividing line is likely impossible, there might nonetheless be value in thinking more about which powers belong to which branch. Doing so might help us better understand where federal immigration power comes from, who is in charge, and who might win the battles over its control going forward.(2)   Should Congress Have a Role in Enforcement?While above I questioned whether the President might have an even greater role in immigration law writ large, I wonder if the same could be said of Congress in the realm of enforcement discretion.  Cox and Rodríguez argue against attempts to ground executive enforcement priorities in Congress’s will for two reasons: First, they argue Congress has not actually set forth any coherent views on enforcement priorities in immigration, and, second, that the executive branch is better equipped to make such decisions in any event. [129, 198-200] Although I defer to them on the first point, I’d like to explore the second a bit further.Cox and Rodríguezdefend the notion that the executive branch is better positioned to determine enforcement priorities for a number of reasons relating to the executive’s ability to address changed circumstances or emergencies, as well as to further responsiveness, accountability, and deliberation goals. [207-10] But their primary justification is epistemic. They argue that because of inherent uncertainty in legislation we should “want an Executive Branch with the power to manage a legal regime based on its own judgment forged through its experience overseeing that regime. Indeed, the informational benefits of the Executive typically can be acquired only in a dynamic way, when executive branch officials have authority to make decisions subsequent to congressional policymaking and in the absence of direction from Congress.” [207]   While I do not doubt the executive’s general epistemic advantages here, it is not clear to me that all enforcement priorities will be heavily dependent on such new information.  For example, it would seem facially legitimate for Congress to pass a statute calling for the executive to prioritize keeping families together, removing undocumented people with serious criminal offenses, and deprioritizing removing people who were brought here through no fault of their own. (These track some of the values the Obama administration derived from Congress to justify its deferred action programs).  Such enforcement priorities seem more value-driven and less sensitive to new information, but nonetheless legitimate.In short, although enforcement decisions based on changed circumstances, emergencies, or the development of the regulatory regime are likely better made by the executive, there might still be a legitimate role for enforcement priorities based on long-run values that are less sensitive to additional information. If so, Congress may well have a role to play in enforcement discretion.***These reactions are preliminary and do not in any way take away from how terrific Cox and Rodríguez’s book is. I learned a great deal from it and was inspired to think much more deeply about immigration law, the President, enforcement discretion, executive branch bureaucracy and governance, how best to utilize judicial review, and much more. Scholars in any of these fields will learn from this book. I hope the reactions above will serve as food for thought going forward, but my primary reaction to the book can be summed up as follows:  You should read it.  [fn 1]: In theory, a two principals model could result from broad delegation from one principal to another. But, for the reasons discussed, I think there might be value in pushing a more classic two principals model focusing on each principal’s independent powers here.[fn 2]: One could conceive of the modern President’s war powers as resulting from congressional acquiescence and thus perhaps it could be described as resulting from de facto delegation, but that is not, in my view, the dominant paradigm.Shalev Roisman is an Associate Professor of Law at the University of Arizona James E. Rogers College of Law. You can reach him by e-mail at sroisman at arizona.edu.

  • Judicial Watch: Records Show Obama DHS Scanned Georgia Election Site in 2016
    by fvanloon on December 2, 2020 at 14:03

    Docs Suggest Activity Logs of Incidents Overwritten (Washington, DC) Judicial Watch announced today that it received 243 pages of records from the Department of Homeland Security (DHS) that show the Obama administration’s scanning the election systems of Georgia, Alaska, Oregon, Kentucky and West Virginia in 2016. This activity prompted a letter from then-Georgia Secretary of The post Judicial Watch: Records Show Obama DHS Scanned Georgia Election Site in 2016 appeared first on Judicial Watch.

  • On this day: The Senate censures Joseph McCarthy
    by NCC Staff on December 2, 2020 at 10:00

    December 2 is a landmark day in Senate history, marking that chamber’s historic censure of Joseph McCarthy for his conduct during public hearings.

  • Trump Schedule || Wednesday, December 2, 2020
    by Keith Koffler on December 2, 2020 at 04:02

    12:30 pm || Lunch with Secretary of State Pompeo All times Eastern

  • How did Shakespeare influence the making of America?
    by National Constitution Center on December 1, 2020 at 21:57

    Echoes of Shakespeare can be heard in some of the most fundamental documents in American history, including the Declaration of Independence and the U.S. Constitution. In this America’s Town Hall clip, CEO Jeffrey Rosen moderates a discussion with one of America’s leading authorities on Shakespeare, Barry Edelstein of The Old Globe; Kevin Hayes, author of Shakespeare and the Making of America; and Lucas Morel of Washington and Lee University.

  • Video || Biden walking with his orthopedic boot
    by Keith Koffler on December 1, 2020 at 19:52

    Between the mask and the boot, it looks like his limo has dropped him off to go knock on death’s door.

  • Three Members of Congress Star in Forum with Terror Financiers, Anti-Semites
    by Irene on December 1, 2020 at 15:55

    Congress should reprimand three of its members for participating with financiers of Islamic terrorism in a conference sponsored by an anti-Semitic group with deep ties to Hamas, the Palestinian extremist group that calls for eradicating the state of Israel. The legislators who joined forces with the extremists over the Thanksgiving weekend include Ilhan Omar and The post Three Members of Congress Star in Forum with Terror Financiers, Anti-Semites appeared first on Judicial Watch.

  • Video || Jerry Nadler shits himself live
    by Keith Koffler on December 1, 2020 at 15:46

    I’m sorry, but I need to follow all the news, wherever it takes me. Yes, someone added the sound effect.

  • The Great Suppression
    by fvanloon on December 1, 2020 at 15:30

    “Like in any oppressive system, you have to be careful about what you say and how you say it,” Tom Fitton remarked.  Today’s social media censorship is an era of “great suppression,” Fitton stated in the Weekly Update. With social media platforms allegedly cracking down on conservative pages across the network, Fitton and Judicial Watch The post The Great Suppression appeared first on Judicial Watch.

  • Trump campaign to sue in Wisconsin over “abuse” of absentee voting
    by Keith Koffler on December 1, 2020 at 15:10

    Of course, the mainstream media has stopped covering these suits. What if we find out in six months that there was indeed widespread fraud? There certainly seems to be plenty of prima facie evidence that a lot was amiss. If Biden had lost, there would be daily articles in the New York Times and the … Trump campaign to sue in Wisconsin over “abuse” of absentee voting Read More »

  • Fitton: Happy Thanksgiving!
    by fvanloon on December 1, 2020 at 14:45

    From Tom Fitton’s Article for Breitbart: Each year I like to remind our supporters to recall what life was like for the Pilgrims who arrived on these shores in December of 1620. As the Plimoth Plantation describes: Many of the colonists fell ill. They were probably suffering from scurvy and pneumonia caused by a lack of shelter The post Fitton: Happy Thanksgiving! appeared first on Judicial Watch.

  • Presidential Immigration Federalism
    by Guest Blogger on December 1, 2020 at 14:30

    For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).Pratheepan Gulasekaram             In The President and Immigration Law, Adam Cox and Cristina Rodriguez provide a compelling historical and contemporary account of the centrality of the president to immigration law. My contribution to this symposium accepts the premise that the President is a co-principal in immigration lawmaking, and focuses instead on the relationship between that co-principal and the co-sovereigns in our federalist system. I argue that recent developments at the Supreme Court complicate the immigration federalism story the authors tell. In Sidelining the States (Chapter 5), Cox and Rodriguez begin with the now well-established premise that states and localities are indispensable parts of immigration policymaking. Over the past few decades, federal laws and executive enforcement practices have so integrated states and localities into the enforcement system that a robust federal enforcement program likely is unachievable without them. Because critical aspects of the deportation scheme depend on subfederal participation, the executive must effectively manage and moderate those relationships to instantiate a unitary and coordinated enforcement vision. Fundamentally, Cox and Rodriguez’s model of presidential interaction with states and localities assumes an integrated mode of federalism, in which the federal executive’s goals are served by maintaining connectedness with states and localities. Doing so permits the president to use a variety a legal and political tools to intervene in, and shape, the inevitable participation of subfederal governments. For example, in a connected model of immigration federalism, presidents are more likely to respond to subfederal resistance with negotiation, publicity campaigns, modifications to administrative programs, and financial incentives to cajole subfederal cooperation, rather than with direct or heavy-handed confrontation. This form of federalism also means that the executive might find ways to harness state and local enthusiasm for enforcement while dictating the terms and level at which states and localities might participate. A notable example is Secure Communities, an executive branch program which automatically forwards arrest information from local police to federal immigration authorities when local authorities access federal criminal databases. In this way, the federal executive leverages the immense informational and manpower advantages of local police departments, while limiting the discretion of local officers. Local officers, of course, still retaindiscretion over who to arrest, but the ultimate immigration enforcement decision remains solely in the hands of federal officials. In addition to co-opting state and local participation, Cox and Rodriguez note that a presidential administration may quash state enforcement-minded efforts that stray too far from the executive’s prerogatives. Showcased most prominently in Arizona v. United States (2012), presidential administrations have used litigation to curtail the excesses of enforcement-minded state policies. In this account of immigration federalism, a president’s preferences matter a great deal. In Arizona, the Obama administration took the rare and unusual step of suing the state for its notorious immigration enforcement scheme, SB 1070, and thereby brought the heft of the federal government to bear against the state law. That influence was evident in the majority opinion, which invalidated part of the state law on the theory that it interfered with the president’s enforcement priorities. The operative concern for the Court was the executive’s immigration policy, and not Congress’ written code. Arizona, however, was highly path-dependent. For example, a John McCain administration may not have sued his home state in 2010, given the GOP’s hard-right turn on immigration during the 2000s, and McCain’s own support for SB 1070 during his primary campaign. Undoubtedly, private plaintiffs and advocacy organizations would have (and did) sue the state, but the weight of the federal government pressing a supremacy claim would have been absent. Without the federal executive arguing that the state law undermined a federal agency’s prerogatives, a closely-divided Court may have been more willing to allow enforcement redundancy in immigration as it does in other regulatory areas. More clearly, had SB 1070 been enacted during a Trump Presidency, the administration undoubtedly would have encouraged the state’s effort. One of President Trump’s first acts in office was to discard the enforcement memoranda implemented by the Obama administration (and relied upon by the Arizona majority). Trump unleashed agents to enforce immigration law maximally, unencumbered by the priority categories used by his predecessors. As his Acting ICE Director put it, “we’re going to enforce the laws on the books without apology.” Arizona’s SB 1070, which mirrored federal statutory definitions and would have funneled more individuals into the federal deportation machine, served that goal. Either as a function of legislative primacy alone, or as a function of executive support for legislative primacy in defining enforcement parameters, the Court may have been much more willing to protect the state’s authority to craft its own immigration policy. The Supreme Court’s 2020 ruling in Kansas v. Garcia (post-dating Cox and Rodriguez’s study) turns these counterfactual suppositions about Arizona into doctrinal reality. Less than a decade after Arizona, the Kansas majority declined to preempt the state’s prosecution, under state fraud and identity-theft statutes, of noncitizens accused of using false identity information to procure employment. What Kansas and Arizona shared, however, was an interest in the federal executive’s preference for states’ involvement. Justice Alito’s majority opinion conspicuously notes that DOJ officials encouraged Kansas’ prosecutions and that the Solicitor General’s office supportedthe state’s position before the Supreme Court. The extent to which the outcome may have depended on the DOJ’s position was not lost on Justice Breyer. His dissent pointedly cited both the DOJ’s prior position in Arizona urging a broad preemptive scope for federal employer sanctions laws, and the DOJ’s amicus filingurging federal exclusivity over unauthorized employment in a 2016 Ninth Circuit case. In some ways, the Court’s focus on the executive’s shifting position might strengthen Cox and Rodriguez’s presidential immigration federalism thesis. More complicating however, is the discussion in Kansas that might be read as abandoning completely those aspects of immigration federalism that depend on presidential prerogatives. Although Justice Alito’s opinion cited the DOJ’s support of Kansas’ prosecutions, his opinion also argues that the broad parameters of the immigration code should guide preemption jurisprudence. Alito expressly eschews presidential primacy (a position he also articulated in his partial dissent in Arizona), stating that the “possibility that federal enforcement priorities might be upset is not enough to provide a basis for preemption.” For hardline restrictionists, Kansas represents a victory for state enforcement independence and a welcome correction of Arizona’s refusal to allow enforcement redundancy in immigration. Alito is explicit on this point, noting that “from the beginning of our country, criminal law enforcement has been primarily a responsibility of the States, and that remains true today.” At first blush, the Arizona counterfactuals and the Kansas result are unsurprising. As with other aspects of presidential immigration policymaking, much depends on the preferences of the particular chief executive. But, in contrast to other areas of immigration policymaking, presidential decisions to weigh-in, either for or against subfederal policies, produce doctrinal shifts that bind the federal government, states and localities, and courts well-beyond a particular presidency. The Secure Communities program can be rescinded, abandoned, or modified by a future administration. The next president, however, cannot undo Kansas. In comparison to the integrated and connected model described by Cox and Rodriguez, some executive decisions—and resulting jurisprudence—nudge presidential immigration federalism further into a dual and independent sovereignty mode. Thus, the paradoxical result of President Trump’s support of Kansas’ prosecutions is to untether some forms of state immigration enforcement from federal executive influence. Especially in light of the federal government’s lackadaisical enforcement of employer sanctions laws, the ruling moves interested states from the periphery of immigration enforcement closer to its center, at least in the context of employment regulation. Far from “sidelining” the states, the Trump administration appears to have helped unbind them in ways that were jealously guarded by prior presidents. Once freed, it is difficult to put the genie of state and local policymaking back in the bottle. The ties and deep connections that undergird Cox and Rodriguez federalism account are loosened, and the balance shifts towards a co-sovereign independent from presidential control. It is of course true that, at least in the short term, this potential diminution of presidential control may not mean much. It remains to be seen whether states actually will use their authority to prosecute noncitizens more rigorously. And, as with all immigration federalism matters, a partisan difference is likely to emerge, with only deeply red states choosing  to engage in Kansas-style prosecutions. Nevertheless, the ruling means that the Biden administration will not be able to maintain a monopoly on the regulation of noncitizens in the employment process, even if that is the President-elect’s preference. Only a future Congress with sufficient political will—and not a future President alone—can eliminate the possibility of state prosecutions for seeking unauthorized employment. Moreover, if such prosecutions become normalized in several states, future federal legislative disapproval may prove difficult. (As I have chronicled elsewhere, this potential for state policies to entrench a federal administrative action applies to integrative policies too, as was the case when the Obama administration’s implementation of DACA galvanized several complementary driver’s license, professional licensing, and educational access laws at the state level.) Finally, Kansas may also call into question the asymmetry in outcomes that currently characterizes presidential immigration federalism. As Cox and Rodriguez note, the federal government’s ability to suppress state and local dissent on immigration policy is strongest when the administration prefers less enforcement than the states, and weakest when it prefers more enforcement than the state. The clearest example of this asymmetry is the potency of the sanctuary movement. In a system of integrated presidential immigration federalism, these forms of state and local non-cooperation and resistance are highly effective. But more than simply being effective, the asymmetrical ability of states to resist presidential enforcement schemes is highly desirable because it serves an important moderating and disciplining function. Indeed, as long as Congress remains incapable or unwilling to constrain the president’s de facto authority by reducing the size of the unlawfully present population, state and local resistance remains the primary means of moderating executive power over the shadow population (to a lesser extent, private organizations and associations play can play this role too). Continuing federal legislative stasis while allowing states the same leeway to enhance immigration enforcement as they do to resist it, diminishes this check and balance. If the Supreme Court tacks closer to Justice Alito’s views in Kansas, the underlying asymmetry in immigration federalism weakens and the system shifts towards maximalist enforcement. If Kansas signals a return to legislative primacy in immigration federalism cases, perhaps the Court will be more likely to permit state independence in regulatory areas outside of employment, and more likely to view skeptically subfederal laws (like sanctuary policies) that hamper maximalist enforcement efforts by the executive. This deeper dive into Arizona and Kansas is not to suggest that Cox and Rodriguez’s account is mistaken. Both accounts of presidential immigration federalism–the more integrated one they describe and the more independent one Kansas might portend–are perpetually in operation. Rather, my point is that the story of presidential immigration federalism may be more complex than their examples allow. Looking to the future, presidential immigration policymaking is likely to continue galvanizing oppositional or supportive state and local legislation. Some of those responses can be explained by the executive’s desire to centralize enforcement authority while accommodating the practical importance of periphery parts of the enforcement regime. Some, however, exist outside that dynamic in ways that cannot easily be centralized or controlled by a presidential administration. Pratheepan Gulasekaram, Professor of Law, Santa Clara University. You can reach him by e-mail at pgulasekaram at scu.edu 

  • On this day, Rosa Parks wouldn’t give up her bus seat
    by NCC Staff on December 1, 2020 at 10:15

    Today marks the anniversary of Rosa Parks’ decision to sit down for her rights on a Montgomery, Alabama, bus, putting the effort to end segregation on a fast track.

  • Trump Schedule || Tuesday, December 1, 2020
    by Keith Koffler on December 1, 2020 at 03:18

    No publicly scheduled events

  • Biden OMB nominee deletes more than 1,000 tweets
    by Keith Koffler on November 30, 2020 at 22:40

    Looks like Neera Tanden got a little carried away hating on the people who now will have to vote to confirm her. According to the Washington Examiner: Neera Tanden, President-elect Joe Biden’s pick for budget director, has deleted over a thousand tweets in anticipation of a tough confirmation vote. Many of Tanden’s deleted posts were … Biden OMB nominee deletes more than 1,000 tweets Read More »

  • Kamala Harris demeans charity
    by Keith Koffler on November 30, 2020 at 21:57

    Democrats aren’t as concerned as Republicans with charity. They give less of it, counting on the government to do the job. In the video below, Kamala Harris congratulates a group of people who would be helping out on Thanksgiving. “It’s the difference between charity and duty,” Harris says. “Charity — I got a little extra, … Kamala Harris demeans charity Read More »

  • Unmasking Gen. Flynn, Asylum for Child Abusers & Drunk Abusers
    by fvanloon on November 30, 2020 at 21:54

    The Unmasking of Gen. Flynn & The Presidential Transition President Trump’s detractors are calling for the president to concede the 2020 election and initiate the transition process. Some have described Trump’s resistance to concede as “a threat to democracy,” but as Fitton explained in last week’s Weekly Update, Americans are facing an “an electoral coup” The post Unmasking Gen. Flynn, Asylum for Child Abusers & Drunk Abusers appeared first on Judicial Watch.

  • The Cycles of Constitutional Time and the 2020 Election
    by JB on November 30, 2020 at 20:55

    This morning Professor Donna Lyons from Trinity College Dublin interviewed me about my new book, The Cycles of Constitutional Time, and how the book’s argument helps us to understand the consequences of the 2020 election.

  • Scholar Exchange: Article I: How Congress Works (High school and college level)
    by National Constitution Center on November 30, 2020 at 19:50

    In this session, students explore Article I of the Constitution, which defines the powers of Congress. This class examines constitutional debates involving the legislative branch from the Constitutional Convention to the most recent term.

  • Scholar Exchange: Article I: How Congress Works (Middle School Level)
    by National Constitution Center on November 30, 2020 at 17:45

    In this session, students explore Article I of the Constitution, which defines the powers of Congress. This class examines constitutional debates involving the legislative branch from the Constitutional Convention to the most recent term.

  • Video || Melania displays the White House Christmas decorations
    by Keith Koffler on November 30, 2020 at 17:04

    Enjoy them while you can, because next year they are “holiday decorations.”

  • Video || When the Clintons were on 60 Minutes pretending he’d behave and a lamp attacked
    by Keith Koffler on November 30, 2020 at 17:03

    Even the TV equipment gets angry about how 60 Minutes provides Democrats a forum to help themselves.

  • What is the Presidency?
    by Guest Blogger on November 30, 2020 at 14:30

    For the Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law (Oxford University Press, 2020).Daphna RenanWhat is the presidency in American public law? Current debates tend to focus on the constitutional powers of the presidential office and the authority of Congress to restrict them. In The President and Immigration Law, Professors Adam Cox and Cristina Rodríguez argue that, if the goal is to understand and assess presidential power in its contemporary form, we are looking in the wrong place. Presidential power results from the mass of statutory authorities—some broad and substantial, some textually specific or seemingly inconsequential—developed over time. But if this power derives from the interbranch process that underlies legislation, it is distinctively presidential in practice. Presidents do not merely apply legal authorities when they enforce statutes. Presidents reinvent these statutory schemes in “their own lights” (p. 8). Conforming immigration enforcement to the principle of legislative supremacy, the authors tell us, “would not just repudiate a few initiatives of recent administrations”; rather, it would “call into question the legality of decades of executive branch policymaking that has shaped the very nature of the American polity” (p. 202). Presidential power thus emerges from the discretion that presidents create in the interstices of complex statutory regimes.The book’s central argument is framed in connection to U.S. immigration law—and the descriptive account it presents in that context is nuanced and illuminating. But its conceptual apparatus is more far-reaching still. The modern presidency draws power not from some founding-era conception of a royal prerogative but from the crevices of cumulative—at times, contradictory—statutory material. There is nothing inherent or immutable about this presidency. Nor anything “original” about its design. Instead, it is the product of layers of contingent political battles and provisional settlements. These legal understandings have a foothold in the myriad provisions of the U.S. Code. But they are reinvented over time by the executive branch itself, in ways that have enabled the presidency to implement, rethink, and reimagine the substantive goals of the state.Public law’s focus on the contours of Article II does little to elucidate this presidency, including its sources of authority and constraint. As Professors Cox and Rodríguez argue, “the risks associated with executive governance through enforcement do not arise because the President’s power rests upon dangerous or novel legal theories about the scope of his office. Instead, the risks result from the surge in core and undisputed executive powers” (p. 215). Enforcement discretion, when exercised as a tool of presidential administration, can effectuate important humanitarian and justice-oriented goals. It can also, as we have painfully witnessed the past four years, effectuate cruel and inhumane practices on a stunning scale.This, then, is presidential power in the current era: It derives authorities, but not necessarily effective constraints, through a patchwork of legislative enactments. Such a presidency might not raise difficult problems under Article II. But it does pose a deep challenge for public law itself.Prevailing theories of statutory interpretation assume a shared commitment to legislative supremacy. Professors Cox and Rodríguez reject this conception. Subtle and nuanced in its descriptive mooring, their argument is deeply provocative as a normative vision of executive branch legalism. Legislation, on the authors’ view, is not coextensive with statutory authority. It is just a steppingstone to legal meaning—meaning that is and should be constructed dynamically over time in ways that openly defy what current theories of interpretation often assume to be the constraints of either text or legislative purpose.The authors reject formalism or the New Textualism’s assumption that textuality conveys the legal meaning of a statute. “Uncertainty,” the authors tell us, “inheres in the legislative act, and the concrete consequences and social meaning of the law will become apparent only through its implementation. As a result, we should want an Executive Branch with the power to manage a legal regime based on its own judgment, forged through its experience overseeing that regime” (p. 207). If the argument rejects the formalism of text-based inquiry, however, it is a repudiation of purposivism as well. “Efforts to legally bind the Executive to elusive or nonexistent congressional priorities . . . only obscure the reality that executive branch officials regularly make their own decisions about the scope of the state’s coercive authority,” the authors write (p. 200-201). As a result, “identifying the line that separates enforcement discretion from lawlessness depends on perception, instinct, and feel, not a clear legal principle that can be derived through lawyerly analysis” (id.).There is much, I think, to admire in this normative embrace of statutes as uncertain, unfinished, and fertile ground for ongoing and creative elaboration by the executive branch—not merely at the margins but at the very core of statutory regimes and in the pathways that they open for shaping the American polity. But it is important to underscore how dramatically this conception of statutory interpretation departs from the field’s prevailing assumptions. As a normative account, then, this model raises important questions about what it means to have a legal order so loosely anchored to our written laws. If the boundary of legitimate enforcement discretion entails “perception, instinct, and feel,” not lawyerly analysis, then what is—and what should be—the role of legal interpreters both internal and external to the presidency?Begin with the role of executive branch lawyers. To be sure, the statutory-interpretation questions that enforcement discretion invokes often do not have clear-cut legal answers. But Professors Cox and Rodríguez are making a bolder claim than that. They argue that now-entrenched executive branch practices are built on what initially would have appeared to be quite thin, aggressive, and highly controversial understandings of the law. The presidency did not simply implement these texts as written but rather reimagined them and, normatively, the authors urge, this is a desirable feature of our presidential governance.If the goal is not fidelity to some legislative design—whether discerned through text or purpose or other lawyerly tools—but rather moral leadership and sound substantive policymaking, however, then what role should executive branch lawyers play in the deliberations—and how should this exercise of legal discretion be structured? Should one particular lawyer or law office (such as the head of the Office of Legal Counsel) definitively decide questions of statutory construction, based on his or her own views on competing canons of interpretation, for example, or other modalities for discerning ambiguous statutory text? Or should executive branch lawyers instead identify the strengths and vulnerabilities of competing legal arguments, while creating space for a more policy-inflected presidential judgment? Put differently, does a less legalistic understanding of the zone of enforcement discretion require a different understanding of the role of executive branch lawyering? And, if the boundary of permissible enforcement is one of instinct and feel rather than lawyerly articulation, how can and should legal norms and professional ethics guide the lawyer’s charge of boundary-marking?The force of presidential enforcement discretion on the everyday lives of millions of individuals also raises crucial questions about the role of courts and the tools of administrative law. When enforcement discretion is centralized and systematized, should it trigger the procedural safeguards of the Administrative Procedure Act (APA), for example? If not, as the Obama administration repeatedly argued, what is the normative basis to resist such procedural protections for some of the most impactful decisions that the presidency and the executive branch can make? Under what conditions should presidential and executive interpretations of law, through the enforcement power, receive judicial deference? And how, for purposes of administrative law, should we understand the relationship between the presidency and agency enforcers? For example, should legal arbitrariness review under the APA seek to hold the president himself to a more meaningful form of political accountability, as my colleague Professor Ben Eidelson has argued?Perhaps the most fundamental questions that The President and Immigration Law invites, though, relate to the nature of public law itself. Recent work from historian Jonathan Gienapp unearths a debate, at the founding, over the character of the U.S. Constitution: should the Constitution function like “ordinary” law—in the sense of a finished document defined by its textuality and underlying legal purpose—or did it represent something else entirely, the ongoing, inherently unfinished work of “constituting” government. Professors Cox and Rodríguez might be read to suggest a related question: In the context of presidential administration, does the paradigm of “ordinary” law itself exist? Or is this statutory order—which constitutes and is reconstituted by the president’s enforcement power—unfinished, uncertain, and only thinly textual all the way down?Daphna Renan is a professor of law at Harvard Law School. You can reach her by e-mail at drenan at law.harvard.edu 

  • Balkinization Symposium on Adam Cox and Cristina Rodriguez, The President and Immigration Law
    by JB on November 30, 2020 at 14:00

    This week at Balkinization we are hosting a symposium on Adam Cox and Cristina Rodriguez’s new book, The President and Immigration Law (Oxford University Press, 2020).We have assembled a terrific group of commentators, including Pratheepan Gulasekaram (Santa Clara), Aziz Huq (Chicago), Peter Markowitz (Cardozo), Daphna Renan (Harvard), Shalev Roisman (Arizona), Bijal Shah (Arizona State), Peter Shane (Ohio State), and Robert Tsai (B.U.).At the conclusion, Adam and Cristina will respond to the commentators.

  • Trump Schedule || Monday, November 30, 2020
    by Keith Koffler on November 30, 2020 at 01:54

    12:30 pm || Lunch with Vice President Pence All times Eastern

  • Covid, masks, and the freedom to drive drunk
    by Andrew Koppelman on November 29, 2020 at 20:39

    Does freedom mean the right to refuse to wear a mask during the Covid pandemic?  Many Americans think so.  It is Donald Trump’s most important legacy.  Here’s one implication that is too little noticed:  if that is what freedom means, then we owe drunk drivers an apology.  I explain in a new column at The Hill, here.

  • The Role of a 1992 Census Case and John Roberts Jr. in a 2020 Census Challenge
    by Marcia Coyle on November 29, 2020 at 13:50

    Earlier in Chief Justice John Roberts Jr.’s legal career, he represented the government as deputy solicitor general in a 1992 census case. On Monday, he may hear some of his words from 28 years ago quoted back to him.

  • Happy Thanksgiving!
    by fvanloon on November 27, 2020 at 19:00

    Each year I like to remind our supporters to recall what life was like for the Pilgrims who arrived on these shores in December of 1620. As the Plimoth Plantation describes: Many of the colonists fell ill. They were probably suffering from scurvy and pneumonia caused by a lack of shelter in the cold, wet weather. Although The post Happy Thanksgiving! appeared first on Judicial Watch.

  • On this day, the 25th Amendment gets its first test
    by NCC Staff on November 27, 2020 at 11:00

    On November 27, 1973, the United States Senate became the first legislative house to act under the 25th Amendment, when it voted to approve Representative Gerald Ford as the new Vice President. A week later, the House also approved Ford, making his appointment official.

  • Court Halts Application of New York’s Occupancy Limits to Synagogues, Churches
    by Steven D. Schwinn on November 26, 2020 at 15:26

    Steven D. Schwinn, University of Illinois Chicago Law School The Supreme Court yesterday granted an application to temporarily halt the enforcement of New York’s "red zone" and "orange zone" occupancy limits to the Roman Catholic Diocese of Brooklyn and Agudath…

  • Was Washington’s Thanksgiving Proclamation the first Executive Order?
    by Scott Bomboy on November 26, 2020 at 10:48

    This Thursday, Americans celebrate a Thanksgiving holiday that has its roots in colonial traditions. But was that holiday actually created by the first executive order issued by a President?

  • White House Dossier will Return Monday, November 30
    by Keith Koffler on November 26, 2020 at 02:06

    White House Dossier will not publish from Thursday through Sunday. Have a very Thanksgiving! Keith

  • Trump Schedule || Thursday, November 25, 2020
    by Keith Koffler on November 26, 2020 at 02:05

    3:00 pm || Participates in a Thanksgiving Video Teleconference with Members of the Military; Diplomatic Reception Room All times Eastern

  • Trump pardons Michael Flynn
    by Keith Koffler on November 25, 2020 at 21:28

    President Trump Wednesday announced that he has granted a full pardon to Gen. Michael T. Flynn. It is my Great Honor to announce that General Michael T. Flynn has been granted a Full Pardon. Congratulations to @GenFlynn and his wonderful family, I know you will now have a truly fantastic Thanksgiving! — Donald J. Trump … Trump pardons Michael Flynn Read More »

  • FARRELL: The Republic Isn’t Sunk Yet
    by fvanloon on November 25, 2020 at 19:57

    From The Daily Caller: One takeaway from the rhetoric surrounding the ongoing election dispute is that Republicans should fear for their safety in a prospective Biden America. Despite the former vice president’s calls for post-election unity, many on the political left are simply out for revenge. Over the past four years liberals have turned normal The post FARRELL: The Republic Isn’t Sunk Yet appeared first on Judicial Watch.

  • Pennsylvania judge delays certification
    by Keith Koffler on November 25, 2020 at 19:11

    A relatively rare victory for the Trump campaign. According to the Washington Examiner: “A Pennsylvania court has ordered the state to halt work certifying elections until Friday, when it will hold a hearing on a lawsuit trying to have all mail-in votes disqualified. “Rep. Mike Kelly, congressional candidate Sean Parnell, and eight other petitioners claim … Pennsylvania judge delays certification Read More »

  • Should there be religious exemptions from general laws? Experts discuss the Fulton v. Phila case
    by National Constitution Center on November 25, 2020 at 01:52

    Religious freedom advocate Kristina Arriaga and scholar Stephanie Barclay of Notre Dame Law School join constitutional scholars Erwin Chemerinsky and Howard Gillman, authors of The Religion Clauses: The Case for Separating Church and State, to debate what the Constitution says about the relationship between church and state and provide their take on the most recent religious liberty Supreme Court cases. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates.

  • Fitton: Election Update
    by fvanloon on November 24, 2020 at 18:50

    From Tom Fitton’s article for Breitbart: If you want to effectively express your beliefs about this deliberately chaotic election, I urge you to contact your representatives in your state legislature and Congress. Especially if you live in Pennsylvania, Georgia, Michigan, Wisconsin, Nevada, and Arizona – cesspools of fraud and lawlessness all. I described what we’re The post Fitton: Election Update appeared first on Judicial Watch.

  • The Unmasking of Gen. Flynn & The Presidential Transition
    by fvanloon on November 24, 2020 at 17:05

    “He was the incoming National Security Advisor of the President… Does that tell you anything about all the hypocrisy of the Republicans and Democrats who are pressuring President Trump to give up all his challenges?”  President Trump’s detractors are calling for the president to concede the 2020 election and initiate the transition process. Some have described The post The Unmasking of Gen. Flynn & The Presidential Transition appeared first on Judicial Watch.

  • Clinton Judge Sides with Leftist Groups to Stop Asylum Ban for Child Abusers, Drunk Drivers
    by Irene on November 24, 2020 at 15:28

    The government is exceeding its authority for trying to ban illegal immigrant child abusers, drunk drivers, and a series of other violent criminals from getting asylum in the United States, according to open borders groups challenging a Trump administration rule scheduled to take effect this month. A Clinton-appointed federal judge agrees with the leftist nonprofits The post Clinton Judge Sides with Leftist Groups to Stop Asylum Ban for Child Abusers, Drunk Drivers appeared first on Judicial Watch.

  • Remembering Zachary Taylor: Military hero, obscure President
    by NCC Staff on November 24, 2020 at 09:21

    On November 24, 1784, future President Zachary Taylor was born in Virginia. Taylor became an unexpected obstacle to slavery’s expansion, until his sudden death in 1850.

  • Shakespeare and the Making of America
    by National Constitution Center on November 23, 2020 at 18:09

    Echoes of Shakespeare can be heard in some of the most fundamental documents in American history, including the Declaration of Independence and the U.S. Constitution. Join one of America’s leading authorities on Shakespeare, Barry Edelstein of The Old Globe; Kevin Hayes, author of Shakespeare and the Making of America; and Lucas Morel of Washington and Lee University for a look at how the Founders understood Shakespeare and how his work relates to American constitutional values today. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates the discussion. Resources: Kevin Hayes, Shakespeare and the Making of America: https://www.amberley-books.com/coming-soon/shakespeare-and-the-making-of-america.html The Old Globe Theater: http://www.theoldglobe.org/ Barry Edelstein, Thinking Shakespeare: A How-to Guide for Student Actors, Directors, and Anyone Else Who Wants to Feel More Comfortable With the Bard Lucas Morel, Lincoln and the American Founding: https://www.amazon.com/Thinking-Shakespeare-How-Directors-Comfortable/dp/1411498720 Alexis de Tocqueville, Democracy in America: https://press.uchicago.edu/ucp/books/book/chicago/D/bo3612682.html Thomas Jefferson, Literary Commonplace Book: https://www.loc.gov/item/mtjbib026467/ Project Gutenberg, The Complete Works of William Shakespeare: https://www.gutenberg.org/files/100/100-h/100-h.htm Shakespeare & Beyond, “The Astor Place riot: Shakespeare as a flashpoint for class conflict in 1849”: https://shakespeareandbeyond.folger.edu/2017/05/09/astor-place-riot-macbeth-new-york/ James Shapiro, Shakespeare in a Divided America What His Plays Tell Us About Our Past and Future: https://www.penguinrandomhouse.com/books/562046/shakespeare-in-a-divided-america-by-james-shapiro/ Abraham Lincoln, Second Inaugural Address (1865): https://www.ourdocuments.gov/doc.php?flash=false&doc=38&page=transcript Barry Edelstein, Bardisms: Shakespeare for All Occasions: https://www.harpercollins.com/products/bardisms-barry-edelstein?variant=32207614640162 Lucas Morel, “Charnwood’s Lincoln: Biography as Civics Lesson”: https://quod.lib.umich.edu/j/jala/2629860.0027.204/–charnwood-s-lincoln-biography-as-civics-lesson?rgn=main;view=fulltext

  • How JFK’s assassination led to a constitutional amendment
    by Scott Bomboy on November 22, 2020 at 12:00

    President John F. Kennedy’s death on November 22, 1963 traumatized a nation and led a united Congress to make a key constitutional change, in the form of the 25th amendment.

  • Battles for Equality in America: The 14th Amendment with Kate Masur (High school/college level)
    by National Constitution Center on November 20, 2020 at 18:58

    Join us for this exciting class on the 14th Amendment from Reconstruction to today. Jeffrey Rosen, president and CEO of the National Constitution Center, will be joined by professor Kate Masur of Northwestern University who specializes in 19th-century United States history, with a primary focus on how Americans grappled with questions of race and equality after the abolition of slavery in both the North and South. The class examines the clauses of the 14th Amendment and the battle over their meaning from Reconstruction to the Supreme Court’s landmark decision on marriage equality in Obergefell. This session will explore America’s first and second civil rights movements, the Constitution and women, and modern interpretations of the 14th Amendment.

  • Section Two of the Fourteenth Amendment and Presidential Electors
    by Gerard N. Magliocca on November 20, 2020 at 01:53

    To build upon my prior post about the constitutional doubts that exist about the authority of a state legislature to appoint presidential electors after the election was held in a manner inconsistent with the popular vote in that state, consider Section Two of Fourteenth Amendment:[W]hen the right to vote at any election for the choice of electors for President and Vice President of the United States . . . is denied to any of the male inhabitants of such state, being  and citizens of the United States, or in any way abridged, except for participation in rebellion, or other crime, the basis of representation therein shall be reduced in the proportion which the number of such male citizens shall bear to the whole number of male citizens twenty-one years of age in such state.The most sensible reading of this provision is that a state legislature that usurps the popular vote for presidential electors in a state forfeits the state’s right to representation in the House of Representatives and (arguably) in the Electoral College itself except for the two votes each state gets for its two Senators. Such a state legislature would be denying the right to vote to everyone in the state by treating the election as a non-binding beauty contest when the people voted on the assumption that their vote was binding.Granted, you could say that Section Two permits a state legislature to appoint presidential electors after the election in defiance of the people–the state must just accept the representation penalty. Maybe, but the penalty is severe. More broadly, the point is that state legislatures do not have plenary authority over the appointment of presidential electors after the election is held. Either they face a harsh penalty or other independent constitutional provisions should be read as prohibiting such an action entirely. States test these constitutional limits at their peril.

  • Church-State Separation: What Does the Constitution Really Say?
    by National Constitution Center on November 20, 2020 at 01:09

    Religious freedom advocate Kristina Arriaga and scholar Stephanie Barclay of Notre Dame Law School join constitutional scholars Erwin Chemerinsky and Howard Gillman, authors of The Religion Clauses: The Case for Separating Church and State, to debate what the Constitution says about the relationship between church and state and provide their take on the most recent religious liberty Supreme Court cases. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. Resources: Erwin Chemerinsky and Howard Gillman, “The Religion Clauses: The Case for Seperating Church and State”: https://global.oup.com/academic/product/the-religion-clauses-9780190699734?cc=us&lang=en& Fulton v. City of Philadelphia: https://www.scotusblog.com/case-files/cases/fulton-v-city-of-philadelphia-pennsylvania/ Interactive Constitution, “The Establishment Clause Explainers”: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/264 Interactive Constitution, “The Free Excercise Clause Explainers”: https://constitutioncenter.org/interactive-constitution/interpretation/amendment-i/interps/265 Employment Division, Department of Human Resources of Oregon v. Smith (1990): https://www.oyez.org/cases/1989/88-1213 Howard Gillman, “The Constitution Besieged: The Rise & Demise of Lochner Era Police Powers Jurisprudence”: https://www.amazon.com/Constitution-Besieged-Demise-Lochner-Jurisprudence/dp/0822316420 Burwell v. Hobby Lobby Stores (2014): https://www.oyez.org/cases/2013/13-354 Reynolds v. United States (1879): https://www.oyez.org/cases/1850-1900/98us145 Erwin Chemerinsky and Howard Gillman, “Free Speech on Campus”: https://yalebooks.yale.edu/book/9780300226560/free-speech-campus Pro/Con, The Phialdephia Inquirer, “As Supreme Court bebates Philly-based foster case, should laws allow religious exemptions?”: https://www.inquirer.com/opinion/commentary/scotus-supreme-court-religious-exemption-fulton-catholic-social-services-philadelphia-20201112.html Kristina Arriaga, “My family fled Fidel Castro’s Cuba, where ‘cancel culture’ was deadly serious”: https://www.usatoday.com/story/opinion/voices/2020/10/21/cancel-culture-shame-social-media-free-speech-cuba-castro-column/5990139002/ Stephanie Barclay, “Spheres of Liberty and Free Exercise: Lessons for Fulton from Jefferson’s Correspondence with Ursuline Nuns”: https://reason.com/volokh/2020/11/02/spheres-of-liberty-and-free-exercise-lessons-for-fulton-from-jeffersons-correspondence-with-ursuline-nuns/ Stephanie Barclay, “Rethinking Protections for Indigenous Sacred Sites”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3689111 Stephanie Barclay, “A Defense of Religious Exemptions”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3079777 Stephanie Barclay, “Historical Origins of Judicial Religious Exemptions”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3590368 Stephanie Barclay, “An Economic Approach to Religious Exemptions”: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3702743

  • Video Lesson Clip: The Story of Thanksgiving
    by National Constitution Center on November 19, 2020 at 21:37

    Discover how the Thanksgiving holiday became a nationwide observance after the Civil War.

  • Myths and mysteries about the Gettysburg Address
    by NCC Staff on November 19, 2020 at 09:55

    On this day in 1863, Abraham Lincoln gave his Gettysburg Address, widely considered one of the greatest speeches in American history. But even today, there are still a few points about the speech that are misunderstood.

  • The Fulton v. City of Philadelphia Oral Argument: Interracial Marriage as a Constitutional Lodestar— or Third Rail?—in Reasoning about Religiously-Motivated Discrimination
    by Linda McClain on November 18, 2020 at 03:40

     I agree with Professor Kyle C. Velte’s insightful post on this blog, “Reclaiming the Race Analogy inFulton v. City of Philadelphia” (Friday, November 13), in which she insists on the appropriateness of the analogy between religious opposition to interracial marriage and—more broadly—to racial integration and present-day religious opposition to same-sex marriage and—more broadly—to providing goods and services to same-sex couples.  Reflecting on the recent oral argument before the U.S. Supreme Court in Fulton, Velte suggests that how some Justices view the aptness of the race discrimination/sexual orientation analogy may shape their approach to the case.  Professor Velte’s post draws on arguments in an amicus brief that she authored, submitted in Fulton on behalf of respondents and joined by several legal scholars (including me). The brief urges the Court that civil rights-era precedents such as Newman v. Piggie Park Enterprises (1968) are relevant to present-day controversies over claims to religious exemptions to antidiscrimination laws and cautioned against arguments—advanced earlier in Masterpiece Cakeshop v. Colorado Civil Rights Commission—that any analogy to Piggie Park was inapt because yesterday’s religious segregationist was obviously a bigot, with “fringe” beliefs, while today’s religious believers in traditional marriage are sincere, with decent and honorable beliefs.  As Professor Velte argues in her post (and as I have elaborated in Who’s the Bigot?), this supposed disanalogy sets the stage for a further argument: if business owners (like Jack Phillips) or religious social service agencies (like Catholic Social Services, in Fulton) who sincerely object to same-sex marriage are denied exemptions from state or local antidiscrimination laws, they are being branded and treated as bigots argument. In this post, I offer additional analysis of the prominent role played by the race analogy in the Fultonoral argument. To be sure, no one used the express rhetoric of bigotry in the Fulton oral argument.  However, the idea that Catholic Social Services (CSS) was being branded as a bigot because Philadelphia would not allow it to continue its contract as a foster care agency (FCA) unless it agreed to comply with the Fair Practices Ordinance and certify same-sex couples for foster care placements was implicit in remarks by Deputy Assistant Attorney General Hashim Mooppan (U.S. Department of Justice), who appeared as amicus curiae in support of CSS and the other petitioners. Justice Alito’s questioning and statements also implied such a charge. Similarly, although Piggie Park did not make an appearance, several justices raised the race analogy in the form of questions about religious objections to interracial marriage. Counsel for the parties and the various justices sharply disagreed about the force of this analogy. For Mooppan and for Lori Windham, counsel for petitioners, as well as for some of the conservative justices, Loving v. Virginia seemed less of a constitutional lodestar and more akin to a third rail on the subway: to be avoided as so inapt as to be incendiary and dangerous.  For the City’s attorneys and some of the liberal justices, the example of interracial marriage featured as a fixed point, or lodestar, that should guide reasoning about government’s compelling interest in ending discrimination on grounds other than race. In effect, this dual approach reprised Obergefell v. Hodges (2015): Loving was a constitutional lodestar in Justice Kennedy’s majority opinion holding that same-sex couples had a fundamental right to marry, while the dissenters argued that Loving in no way supported such a holding and that such reasoning from race would vilify sincere religious believers in traditional (man-woman) marriage as bigots.In the Fulton oral argument, several justices raised the interracial marriage hypothetical, pondering how to draw lines concerning what sorts of religious beliefs might receive exemptions from the City of Philadelphia’s nondiscrimination law (the Fair Practices Ordinance) if the Court reversed the Third Circuit and upheld CSS’s free exercise claim. Further, some wondered how religious objections to interracial marriage would fare if the Court abandoned Employment Division v. Smith, as CSS has urged it to do, and adopted a stricter form of scrutiny for anylaw that burdened the free exercise of religion.Justice Sotomayor first posed the line-drawing question to petitioners’ attorney, Lori Windham, asking if the City, in contracting with a religious social service agency, would have to allow the agency to exclude people from the pool of potential foster parents because they were part of an interracial couple, from a different religious tradition, or had a disability.  Justice Sotomayor queried: “How do we avoid that?” The attorney leapt over the interracial couple to focus on the disability example, contending that the City did permit exclusions based on disability (a claim that Justice Sotomayor challenged on the facts). Justice Barrett returned to Justice Sotomayor’s example of interracial marriage, asking Windham: “What if there was an agency who believed that interracial marriage was an offense against God and, therefore, objected to certifying interracial couples as foster families.” Barrett asked if such an agency would be “entitled to an exemption” and “if so, how is that distinguishable from . . . CSS’s refusal to certify children to couples in same-sex marriages?”     Justice Breyer also brought up the interracial marriage analogy when questioning Mooppan, asking if a religious belief against interracial marriage was the onlyexample in which a governmental interest in eradicating discrimination was “compelling.”  What if government, he asked, contracted with a food distributor who, because “they are Orthodox Jews . . . want nothing to do with ham” or let anyone else distribute it? Or a religious entity that bids on a local transportation contract but seeks to sit men and women separately – or wants “women to wear head scarves”?  Mooppan initially resisted the question, by indicating the answer would depend on whether “The government is acting in a generally applicable and neutral way,” since he argued the City had not, given its supposed “myriad exceptions.” However, when pressed, he resorted to the “race is special” argument, saying he “would differentiate the interracial marriage [hypothetical] from the rest of them.” This argument is that the Court’s precedents make clear that the “unique” place of race in U.S. constitutional history gives government a “super-compelling interest” in eradicating race discrimination. Justice Breyer pressed Mooppan on the implications of this “race is special” approach to the protection of Free Exercise claims, asking: “now two of you [Mooppan and Windham] have said this, that we should write an opinion which says discrimination on the basis of race, constitutionally speaking, is different than discrimination on the basis of gender, on the basis of religion, on the basis of nationality, on the basis of homosexuality, all right? Is that the opinion you want us to write?”  Mooppan seemed to agree, arguing that the Court had referred to eradicating race as “a particularly unique and compelling interest.” (Mooppan referred to Pena-Rodriguez v. Colorado (2017), which allowed impeachment of a jury verdict because of evidence of racial bias.) Windham also emphasized that race is special. To Justice Barrett’s question about a social service agency raising a religious objection to interracial marriage, Windham answered by citing to Loving v. Virginia, which indicated that “the Court has been clear” in that case “and other cases that government has a compelling interest in eradicating racial discrimination.” The hypothetical objection to an interracial couple, Windham insisted, was a “far cry” from the case before the Court. Thus, a ruling that the Fair Practices Ordinance violated CSS’s free exercise of religion because of its religious objections to same-sex marriage did not lead to the City having to accommodate religious objections to interracial marriage, given the state’s compelling interest in ending racial discrimination. For the most part, Windham and Mooppan avoided directly answering the question of whether a governmental interest in prohibiting sexual orientation discrimination was also compelling. Justice Kagan pressed Mooppan repeatedly to give a yes or no answer this question, but he resisted doing so. He insisted that Philadelphia itself had failed to show a compelling interest in enforcing its Fair Practices Ordinance against CSS because of a slew of supposed exceptions to the Ordinance – a factual claim countered by counsel for respondents. Finally, he suggested that, “in the abstract,” it might be a compelling interest, but “we haven’t taken a position on that question” because of this supposed undermining by Philadelphia of that interest. Justice Sotomayor pressed Mooppan on “race is special” argument by reasoning by analogy from why the state interest in ending race discrimination is compelling: the stigma created by rejection. On this reading, the Court’s racial discrimination mean “not merely that race was important but that the burden on the people who are rejected because of race is an interest that the state could seek to protect, that a rejection on the basis of race or any protected category creates a stigma on that person and that it’s a compelling state interest for the state to have an anti-discrimination law on the basis of protected classes.” Asked whether he was “diminishing that as a compelling state interest,” Mooppan said he was not, but then insisted that such stigmatic harm was not present since no gay couple had been denied the ability to serve as a foster parent. To a skeptical Justice Sotomayor, he argued that such couples did not seek out CSS because they accepted and recognized CSS’s “deep-seated, sincere religious objection to gay marriage.”   Another tack that Windham and Mooppan took was to assert a constitutionally relevant moral distinction between a religious belief condemning interracial marriage and one condemning same-sex marriage, enlisting Obergefell.  Here they received an assist from Justice Alito and some of the other conservative justices. Immediately following Justice Breyer’s pressing Mooppan on the “race is special” argument, Justice Alito asked, “Didn’t the Court in Obergefellsay exactly that?” Alito referred to Obergefellstating “that there are honorable and respectable reasons for continuing to oppose same-sex marriage,” and then asked Mooppan, “Would the Court say the same thing about interracial marriage?” With this assist, Mooppan promptly answered “no,” stating that the Lovingcourt did not and “never would have” made statements similar to those in Obergefell in the context of opposition to interracial marriage. (Of course, this may be misleading if it implies that Loving directly addressed religious opposition to interracial marriage. To be sure, Chief Justice Warren’s opinion quoted without comment the trial court’s theological argument against interracial marriage (“Almighty God created the races . . . “), and the theology of segregation frequently featured in judicial opinions upholding antimiscegenation laws. However, when Warren characterized Virginia’s supposedly “legitimate purposes” for its Racial integrity Act as “obviously an endorsement of the doctrine of White Supremacy,” he quoted Naim v. Naim’s appeal to preventing “the corruption of blood” and a “mongrel breed of citizens,” rationales not stated in explicitly religious terms in Naim.) Mooppan also argued that Masterpiece Cakeshop supported a relevant moral distinction between objection to interracial and same-sex marriage. He extrapolated from Justice Kennedy’s observation that “gay persons” could accept a religious exemption for clergy from being compelled to perform a wedding ceremony without such exemption diminishing their own “dignity and worth” to suggest that a “pluralistic nation that respects religious tolerance” could accommodate “longstanding, deep-seated, sincere religious beliefs that oppose same-sex marriage” as consistent with the Free Exercise Clause. That “tolerance,” in other words, would include exempting CSS, as a government contractor, from the City’s Fair Practices Ordinance – quite a reach from Kennedy’s clergy example. By contrast, Mooppan argued that similar tolerance would not apply to interracial marriage, “given the significant, compelling interest in that context.”  This reading of Masterpiece Cakeshop, however, ignores that Kennedy also cautioned that if a religious exemption were not carefully confined, gay persons could experience a “community-wide stigma inconsistent with the history and dynamics of civil rights laws that ensure equal access to goods, services, and public accommodations.” Neither Windham nor Mooppan explicitly argued that CSS was being branded or treated as bigoted because of its religious beliefs about marriage, but they and some of the conservative justices implicitly drew a contrast between a sincere believer with decent beliefs and a bigot with odious beliefs. Thus, Mooppan argued that Philadelphia treated CSS’s beliefs as unworthy of respect. They did not renew their foster care contract with CSS because they viewed CSS’s as “too odious to tolerate,” as “some sort of odious anachronism rather than, as this Court has recognized, a decent and honorable view that people can recognized and accept in a country that’s committed to religious tolerance.” Justice Alito seemed to embrace this diagnosis, asking Professor Neal Katyal, counsel for the City of Philadelphia, to be “honest about what’s really going on”:  the City could not stand the “message” that CSS was sending by adhering to an “old fashioned view” about marriage.  He did not add “bigoted” to “old fashioned” in the oral argument, but in a subsequent Federalist Society speech, Justice Alito reiterated his objection to Obergefell and its  supposed branding of believers as bigots. He reportedly asserted: “you can’t say that marriage is the union between one man and one woman. Until very recently, that’s what the vast majority of Americans thought. Now it’s considered bigotry.”  Further, the rhetoric of bigotry was explicit in the concurrence that Justice Alito joined—authored by Justice Thomas — when the Court denied Kentucky county clerk Kim Davis’s petition for certiorari. That concurrence reiterated the Obergefelldissenters’ warnings of the threat to religious liberty from the majority “reading” a right of same-sex couples to marry into the Constitution, instead of allowing state legislatures to resolve the matter in a way that could have included accommodations for the “many Americans” who—like Kim Davis—“believe that marriage is a sacred institution between one man and one woman.” Instead, the concurrence charges that, despite Obergefellbrief mention of sincere, decent, and honorable beliefs, it suggested that those with those beliefs “espoused a bigoted world view” and opened the door to vilifying them as bigots. The concurrence stated that Kim Davis was perhaps one of the first “victims of this Court’s cavalier treatment of religion,” she would not be the last. Presumably, Justice Alito and some other justices view CSS as yet another such “victim,” unless the Court reverses the Sixth Circuit and perhaps even overrules Smith. Justice Kavanaugh, who joined the Court after Obergefell and Masterpiece Cakeshop, did not explicitly criticize Obergefell. Instead, he invoked the “promise” of both Obergefell and Masterpiece of “respect for religious beliefs.” He commented to Katyal: “what I fear here is that the absolutist and extreme position that you’re articulating would require us to go back on the promise of respect for religious believers.”  His sympathy for CSS seemed evident when he characterized Philadelphia as “looking for a fight,” and creating a “clash,” rather than seeking a “balance” that recognizes both religious exercise under the First Amendment and the same-sex couples right to marry, under Obergefell. Justices Alito and Kavanaugh may have been trying to frame the City’s dealings with CSS as showing “hostility,” akin to Justice Kennedy’s criticisms of the civil rights commissioners in Obergefell. However, Katyal rebutted these proffered narratives of “what’s really going on” or of the City “looking for a right” by pointed out that the City continued to work with CSS. He repeatedly mentioned the $26 million in funding that CSS continues to receive from the City for child-related services other than certifying foster parents—“hardly something demonstrating religious hostility.”  In this way, he also countered Mooppan’s suggestion that the City viewed CSS’s beliefs as too “odious” to tolerate. Katyal and Jeffrey Fisher, for the other respondents (Support Center for Child Advocates and Philadelphia Family Pride), both skillfully addressed both the “race is special” argument and the attempt to distinguish different types of religious objections to complying with antidiscrimination laws based on the moral quality.  Fisher addressed both these points in response to Justice Barrett’s questioning. Justice Barrett posed the interracial couple hypothetical:  “I think we would agree that there’s really not any circumstances we can think of in which racial discrimination would be permitted as a religious exemption.” She then asked Fisher if the objection to same-sex marriage was “like racial discrimination” or if it would justify an exemption. Fisher answered that the two forms of discrimination were similar, for purposes of her analysis. While “race is special in many ways in the Court’s jurisprudence,” he pointed out that the Court’s free exercise jurisprudence does not “judge the legitimacy or the offensiveness of religious beliefs,” but instead focuses on sincerity or the beliefs being “deeply felt.” In support he cited Bob Jones University, as evidencing that “some religious organizations do have deeply felt views about interracial marriage.”  As Professor Velte observed in her blog post, it was not until 2008 that Bob Jones University finally “apologized” for its role “in using religious beliefs to uphold racism.”   Fisher argued that the question is then whether government’s compelling interest applies differently in the religiously-motivated race discrimination case than in other types of cases. He argued it should not, since government has a compelling interest in eliminating forms of discrimination in addition to race discrimination, such as sex discrimination (citing to United States v. Jaycees). Fisher also observed how, in Bostock v. Clayton County, the Court had ruled that sexual orientation discrimination was sex discrimination. This sex or gender discrimination example (also brought up by Justice Kagan) is an important way to remind the justices that modern state and local antidiscrimination laws have many protected categories in addition to race, including sexual orientation. Justice Kennedy recognized this in Masterpiece, when he wrote (for the majority): “It is unexceptional that Colorado can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”     With respect to the City of Philadelphia and the terms and conditions of its contracts with foster care agencies, Katyal argued that it  had identified the “most compelling of interests” for requiring compliance with the Fair Practices Act: protecting the children to be placed in foster care, “its own wards of the state.” The Ordinance’s nondiscrimination requirements helped it to “maximize the number of parents in the pool and avoid stigma” both to parents and to youth by allowing contractors to discriminate among parents based on sexual orientation. Philadelphia had a compelling interest in avoiding that stigma and in growing the pool of potential foster parents because “LGBT kids are an outsize number of people in the foster care population.” Katyal noted that other jurisdictions with nondiscrimination policies had seen an increase in the number of people in the pool, not a decrease.  This analysis of stigma resonated with Justice Sotomayor’s approach to the state’s compelling interest in ending discrimination based on protected categories. Katyal and Fisher further countered the “race is special” argument by contending that it was not possible to separate race discrimination from all other forms of discrimination and that line drawing questions were inevitable once the City allowed any religious exemptions. Katyal resisted Justice Kavanaugh’s framing of the case as one pitting religious liberty against same-sex equality, pointing out that it was actually a “religion versus religion” case. He warned of balkanizing foster case: once one accepts a right of a foster care agency (like CSS) to make determinations based on their religious beliefs, “another FCA can say we won’t allow Baptists, we won’t allow Buddhists,” and so forth.  Instead of just a “small, tiny accommodation,” which would cause little harm, the door would be opened to “all sorts of claims,” because the Court assesses only sincerity, not the “reasonableness” of a belief. The justices seemed sharply divided on the comparative harms in the case, which echoed the competing positions in Obergefell and Masterpiece. In the Fulton oral argument, some of the conservative justices sought confirmation of facts that no same-sex couple had been turned away by CSS, that they could readily work with other agencies, but meanwhile many vulnerable children were harmed by not allowing CSS to participate in placing children. Justice Kavanaugh insisted he “fully appreciate[d] the stigmatic harm” point, but that the effort should be to accommodate religious exercise so that it was not in conflict with the rights of same-sex couples under Obergefell –in keeping with the “promise” of Obergefelland Masterpiece. By comparison, the liberal justices emphasized the stigmatic harm of discrimination against persons in all protected categories (e.g., Justice Sotomayor) and the potentially vast number of religious exemptions that government contractors might seek—particularly if the Court jettisoned Employment Division v. Smith (e.g., Justice Breyer).   The Fulton oral argument shows that interracial marriage continues to hold a special place in constitutional reasoning about tensions between religious liberty under the First Amendment, on the one hand, and, on the other, constitutional protection of civil marriage equality for same-sex couples and civil rights protections of LGBTQ persons under state and municipal nondiscrimination laws. Loving v. Virginia and the Court’s other race discrimination cases provide a constitutional lodestar for navigating how to reason about such controversies. But certain forms of the “race of special” argument treat these precedents more as a proverbial third rail of the subway – to be avoided as inapt or even dangerous.  Or put a different way, the “race is special” argument forecloses reasoning by analogy because it implies that only government’s interest in eradicating race discrimination is sufficiently compelling. As I argue in Who’s the Bigot?, and Professor Velte observes in her post, the racist bigot frozen in the past too readily serves as a contrast figure for arguments that to apply antidiscrimination laws that would limit sincere religious believers from acting on their beliefs in the public sphere—including as government contractors—brands them as bigots. There is a painful irony in this, given that the Fulton oral argument took place on November 4,  the day after the 2020 presidential election. The oral argument featured repeated statements about the unique history of race discrimination in the U.S., and, as a result, government’s particularly compelling interest in eradicating it. Outside the (virtual) walls of the Supreme Court oral argument, however, even though over 75 million voters chose Vice President Biden and Senator Kamala Harris, who pledge to fight systemic racism, acknowledge that Black Lives Matter, and advance civil rights, 70 million voted to re-elect President Trump, who has denied systemic racism, refused to say “Black Lives Matter,” failed to condemn bigotry, and supported rolling back civil rights protections for many different groups of Americans. If only the sacrosanct commitment to repudiating race discrimination found in such hallowed precedents as Loving translated into a broader commitment in the body politic.   

  • 10 reasons why America’s first constitution failed
    by NCC Staff on November 17, 2020 at 10:30

    It was on this day in 1777 that the Articles of Confederation, the first American constitution, was sent to the 13 states for consideration. It didn’t last a decade, for some obvious reasons.

  • The U.S. Constitution and the problem of Constituent Power
    by Sandy Levinson on November 14, 2020 at 21:58

     I just finished teaching a reading course (by Zoom) at the Harvard Law School on “Reforming the U.S. Constitution:  Is it Desirable?  Is it Possible?”  Although we (the roughly ten students and myself) did not agree on exactly what reforms might be desirable, there was general agreement that at least some might well be.  Indeed, I assigned materials across the ideological spectrum, including the so-called “Texas Plan” put forth by Texas Governor Greg Abbott that advocates nine important structural changes–one of them similar to that advocated by Georgetown Law Professor Randy Barnett that would allow state legislatures to nullify federal legislation–and Lloyd Cutler’s article from 1980, “To Form A Government,” that advocated a number of changes to strengthen what he thought was a unduly weak presidency.  The final reading was an excellent new book, MAKING A NEW AMERICAN CONSTITUTION, by George William Van Cleve, currently a visiting scholar at Georgetown and the author of previous excellent books on American constitutional history.  The book was self-published and is available on Amazon, but it clearly would have been published by a first-rate academic press had Van Cleve been willing to wait what probably would have been up to a year for the publication process to work.  Given the tenor of the times, his decision to self-publish is readily understandable, for his book in fact is a public service.  (Full disclosure:  I was happy to write an enthusiastic Foreword to the book, and Balkinization regular Mark Graber also contributed a strong blurb, as did University of Virginia history professor emeritus Peter Onuf.In some ways, the book can be compared to the Declaration of Independence.  That is, much of consists of the equivalent of a “long train of abuses,” or, perhaps more accurately, a “bill of particulars” with regard to the disconnect between the nature of the challenges facing us today as a society and the capacity of the existing Constitution to provide any hope for needed changes.  Obviously, Van Cleve and I share a lot of concerns about the extent to which the 1787 Constitution constructs an excess of veto points that rig the political system in favor of maintaining the status quo.  (Recall that I remain upset with Bernie Sanders for posturing as a “revolutionary” without once ever informing his younger supporters that significant constitutional reform is a predicate condition to achieving the reforms that he advocated.)  Van Cleve does a far better job than I have done of amassing evidence of the challenges we face, especially with regard to the consequences of economic inequality and the great advantages enjoyed by the well-off (nowhere better illustrated, of course, than in the current pandemic, where the contrast between the haves and have-nots is stunning, especially if the former are willing, unlike Donald J. Trump, to follow even minimal guidelines like wearing masks and maintaining social distance).As already suggested, though, by reference to the title of my course, the real problem is whether badly needed constitutional reform is “possible” as well as desirable.  After all, part of the bill of particulars, for Van Cleve and myself, is Article V itself, and its basic message of “Abandon all hope” sent to anyone bold enough to suggest the need for constitutional amendment.  I earlier wrote about Alex Keyssar’s superb book, Why Do We Still Have the Electoral College?, where the answer is basically because over 200 years of systematic opposition to the idiocy of that system has proved unavailing against the barriers of Article V, most dramatically in 1969, where the Senate, because of a filibuster led by white supremacists Southern senators Sam Ervin and Strom Thurmond, never voted on a proposal that had in fact gained the assent of two-thirds of the House of Representatives and perhaps would have gotten the two thirds had the Senate been allowed to vote, if one doesn’t conflate support for the filibuster with necessary opposition to the bill being filibustered.  But we’ll never know.Van Cleve is fully aware of these problems, and his boldest chapter sets out his hopes for a National Constitutional Convention that would in essence be called and conducted by notables entirely independent of any formal political process that might be suggested by Article V.  Moreover, he advocates that any proposals suggested by the NCC, since it would be without authority to promulgate a new constitution directly, would get their validity from a process of popular ratification.  My students thought that this chapter, albeit extremely interesting, was in a literal sense incredible, since it is impossible, at least at the present moment, to imagine its happening, even if one supported the idea.  Along with Van Cleve, I also assigned Federalist 40, written by Madison, in which Madison defends, plausibly or not, the extraordinarily powers seized by the Framers in Philadelphia when measured against both the rather limited mandate of Congress–to suggest “revisions” in the Articles of Confederation–and, more importantly, the constraints of Article XIII of the Articles of Confederation, which required the assent of the legislatures of every one of the states for any amendment.  That’s the reason that Rhode Island didn’t even both to send any delegates to Philadelphia, because the state was foolish enough to believe that the text really mattered.  It did not.  But, of course, Philadelphia had George Washington, a truly noble Roman (albeit a slaveowner) who leant his incomparable presence to legitimating the Convention and then its handiwork.  South Africa had Nelson Mandela.  One practical problem is that we simply cannot imagine a group of broad-based civic leaders who would be trusted to engage in such a truly audacious enterprise, however necessary it is.Jack Balkin and I several years ago defined one version of “constitutional crisis” to be the felt necessity to adhere to constitutional forms even if that in effect required driving over a cliff, presumably while shouting out “let the text be honored though the heavens fall.”  The most basic, mysterious, issue connected with the entire concept of “popular sovereignty” and, therefore, rule by “the people” is how in the world one identifies those who can speak in the name of vox populi and reassert the original sovereignty–or constituent power (not precisely the same thing, as argued in another splendid new book by Joel Colon-Rios, Constituent Power and the Law–on which the legitimacy of our political order, if we take the Declaration of Independence seriously, depends.  Sooner or later, as, for example, control of the Senate is ever more embedded in states possessing far less than a majority of the total population–and, in addition, a skewed sample of that population, we will have to confront the ways in which the current American constitutional is both illegitimate, in terms of foundational political theory, and, perhaps more to the point, inefficacious or, as Hamilton wrote in Federalist 15, “imbecilic” in terms of actually being able to address the concerns that most Americans are in effect referring to when they declare that the country is going in the wrong direction and they are without sufficient “confidence” or “approval” of our basic national instituitons.

  • Reclaiming the Race Analogy in Fulton v. City of Philadelphia
    by Guest Blogger on November 13, 2020 at 23:30

    Kyle C. VelteThe Supreme Court held oral argument last week in Fulton v. City of Philadelphia, a case asking whether a taxpayer-funded foster care agency may turn away same-sex couples who wish to be foster parents because of the agency’s sincere religious objection to certifying same-sex couples. A Philadelphia ordinance—the Fair Practices Ordinance—and the contract that a family foster care agency such as CSS must sign with the city prohibit such agencies from discriminating against these same-sex couples. But CSS is asking the Court to find that the First Amendment’s free exercise and free speech clauses require the city to grant it an exemption from complying. The oral argument showed that some of the Justices may believe the case turns on the extent to which an analogy to race discrimination is appropriate in religious exemption cases involving sexual orientation discrimination. Justice Barrett articulated the widespread consensus that the Court would soundly reject a claim for a religious exemption to discriminate based on race (“I think we would agree that there’s really not any circumstance we can think of in which racial discrimination would be permitted as a religious exemption.”). Yet today’s exemptions seekers, as well as some of the justices, bristle at the comparison to the Supreme Court’s 1968 decision in Newman v. Piggie Park Enterprises, which referred to a restaurant owner’s claim for a religious exemption to a law prohibiting race discrimination as “patently frivolous,” even in an era in which the Court applied a form of “heightened scrutiny” to Free Exercise claims. Those seeking exemptions from sexual orientation non-discrimination laws today contend that litigants in the 1960s who opposed interracial marriage or racial integration on religious grounds were bigoted racists, while their own claims are based on honorable religious beliefs. After setting up this dichotomy, today’s exemption seekers argue that the race analogy must fail. Otherwise, they contend, they will be improperly and inaccurately branded as bigots. Many opponents of the race analogy rely on dicta from Obergefell—that “[m]any who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here”—to support this normative objection to the race analogy. During the Fulton oral argument, Justice Alito referred to this Obergefellpassage to support his own opposition to the race analogy: “Didn’t the Court in Obergefell say exactly that? Didn’t the Court say that there are honorable and respectable reasons for continuing to oppose same-sex marriage? Would the Court say the same thing about interracial marriage?” Moreover, Counselor to the Solicitor General Mooppan suggested that the Loving v. Virginia Court would “never” have suggested that there were “honorable and respectable reasons” for opposing interracial marriage, like the ObergefellCourt suggested was acceptable vis-à-vis same-sex marriage. This is incorrect as a matter of historical fact: Significant segments of mainstream society of the 1960s considered religious objections to racial integration decent and honorable.  Many legal scholars, including most recently Linda McClain in her book, Who’s the Bigot? Learning from Conflicts Over Marriage and Civil Rights Law,[1]and me in a forthcoming article,[2] have noted that in the 1960s, opponents of the Civil Rights Act of 1964 (“CRA”) made religiously grounded arguments similar to the arguments of today’s exemption seekers. Importantly, these religious beliefs were sincere and mainstream.[3] This history stands in contrast to the understanding of Justice Alito and SG Counselor Mooppan at the Fulton oral argument. Opponents of interracial marriage and the CRA “insisted that God was the author of natural inequality and racial difference.”[4]Supporters of segregation made “appeals to natural law, divine law, and unchanging moral principles in [their] opposition” to the CRA[5] and argued “there were decent, sincere people on both sides.”[6] Well-known clergy, such as Rev. Jerry Falwell,[7] and southern ministers Walter C. Givhan, Herman E. Talmage, William Robinson, and Eugene Cook,[8]relied on sincere religious beliefs in opposing the CRA and interracial marriage.[9] In addition to members of the clergy, the religious beliefs against the mixing of the races were “deeply held by many people.”[10]There was “widespread public disapproval on expressly religious grounds”[11] to interracial marriage. Former President Truman publicly voiced his religious opposition to interracial marriage, saying that it “ran counter to the teachings of the Bible.”[12]   Leading Senators from both sides of the aisle, including Robert Byrd and Strom Thurmond, made religious arguments against passage of the CRA. Byrd quoted Leviticus on the Senate floor as the basis of his opposition to the CRA.[13]These lawmakers’ sentiments were shared by “educators, ‘housewives, sorority sisters, and Rotarians.’”[14]It was not until 1995 and 2008, respectively, that the Southern Baptist Convention and Bob Jones University apologized for their roles in using religious beliefs to uphold racism.[15]The historical record establishes beyond dispute that “the religious argument for segregation . . . was a quite widely held belief.”[16] Thus, “just like religious opposition to same-sex marriage in recent years, religious opposition to interracial marriage had a very strong foothold in society” in the years leading up to the U.S. Supreme Court’s decision in Loving v. Virginia.[17]In fact, these views were so mainstream as to end up in the trial court’s decision in Loving: “Almighty God created the races white, black, yellow, malay and red, and he placed them on separate continents. And, but for the interference with his arrangement there would be no cause for such marriages. The fact that he separated the races shows that he did not intend for the races to mix.”[18]Even after the Court struck down Virginia’s law, only twenty percent of Americans approved of interracial marriage.[19] Like today’s exemption seekers, the religious objectors to the CRA and interracial marriage bristled when they were characterized as bigots; they, too, “appealed to conscience, morality, religious teaching, and the Bible as bases for their stance.”[20] Thus, fairly understood, the exemption seekers of the 1960s espoused views, which, though viewed by most people today as offensive, enjoyed a breadth of acceptance and respect by many Americans at the time they were made.[21]  Many then held religious beliefs against interracial marriage and racial integration, just as many people today hold religious beliefs against same-sex marriage and LGBT equality. Moreover, distinguishing religious beliefs concerning interracial marriage and same-sex marriage based on whether such beliefs are honorable also must fail as a legal matter because courts take at face value sincerely held religious beliefs and do so without attaching judgments as to whether the asserted belief is “prejudiced” or “honorable.” This approach is correct on many levels. As a pragmatic matter, such determinations are beyond judicial competence. As a legal matter, courts decline to look behind a sincerely held religious belief “because they must guarantee government neutrality with respect to religions.”[22] Because courts must not consider the “correctness” of sincerely held asserted religious beliefs, they must likewise reject the claim by exemption seekers that courts can classify religious beliefs as “honorable” or “bigoted,” and then make substantive determinations on claims for religious exemptions based on such impermissible characterizations.[23]Thus, even if it is factually true that CSS, the agency in Fulton, is sincere and honorable in its religious beliefs about same-sex marriage—a fact that courts and the public alike should assume—that fact is not relevant given the plain language of the FPO and the city’s contract with family foster care agencies proscribing discriminatory conduct based on race or sexual orientation—as well as religion, sex and other characteristics—without any hierarchy or exception. While CSS resists the notion that religiously based objections to racial integration are relevant to resolution of Fulton, the fact that in both situations claims were based on religious beliefs is the relevant comparison, making Piggie Park and the race analogy instructive. Analogizing as a legal matter between this history of religiously motivated racial discrimination and today’s religiously motivated sexual orientation discrimination does not amount to a charge of bigotry. Both outcomes are simultaneously possible: a finding that CSS is honorable and sincere and a finding that Piggie Park would applyto deny CSS a religious exemption even if the Court were to apply the sort of “heightened scrutiny” that it used before its 1990 decision in Employment Division v. Smith. Race furnishes an analogy that should help the Court fashion the best decision in Fulton—one that avoids getting embroiled in  judgments about which religious beliefs are virtuous or prejudiced. Rejecting the race analogy in Fulton would create doctrinal incoherence by permitting a religious exemption for one protected classification (sexual orientation) but not another (race) notwithstanding the persuasive—if not controlling—Piggie Park precedent suggesting (or compelling) a different result. That resulting doctrinal incoherence may destabilize antidiscrimination law beyond sexual orientation discrimination by, for example, creating new questions about how courts should treat claims for religious exemptions to discriminate based on religion and sex.  Indeed,  Justice Sotomayor asked the agency’s counsel whether an agency that has a religious objection to accepting families of different faiths should get the same treatment they are seeking and counsel did not give an answer. In sum, analogizing to race in Fulton requires no improper governmental assessment of religious beliefs, just as courts made no such assessment in the 1960s. The race analogy, including an analogy to Piggie Park, should thus be used in Fulton to support a decision in favor of the city of Philadelphia, even if the Court chooses to apply some form of “heightened scrutiny.” Kyle C. Velte is Associate Professor of Law at the University of Kansas School of Law. You can reach her by e-mail at kyle.velte@gmail.com [1] Linda C. McClain, Who’s the Bigot? Learning From Conflicts Over Marriage and Civil Rights Law 105, 126 (Oxford University Press 2020). [2] Velte, Kyle, Recovering the Race Analogy in LGBT Religious Exemption Cases (March 6, 2020). Cardozo Law Review, Forthcoming, Available at SSRN: https://ssrn.com/abstract=3549952 or http://dx.doi.org/10.2139/ssrn.3549952. [3] See, e.g., Tisa Wenger, Discriminating in the Name of Religion? Segregationists and Slaveholders Did It, Too, Washington Post (Dec. 5, 2017) (“In battles over slavery and racial segregation, religion and scripture were often cited as justification for maintaining inequality.”). [4] McClain, Who’s the Bigot?, supra note 1, at126. [5] Id. at 126. [6] Id. at 117. [7] Michael Kent Curtis, A Unique Religious Exemption From Antidiscrimination Laws in the Case of Gays? Putting the Call for Exemptions For Those Who Discriminate Against Married or Marrying Gays in Context, 47 Wake Forest L. Rev. 173, 188 (2012). [8] See Shannon Gilreath & Arley Ward, Same-Sex Marriage, Religious Accommodation, and the Race Analogy, 41 Vt. L. Rev. 237, 261 (2016). [9] See id. at 246. [10] James M. Oleske, Jr., The Evolution of Accommodations: Comparing the Unequal Treatment of Religious Objections to Interracial and Same-Sex Marriages, 50 Harv. C.R.-C.L. L. Rev. 99, 109 (2015) [11] Nancy J. Knauer, Religious Exemptions, Marriage Equality, and the Establishment of Religion, 84 UMKC L. Rev. 749, 779 (2016). [12] Oleske, Jr., supra note 10, at 109, citing Truman Opposes Biracial Marriage, NYT (Sept. 12, 1963). [13] 88 Cong. Rec. 13,207 (1964) (statement of Sen. Robert Bryd). [14] Gilreath & Ward, supra note 8, at 262 (internal citation omitted). [15] See John Dart, Southern Baptists Vote to Issue Apology for Past Racism, Los Angeles Times (June 21, 1995); Associated Press, South Carolina: Apology for Racist Policies, New York Times (Nov. 21, 2008). [16] Curtis, supra note 7, at, 190 (citing Jane Dailey, Sex, Segregation, and the Sacred after Brown, 91 J. Am. Hist. 119, 121 (2004)). [17] Id. [18] 388 U.S. 1, 3 (1967). [19] Knauer, supra note 11, at 778. [20] Linda C. McClain, The Civil Rights Act of 1964 and “Legislating Morality”: On Conscience, Prejudice, and Whether “Statements” Can Change “Folkways”, 95 B.U. L. Rev. 891, 894-95 (2015); McClain, Who’s the Bigot, supra note 1, at 8 (“[C]lergy and politicians defending segregation vehemently rejected the label of ‘bigot’ and themselves appealed to religion and conscience.”). [21] See McClain, Who’s the Bigot, supra note 1, at 126 (noting that “religious beliefs about segregation were not ‘fringe’ in the mid-1960s and were sincerely and widely held”). [22] Nelson Tebbe, Reply: Conscience and Equality, 31 J. Civ. Rts. & Econ. Dev. 1, 33 (2018). [23] See generally Carlos A. Ball Against LGBT Exceptionalism in Religious Exemptions from Antidiscrimination Obligations, 31 J. Civ. Rts. & Econ. Dev. 233, 237-38 (2018).

  • Battle for the Constitution: Week of November 9th, 2020 Roundup
    on November 13, 2020 at 23:22

    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.

  • State Legislatures and Presidential Electors
    by Gerard N. Magliocca on November 13, 2020 at 20:44

    There is a notion floating around in some media reports that state legislatures in the closest states of the presidential elections have the power to, in effect, overturn the will of the people in those states or decide that the reported results were somehow fraudulent and should not be recognized. This is incorrect.First, there is language in Chiafalo v. Washington that casts doubt upon the constitutionality of such an act. In that case about state authority over presidential electors, the Court stated at a couple of points that the idea of state legislatures naming electors directly was an obsolete relic.Second, Chiafalo relied heavily on longstanding practice as a gloss on a state’s power to appoint electors. And there is no precedent for a state legislature to appoint electors after a state’s presidential election was held. The examples where legislatures directly appointed electors (early in our history) all occurred in the absence of a presidential election in that state. Even in the disputed elections of 1876 and 2000, no state legislature countermanded the state’s election authorities and ordered a different result. Third, even if you think that the state legislative does have that sort of retrospective power, the Court in Chiafalo made clear that a state’s authority to name presidential electors is subject to review by the courts. Thus, an equal protection claim arguing that a state legislature appointment decision lacked a rational basis would be justiciable. The legislature would then have to produce actual evidence of irregularities or fraud to support its decision.

  • What Georgia voters need to know
    by Andrew Koppelman on November 12, 2020 at 19:08

    Trump’s voters cared about the economy more than they cared about anything else. That’s why, in the upcoming Georgia Senate runoffs, they should vote for Democrats.I explain in a new piece at The Hill, here.

  • Trump v. New York
    by Gerard N. Magliocca on November 12, 2020 at 18:42

    Let’s look ahead to the argument in Trump v. New York, which is scheduled for November 30th. Trump challenges the President’s request to the Secretary of Commerce for two tabulations of each state’s population for the next congressional reapportionment. One figure is the total population of each state (excluding Indians not taxed) as defined by Section Two of the Fourteenth Amendment. The other is the same figure reduced by the estimated number of people who are here illegally. The President is required by law to report a population figure to Congress prior to January 20th, and he could choose to use either figure if the challenge in Trump is rejected.There is a strong argument that the plaintiffs in Trump lack standing. But if the Court chooses to reach the merits, there are several problems with the Government’s position that I want to discuss briefly.1. There is no count of people here illegally. There is only a guess. The census did not, of course, ask people about citizenship because the Government lost that case in the Supreme Court. Nor did the census ask about other aspects of legal status. Whatever discretion the President has in determining each state’s population should extend only to actual counts. Making those determinations based on guesses is the very definition of arbitrary, especially given the constitutional language about enumeration in the census.2. Assuming that the President’s discretion in determining population figures does includes guesses, the Government provides no limiting principle for that discretion. The arguments advanced in the Acting Solicitor General’s brief could easily justify the exclusion of lawful permanent residents, for example.3. The principal case upon which the Government relies, Franklin v. Massachusetts, cuts against their position. Franklin held that the President’s discretion in determining state population totals could be exercised to be more inclusive by counting military personnel overseas as living in their home states. The Court emphasized the “broad connotations” of counting people for the population figures. None of this is consistent with the President’s exercise of discretion to exclude a broad swath of people from the counts for the first time.4. There is no textual support for the Government’s position. And there is nothing in the original public meaning to support their arguments. Meanwhile, there is a longstanding practice of counting people here illegally in the population figures for reapportionment. I look forward to seeing briefing from the challengers, as they have not yet submitted their materials.

  • Two important acknowledgements in the ACA case
    by Marty Lederman on November 12, 2020 at 13:20

    As my fellow amicus Mike Dorf explains, it appears likely the Supreme Court will rule for California and the House of Representatives in California v. Texas either by holding that no plaintiff has suffered an article III injury or by holding that even if there’s a plaintiff with standing and even if the amended Section 5000A is unconstitutional, that provision is severable from the remainder of the Affordable Care Act.Either of those holdings would be correct.  As Mike and I have argued, however, if the Court finds that at least one plaintiff has standing, the easiest and most straightforward way to resolve the case would be for the Court simply to hold that the 2017 Congress did what it intended to do and what everyone inside and outside Congress understood it to have done–namely, to eliminate any coercive force of Section 5000A rather than to enact an “individual mandate” to purchase ACA-compliant health insurance.I’ve already written more than enough about this argument on Balkinization and in our amicus brief.  Here, I’d simply like to flag two important concessions about Section 5000A that occurred during Tuesday’s oral argument.First, Texas Solicitor General Kyle Hawkins conceded that if the amended Section 5000A affords individuals a choice between maintaining insurance and doing nothing (i.e., paying $0), it would be constitutional, even if there’s no enumerated congressional power to enact such a law.  In its brief, Texas had argued that Congress “cannot do anything without an enumerated power,” including, in particular, enacting provisions that have no binding legal effect on anyone.  Of course, Congress does just that thousands of times a year, and has been doing so since the Framing:  As Mike and I explained in our brief, since the very first Congress, “the national legislature has enacted statutes containing provisions that have no binding legal effect, such as ‘Whereas’ clauses; ‘Sense of the Congress’ declarations; ‘It shall be the policy of the United States’ proclamations; congressional ‘findings’; and exhortations of others to act in certain ways or expressions of congressional expectations or aspirations.”  The ACA itself contains many such provisions.  Texas’s response to this common practice was to argue in its brief that Congress has been acting unconstitutionally all along:  “That Congress has purported to pass (supposedly) nonbinding laws and concurrent resolutions that fall outside the scope of its enumerated authority ‘does not, by itself, create power’ to do so.”At oral argument, Hawkins (wisely) abandoned that argument.  He acknowledged to Justice Breyer that “we don’t dispute that inherent in the nature of sovereignty is the power for the government to speak, and so we don’t challenge the idea of truly hortatory statements or Congress giving suggestions or recommendations.”  Just so.  [To be clear, as Mike and I explain in our brief, the actual action Congress took in 2017–reducing a tax from $695 to $0–is authorized under Congress’s Necessary and Proper power to carry into execution its taxing power, because “Congress would be severely deterred from exercising [that] power[] in the first instance if it couldn’t adjust the law to make it less restrictive if and when future circumstances warrant.”  As we further argue, however–and as Hawkins now concedes–Congress would have the authority to enact a “maintain insurance or do nothing” provision in the first instance, even absent an enumerated power.]Therefore the parties are now in agreement that if Section 5000A offers individuals a binary choice where one of the options is to do nothing, it’s constitutional … and that’s the end of the case.Which brings us to the second important acknowledgement in yesterday’s argument, concerning whether the Court can and should construe the amended Section 5000A to offer such a choice.Justice Barrett asked Acting U.S. Solicitor General Jeff Wall this question:Don’t you think … the Petitioners have a point that if, … as you say, NFIB squarely would say that the mandate would be unconstitutional as an exercise of the commerce power, as opposed to the taxing power, that it would be odd for us to construe this statute as [the 2017] Congress saying, “well, we’re going to change the statute in a way that’s going to render it … unconstitutional?”To which Wall responded as follows:I think [Petitioners] have a fair point that if you were trying to define the collective consciousness of Congress, it may be that many or most of its members didn’t understand the legal consequences of what it was doing because all they were doing was something more targeted, and they weren’t thinking about the broader provisions or the findings or any of the rest.  So I think it’s fair to say that they didn’t focus on this.  In other words, Wall was (as I read it) acknowledging what everyone knows to be true–namely, that by zeroing out the Shared Responsibility Payment, the 2017 Congress (and President Trump) intended to “get rid of the mandate” and to eliminate any coercive effect that 5000A previously had.  (Indeed, that’s what Trump and the members of Congress who supported the amendment have been boasting from 2017 to today.  As Mitch McConnell put it, Congress had “accomplished something really remarkable . . . .  We voted to repeal ObamaCare’s individual mandate tax so that low and middle-income families are not forced to purchase something they either don’t want or can’t afford.”)Even so, Wall continued, the 2017 Congress inadvertently did the very opposite of what it intended, and the Court has no choice but to read the 2017 amendment to have that unintended effect–indeed, the antithetical, converse effect–even though it would mean that the 2017 Congress acted in a way that it, and everyone else, understood it lacked the constitutional power to do:But I don’t think it’s fair, Justice Barrett, to say that the Court shouldn’t apply the Act by its terms, just because that would create a constitutional problem. …  [T]hat’s what Congress did, whatever it may have been thinking or whatever it might have intended to do. As Mike and I wrote, if the Court were to accept this invitation, it “would turn the constitutional avoidance canon on its head.”  Of course, if the statute could bear no other reading than the one Wall offered, then the Court would have no choice but to hold that the 2017 Congress accidentally acted in violation of the Constitution.  But the amended Section 5000A does bear another reading–indeed, as Mike and I argue (see pp. 5-13), it’s the far better reading in the wake of the Court’s construction of Section 5000A in NFIB, a construction the 2017 Congress made no effort to change.  More to the point, even if some Justices disagree with us about that, surely construing Section 5000A to offer individuals a lawful choice to do nothing is, at a minimum, an available reading.  Therefore the Court has a “duty” to adopt it.  Jones v. United States, 529 U.S. 848, 857 (2000) (internal citation omitted); see also NFIB, 567 U.S. at 562 (Opinion of Roberts, C.J.).  Doing so would not only avoid a serious constitutional question (indeed, an uncontroverted constitutional violation); it would also honor the Court’s admonition in the previous ACA case (King v. Burwell) that “[a] fair reading of legislation demands a fair understanding of the legislative plan.”  [UPDATE Postscript:  If Acting SG Wall is correct that Congress only inadvertently–and unknowingly–created a command to purchase insurance, that ought to also be sufficient to defeat the argument for nonseverability.  The nonseverability argument is dependent upon the (implausible) notion that the 2017 Congress shared the 2010 Congress’s view that the presence of a “mandate”–even if only effected through moral suasion–was necessary to sustain the efficacy of the insurance regulations.  But if the 2017 Congress didn’t think it was enacting a mandate–and everyone now acknowledges that it didn’t–then its decision to retain the rest of the ACA cannot possibly have depended upon the assumed existence of a mandate.]  

  • Richard Nixon on the 1960 Election
    by Gerard N. Magliocca on November 11, 2020 at 02:38

    One of the curiosities in my library at home is a first edition of Richard Nixon’s book Six Crises. In that memoir, Nixon discussed the 1960 presidential campaign and the allegations of voter fraud by Democrats. He then explained why he decided not to demand a recount (on page 413):If I were to demand a recount, the organization of the new Administration and the orderly transfer of responsibility from the old to the new might be delayed for months. The situation within the entire Federal Government would be chaotic. Those in the old Administration would not know how to act–or with what clear powers and responsibilities–and those being appointed by [John F.] Kennedy to positions in the new Administration would have the same difficulty making any plans.Then too, the bitterness that would be engendered by such a maneuver on my part would, in my opinion, have done incalculable and lasting damage throughout the country. And finally, I could think of no worse example for nations abroad, who for the first time were trying to put free electoral procedures into effect, than that of the United States wrangling over the results of our presidential election, and even suggesting that the presidency itself could be stolen by thievery at the ballot box, It is difficult enough to get defeated candidates in some of the newly independent countries to abide by the verdict of the electorate. If we could not continue to set a good example in this respect in the United States, I could see that there would be open-season for shooting at the validity of free elections throughout the world.Consequently, I made the decision not to support the contest and recount charges. I know that this greatly disappointed many of my best friends and most ardent supporters–but I could see for myself no other responsible course of action.

  • Argument Preview: Court Again Considers Affordable Care Act, this time the entire thing
    by Steven D. Schwinn on November 10, 2020 at 14:58

    Steven D. Schwinn, University of Illinois Chicago Law School The Supreme Court hears arguments today in the latest challenge to the Affordable Care Act–a case that could take down the entire Act. Here’s my preview, from the ABA Preview of…

  • Before (and Before and Before) Severability
    by Neil Siegel on November 10, 2020 at 14:50

    Given all of the focus on severability in Texas v. California, it’s worth bearing in mind how much the Supreme Court would have to get wrong in order to reach the issue of severability.1. Standing is a real stretch. If people have it because they feel coerced even though they aren’t, then standing is not the important constitutional principle that we thought it was, as Jonathan Adler ably explains. 2. Even if there is standing, Congress does not require an enumerated power to force no one to do anything, as Marty Lederman and I have separately explained.3. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything, the “mandate” remains better understood as a condition attached to a tax for purposes of Congress’s taxing power. As explained in my analysis with Robert Cooter of the Taxing Clause — which the Chief Justice’s opinion in NFIB v. Sebelius tracks almost entirely — exactions fall within the scope of Congress’s taxing authority if but only if they are non-coercive, meaning that individuals subject to the exaction have a reasonable financial choice to reject what the government wants them to do and to pay the exaction instead.  Reducing the payment for going without health insurance from around $700 (in NFIB) to $0 (now) makes it less coercive and therefore still a tax.  In other words, what matters most for purposes of the Taxing Clause is whether an exaction is coercive, not whether it raises revenue.  With non-$0 exactions, taxes raise revenue just because they are non-coercive.  The two run together.  With $0 exactions, taxes do not raise revenue even though they are not coercive.  But the reason such exactions do not raise revenue is that they are $0, not that they are coercive and therefore outside the scope of the taxing power.4. Even if (1) there is standing and (2) Congress does require an enumerated power to force no one to do anything and (3) the taxing power no longer supports the “mandate,” the rest of the statute is severable –and obviously so — for the reasons explained by many others.

  • Would the 2017 Congress have thought that its zeroing out of the Section 5000A payment would cause anyone to purchase unwanted insurance?
    by Marty Lederman on November 7, 2020 at 14:17

    With apologies to readers who have no desire to get so far down into the weeds …Yes, Jason, of course I realize that the Court will probably not reach the severability question unless it first finds that the amended Section 5000A imposes a mandate to purchase insurance and that such a mandate is unconstitutional.  Which is one reason I’ve argued that the Court should simply hold that 5000A doesn’t mandate insurance maintenance and be done with it.  (It might be possible for the Court to reach the severability question without resolving the 5000A question (the avoidance canon and all that), but I agree that the most likely sequence is that the Court will consider 5000A first.)It does not follow, however, that the 2017 Congress would have assumed that Section 5000A would coerce or even induce anyone to purchase unwanted insurance.  Every member of that Congress–especially the Republicans who sponsored and approved the zeroing out of the Shared Responsibility Payment–realized, as did everyone else, that five Justices of the Court had just concluded that Congress lacks the constitutional authority to enact a mandate to maintain insurance.  Therefore even if some consumers would — unreasonably — read Section 5000A to mandate purchase of insurance, it’d be absurd for any of them to actually purchase insurance based upon that reading — just as no one feels compelled to comply with the dozens/hundreds of statutes that remain “on the books” today after the Court has declared them to be unconstitutional.All of which is to say that, whatever one’s views might be on the best reading of Section 5000A, no one in 2017 could reasonably have believed that the amendment would cause anyone to purchase insurance–and no one in Congress did think that.  And yet Congress retained all the rest of the ACA, anyway–a fact that, as Abbe argued, is sufficient to find that the rest is severable.

  • A further note on severability and the ACA
    by Jason Mazzone on November 6, 2020 at 22:01

    I appreciate Marty’s comments on my earlier post about severability and the ACA. I don’t find Marty’s analysis persuasive, however, because he mixes merits with severability. In discussing congressional intent, the central inquiry in most approaches to severability, Marty reasons that no reasonable person would understand the ACA after 2017 to impose an insurance mandate. He says also that anybody who thought it did would know that, under what Marty calls the “de facto holding” of NFIB v Sebelius, such a mandate would be an unconstitutional command. For reasons Vik Amar, Evan Caminker and I have explained here, NFIB did not hold that Congress lacks power to command the purchase of insurance and the Court has not in any other case decided the question either. But we can set that issue aside for present purposes. What matters for this short response is that the Court will only get to severability if (in addition to determining the plaintiffs have established injury and the other elements of standing) it finds that there is no saving construction and that the amended ACA can only be understood to command the purchase of insurance in violation of the Constitution. In other words, the severability discussion requires assuming the Court has rejected Marty’s reading of the amended statute—that is, assuming that the Court has found that not only would reasonable people understand the statute to require (unconstitutionally) the purchase of insurance but that there is no reasonable construction that it does not. That is the reading that must be assumed if we are to discuss severability. And the question then becomes: would Congress want the rest of the ACA to survive if its command to purchase insurance (again, that is how the amended ACA must be read for severability to be triggered) were held unconstitutional? What Congress did in 2017 doesn’t answer that question.(Vik, Evan and I have written about some other aspects of California v. Texas that we think the parties and amici overlook or get wrong here, here, and here. We have two more installments in our series coming soon.)

  • Gluck v. Mazzone on ACA Severability
    by Marty Lederman on November 6, 2020 at 20:18

    In a pair of posts earlier today, Abbe Gluck and Jason Mazzone discuss the question of whether the remainder of the Affordable Care Act is “severable” from Section 5000A in the event the Supreme Court declares that Section 5000A is unconstitutional by virtue of a 2017 amendment to that provision.As I understand him, Jason agrees with Abbe on all of the textual and structural arguments she offers for severability in the second half of her post.  So do I.  And therefore in some sense their dispute is much ado about nothing:  There’s consensus among us, and virtually every other serious observer, that the “finding” enacted by the 2010 Congress in 42 U.S.C. 18091(2)(I), which remains in the Act after the 2017 amendment–stating that “[t]he [minimum coverage] requirement [in Section 5000A] is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold”–would not require invalidation of the entire Act, or even of the “guaranteed issue” and “community rating” provisions of the Act (the so-called “preexisting conditions protections”), upon a finding that Section 5000A is unconstitutional.Even so, Jason takes issue with another argument for severability that Abbe flags earlier in her post–namely, that there’s no need for the Court to intuit, or assume, what the 2017 Congress would have, or must have, intended with respect to the enforceability of the rest of the ACA if Section 5000A no longer induces individuals to purchase ACA-complaint health insurance–no need to closely parse the text and context of Section 18091(2)(I)–because we already know what the 2017 Congress thought:  It understood, says Abbe, that Section 5000A would no longer coerce anyone to buy insurance, and it nonetheless decided to leave the rest of the Act intact, assuming and knowing full well that all those other provisions would remain operative and enforceable even while Section 5000A was rendered a dead letter.Jason’s retort, if I understand him correctly, is:  Not so fast.  Even if the 2017 Congress deliberately repealed the only means by which the government could enforce Section 5000A’s so-called “mandate” to maintain insurance, the Court has to accept (for purposes of severability analysis) the predicate of the plaintiffs’ argument, which is that the 2017 Congress assumed the amended Section 5000A would, in fact, cause some or many people to purchase insurance they otherwise wouldn’t purchase:  We have to assume, according to Jason, that the 2017 Congress “was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry)”–even in the absence of any enforcement mechanism–to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended.”That’s not right.  There’s no basis for thinking, or even assuming, that the 2017 Congress thought anyone would feel compelled to purchase insurance by virtue of the 2017 amendment to Section 5000A.For one thing, no reasonable person would read the amended Section 5000A to create even a statutory “requirement,” or “obligation”–a “mandate”–to purchase insurance.  As I’ve explained in this space countless times and elaborate in my amicus brief with Mike Dorf, the only reasonable reading of the 2017 Amendment–the reading that the President, every member of Congress, every media source, and the entire public have understood from December 2017 to the present day–is that the 2017 Congress and Donald Trump did not enact a “mandate” to maintain insurance; to the contrary, the whole point of that amendment was to eliminate any coercive effect of Section 5000A by offering individuals a lawful choice between purchasing insurance and doing nothing.  (And as Mike and I argue in our brief, that simple holding is enough to resolve the case, without the need even to reach the question of severability.)  There’s simply no reason at all to think that the 2017 Congress believed that anyone (no reasonable person, anyway) would purchase unwanted insurance because of a “sense of legal obligation” engendered by the 2017 statutory amendment.But even if there were some such unreasonable people out there (such as, perhaps, the individual plaintiffs in the case) who mistakenly read the amended Section 5000A to require them to purchase insurance, those people–like the plaintiffs themselves–would also know that such a mandate would be unconstitutional per the views of a majority of the Court in NFIB v. Sebelius.  Indeed, everyone in the case, from the plaintiffs to the federal government to the Justices to the petitioners, agrees that if Section 5000A were a mandate it would be unconstitutional under the de facto holding of NFIB.  Therefore no one would reasonably conclude that they had a legal obligation to purchase insurance for that independent reason (i.e., because Congress lacked any power to require such an obligation), even if they mistakenly concluded had tried to do (or had inadvertently done) just that in its 2017 amendment to Section 5000A.Either way, it wouldn’t be reasonable for anyone to purchase insurance because of a perceived legal obligation to do so resulting from the 2017 amendment: either the statute wouldn’t require it (which is correct) or, even if it does, the statute was then outside Congress’s authority to enact.  As it happens, and not surprisingly, that’s what everyone in Congress reasonably believed, too, about what individuals would do in the wake of the 2017 amendment.  And yet that 2017 Congress, knowing that the amended Act wouldn’t cause any reasonable people to purchase insurance, nevertheless chose to retain the pre-existing conditions provisions of the ACA–and the rest of the Act, too.  Abbe is therefore right that that’s an independent and sufficient reason to find severability, even without resort to the additional slam-dunk arguments she offers in the bulk of her post._______________P.S.  That said, I think Abbe herself modestly contributes to the misunderstanding by repeating certain common mischaracterizations of what the NFIB Court and the 2017 Congress did.  She writes, for example, that the Court in NFIB “upheld the mandate as constitutional under Congress’ taxing power because it was enforced by a tax penalty.”  But that’s not right.  As Mike and I explain, the Court upheld Section 5000A under Congress’ taxing power because it concluded that that provision was best read not to contain a mandate, let alone a mandate enforced by a “penalty.”  To the contrary, the Court found that the “shared responsibility payment” was a tax rather than a penalty for disregarding a “mandate,” and that payment of that tax was one of two options that Congress had made legally available to individuals.Abbe also writes that “it’s possible the Court will decide the entire case by simply holding the mandate is still a tax, even though its penalty has been dialed back to zero for now (it can always be increased).”  But the “mandate” was never a “tax.”  What the Court held was that because the personal responsibility payment was a tax option, there was no mandate at all.  Nor did Congress “dial back” “its penalty” to zero, because, again, there wasn’t any penalty–merely a tax.  Finally the 2017 Congress did, indeed, zero out the payment amount, but that doesn’t mean that option in Subsection 5000A(b)–pay $0–is “still a tax.”  Obviously, it’s not a tax–it’s an option to do nothing.  And therefore it’s not the taxing power that affords Congress the authority to tell people to “do nothing.”  Yet, as Mike and I explain, it is well within Congress’ authority both to repeal or reduce a tax, and to offer people a lawful choice between maintaining insurance and doing nothing.

  • Mitch McConnell might not endanger the planet
    by Andrew Koppelman on November 6, 2020 at 18:42

     Mitch McConnell, who will almost certainly remain as Senate Majority Leader, is now at the peak of his power.  No longer constrained by the need to defer to Donald Trump, he is the new de facto head of the Republican Party.  He will block any legislation that would help the Democrats keep the presidency.  How can Biden work with someone like that?   Climate change is the direst threat that the human race has faced in centuries.  Biden’s plans to address it are in big trouble.  But he might still be able to accomplish a lot, as long as Republicans think he won’t get much political credit for it.  I explain in a new piece at The Hill, here.

  • Severability in California v. Texas: Significance of What Congress Did in 2017?
    by Jason Mazzone on November 6, 2020 at 17:05

    In her recent interesting post on severability in California v. Texas, Professor Gluck writes that “the fact that the 2017 Congress left the rest of the ACA standing gives us the strongest evidence possible that Congress intended the statute to survive” if the insurance mandate (now without a potential tax penalty) were found unconstitutional. The ACA defenders make a similar point in their briefs. It can’t be right. We certainly know that in 2017 when Congress eliminated the potential tax penalty it must have wanted to preserve the other provisions of the ACA because that is what Congress actually did. But we can’t also say that Congress in 2017 would have wanted those other provisions to survive if the amended (to reduce the potential tax penalty to zero) mandate provision were invalidated. As Vik Amar, Evan Caminker and I recently wrote on this issue:The ACA’s defenders argue that the obvious and compelling indication of congressional preference is what Congress actually did in 2017. We agree that 2017, rather than 2010, is the proper focus of the inquiry into congressional intent. It was, after all, the 2017 Congress that (under the challengers’ theory) introduced the constitutional infirmity; we think it proper to ask what the Congress at the time the constitutional flaw arose would have wanted the rest of the Act to look like had it foreseen that courts would determine that zeroing-out of the tax penalty made the insurance requirement constitutionally invalid. . . . And when we look at what Congress did in 2017, we see that it left in place every other provision of the ACA. For the ACA’s defenders, that would seem to end the matter.But this is too quick. The challengers’ severability theory, which must be engaged on its own terms, is essentially that Congress, after eliminating the tax penalty, was counting on the mandatory nature of the insurance requirement (and the resulting sense of legal obligation among the citizenry) to keep the number of people procuring insurance high enough to make the other parts of the Act function as intended. Whether that theory is plausible—as a matter of the post-amendment statutory text or as a matter of reasonable factual economic expectation by Congress—is another matter . . . . But the ACA’s defenders must confront the theory head-on. They cannot avoid the challengers’ argument, which says that invalidating the requirement undermines Congress’s 2017 actual intent, simply by observing that Congress could have repealed, but did not repeal, the entire ACA when it acted three years ago.

  • The Affordable Care Act Does Not Have An Inseverability Clause
    by Abbe Gluck on November 6, 2020 at 11:50

    There are a lot of troubling things about California v. Texas, the existential challenge to the Affordable Care Act (ACA) coming to the Supreme Court next week. At the highest level, as I have explained elsewhere in a bipartisan amicus brief, the ACA’s opponents are asking the Court to overrule the democratically expressed decision of Congress—after 70 failed attempts to repeal the ACA—to let the ACA stand without an enforceable insurance-purchase mandate.  At a more detailed level, the ACA’s opponents attempt to mislead the Court, and the public, into believing that Congress somehow inserted an express direction in the law to strike down the entire 2,000- page ACA if the mandate is ruled unconstitutional.  The ACA has no such “inseverability clause.” The language the opponents cite is language Congress used for an entirely different purpose—to explain why the mandate was a permissible exercise of Congress’s commerce power, and those arguments were rejected by the Court in 2012.  The language has nothing to do with inseverability and in fact, is completely different from the words Congress consistently uses throughout the U.S. Code when it actually directs courts to render statutes inseverable. The Barrett hearings made “severability” a household name, as far as legal doctrines go. Severability is a settled doctrine of statutory interpretation that guides courts in deciding what to do with the rest of a statute when one provision is invalidated. As reaffirmed in two different Supreme Court opinions last term—one by Chief Justice Roberts and one by Justice Kavanaugh—the doctrine mandates a “strong presumption” in favor of severing—that is, excising only the offensive provision—and letting the rest of the statute stand unless Congress expressly indicates otherwise.  Both Justices analogized the rule to a “scalpel rather than a bulldozer,” emphasizing the Court’s “decisive preference for surgical severance rather than wholesale destruction, even in the absence of a severability clause.” Applied faithfully to the ACA, the severability doctrine clearly dictates that, should the Court invalidate the mandate, the rest of the ACA—which, remember, includes not only pre-existing conditions protections, but also the Medicaid expansion; the new Medicare drug benefits; the insurance subsidies that benefit families making up to some $100,000 a year; the prohibition on annual and lifetime caps and copays for preventative care and the allowance for young adults to stay on parents’ plans for everyone (not just those on government programs); the public health provisions; the generic biologic provisions; and so much more—all survives. But the opponents misleadingly assert that Congress said otherwise, pointing to a congressional-findings section in the ACA that is not about severability at all, but rather was expressly inserted to justify Congress’s power under the Commerce Clause—and that is arguably null and void at this point since the Court rejected the Commerce-Clause grounding for the mandate in NFIB v. Sebelius in 2012.  The findings relied on are buried in one subsection, of one part, of one subtitle, of the ten-title ACA—they have nothing to do with the survival of the rest of the Act. If that weren’t enough, the language in the findings that ACA opponents cite is boilerplate text that Congress has used in scores of other statutes, not for the purpose of severability, but, again, to justify Congress’s commerce power. And to make the absurdity of the argument as clear as it could be, reading the entire subsection as the opponents would mean that not only the ACA goes down but also that the Public Health Service Act and the nation’s entire pensions and employee benefits regulatory system—the ERISA law—go down too. Our textualist Court pays attention to Congress’s words, a statute’s organization, and how Congress routinely expresses itself throughout the U.S. Code.  When Congress does direct inseverability, it always highlights that it is doing so, and consistently uses language entirely absent from the ACA’s findings—including always using the word “invalid.” The ACA’s text, combined with Congress’s consistent drafting practices, should make this an easy case for a Court that is proud of its textualism. What California v. Texas Is About The way the question comes up in California v. Texas goes back to the day the ACA was signed, March 23, 2010. That same day, opponents brought a constitutional challenge to one provision of the law—the individual-insurance purchase requirement—arguing that Congress’s commerce power did not allow it  (as they characterized it, over objections of health policy experts) to force people into markets they were not already in; the infamous “can-Congress-make-you-eat-your-broccoli” argument.  When the case reached the Court in 2012, the Chief Justice, along with four colleagues, agreed with the challengers on that point but the Chief’s controlling opinion (joined by four different justices) upheld the mandate as constitutional under Congress’ taxing power because it was enforced by a tax penalty. Fast forward to 2017.  After numerous attempts to administratively strangle the law and more than 70 attempts to legislatively repeal it, Congress sought a symbolic win. In the end, it found the votes only to zero-out the penalty associated with the mandate, and did so via the Tax Cuts and Jobs Act of 2017.  ACA opponents now argue that because Congress zeroed out the penalty, the mandate is no longer a tax and so is no longer a valid exercise of Congress’s tax power. Tax experts dispute the merits of that argument, and it’s possible the Court will decide the entire case by simply holding the mandate is still a tax, even though its penalty has been dialed back to zero for now (it can always be increased).  But either way, if the mandate goes, it matters little as a practical matter. The mandate has been long underenforced; the ACA markets have adjusted to a healthcare market without it; and the 2017 Congress relied on evidence that the ACA did not need a mandate to function when it got rid of the penalty. Statutory experts and health experts are more interested in the next question—the now-famous severability question.  If the mandate is struck, what happens to the rest of the ACA? The Findings and Why Arguments Relying on them Are Misleading Back to the findings.  The severability doctrine is notabout the Court’s preferences; it is about Congress’s preferences. The doctrine requires the Court to determine what Congress would have wanted to happen to the rest of the law absent the offensive provision.  Sometimes the doctrine therefore puts the Court in a difficult guessing game about congressional intent. Sometimes the Court also looks to whether the statute can continue functioning without the provision as proxy for, or backup to, its guess as to what Congress wanted.  Neither of those sometimes-difficult inquiries are needed here: The 2017 Congress made crystal clear it wanted the rest of the ACA to remain standing. That should be the end of it. (Opponents make another argument, the fallacies of which Jonathan Adler and I explain hereand here, claiming that the 2010 Congress’s views override the 2017 Congress’s. Needless to say, that’s unconstitutional: The views of an earlier Congress cannot be entrenched over the views of a later one. Subsequent Congresses are always allowed to change their minds and amend statutes and pass new laws.) Justice Kavanaugh’s severability opinionlast term, Barr v. American Assn. of Political Consultants, was even clearer on severability, saying that the reason the presumption is so strongly in favor of severing is to avoid the difficult intent-based inquiry.  As such, he wrote: “We will presume that Congress did not intend the validity of the statute in question to depend on the validity of the constitutionally offensive provision unless there is strong evidence that Congress intended otherwise.” So the ACA case hangs whether there is “strong evidence that Congress intended otherwise.”  I have already explained why the fact that the 2017 Congress left the rest of the ACA standing gives us the strongest evidence possible that Congress intended the statute to survive (Senator McConnell himself statedat the time “we obviously were unable to completely repeal and replace”). But to find a thin thread on which to hang, the ACA’s opponents have seized on language in the ACA’s now defunct Commerce Clause findings that reads—as they pull it out of context: “the requirement is essential to creating effective health insurance markets in which improved health insurance products that are guaranteed issue and do not exclude coverage of pre-existing conditions can be sold.”  Even on the dubious assumption that these findings somehow still have any validity after NFIB, they have nothing to do with severability. As I detail in the Yale Law Journal, there are countless things wrong with this argument from a textualist and settled statutory-interpretation-doctrine perspective. The big three are 1) the text: 2; the location: and 3) Congress’s consistent way of expressing inseverability throughout the U.S. Code. 1)     Text The findings provision expressly states, in language opponents nowhere cite—right before the language opponents do cite—that the language that follows is about the commerce clause: “The individual responsibility requirement provided for in this section … is commercial and economic in nature, and substantially affects interstate commerce, as a result of the effects described in paragraph (2).  2)EFFECTS ON THE NATIONAL ECONOMY AND INTERSTATE COMMERCE.—The effects described in this paragraph are the following:”  Those “effects on the national economy and interstate commerce” are what the opponents cite. If that weren’t enough, the language right after the subparagraph that opponents cite repeats that “insurance is interstate commerce subject to Federal regulation.” In other words, opponents argue Congress was explicitly talking about inseverability, when Congress told us expressly it was talking about something else entirely. By the way, the rest of the language, in the subparagraph right before the one opponents cite also says the mandate was essential to the markets in which ERISA and Public Health Service Acts operate.  So on their reading, the nation’s entire pension system, and the public health laws (relied on during the COVID-19 crisis) also should be struck down by the Court. That is such an absurdity that it makes the point—already completely clear—that these provisions have nothing to do with inseverability. 2) Location The subparagraph cited by opponents is not the kind of general statutory-findings section we typically find at the beginning of an Act. Rather, it is one of several, section-specificfindings in the 2000-page ACA. These findings are buried at the end of Title I of the ten-title ACA; they sit in the penultimate of seven separate subtitles of Title I and do not even apply to all of that subtitle, the second half of which, in a separate part, deals with the entirely distinct employer mandate. All of the other private insurance reforms sit in different subtitles before the one containing the findings, and the public insurance reforms, including reforms to Medicare and Medicaid, come after it, in different titles, subtitles, and parts of the law. The findings invoked by the ACA’s opponents are sandwiched between the two paragraphs discussed above that explicitly state that the findings are there to “describe[]”how the mandate is “commercial and economic in nature, and substantially affects interstate commerce.” It is nonsense to argue they are a poison pill for the entire law. 3) Congress’s established legislative practices when it writes inseverability clauses As I have shownin detail, the language of essentiality to markets is boilerplate language that Congress has used in countless provisions in the U.S. Code—almost always for purpose of justifying the commerce power and never for purposes of severability.  That should be enough. But the proverbial nail in the coffin is the fact that Congress has shown as clearly as day that it knows how to draft an inseverability clause and in fact does it the same way every time. Just last term, Justice Kavanaugh wrote:   “we usually presume differences in language convey differences in meaning. When Congress chooses distinct phrases to accomplish distinct purposes, and does so over and over again for decades, we may not lightly toss aside all of Congress’s careful handiwork. … The Court has likewise stressed that we may not read a specific concept into general words when precise language in other statutes reveals that Congress knew how to identify that concept.” (internal citations omitted).  The House and Senate drafting manuals discourage severability clauses because the Court already applies a strong presumption in favor of severability, but the manuals encourage express inseverability clauses for the same reason. These clauses are all written in a particular, specific way, as patterned in the drafting manuals.  Every inseverability clause in the U.S Code appears to be broken out by a separate section, subsection or paragraph. Each one uses the same boilerplate language: Every single one uses the word “invalid.” That word appears nowhere in the ACA’s findings. And when only partial inseverability is desired, Congress is very specific (as Congress’s drafting manuals themselves direct), and, again, always use “invalid. My article provides many examples. Here is one:  “NONSEVERABILITY. If any provision of this title or the application of any provision of this title to any person or circumstance is held invalid by reason of a violation of the Constitution, the entire title shall be considered invalid.”  And here is what partial inseverability looks like when Congress actually says it:  “SEVERABILITY. If any provision of this Actor of any amendment made by this Act, or the application of any such provision to an 1person or circumstance, is held to be invalid for any reason, the remainder of this Act and of amendments made by this Act, and the application of the provisions and of the amendments made by this Act to any other person or circumstance shall not be affected by such holding, except that each of subclauses (II), (III), and (IV) of section 205(d)(2)(I)(i) is deemed to be inseverable from the other 2, such that if any 1 of those 3 subclauses is held to be invalid for any reason, neither of the other 2 such subclauses shall be given effect.” Not only Justice Kavanaugh, but virtually every Justice from Gorsuch to Sotomayorhas subscribed to the principle that when Congress shows it knows how to draft something explicitly, the Court will not assume that Congress used less direct language elsewhere to accomplish the same objective.  One final point. The ACA opponents reference the Obama-era DOJ’s 2012 position that the mandate was inextricably linked to some of the insurance provisions. None of that matters here. In 2012, the parties were all trying to guess what Congress would have wanted to happen if the mandate was stuck down.  The 2017 Congress answered that question itself and made guessing unnecessary because the 2017 Congress itself neutered the mandate.  But even the 2012 DOJ position was not that Congress had written inseverability into the ACA with the mandate’s commerce findings. Rather, the DOJ position was that, even though the Commerce Clause findings were not an actual inseverability clause, the findings helped to answer a difficult evidentiary question back then as to what Congress would have wanted to do with the rest of the ACA if the mandate had been struck down. The 2017 Congress, acting with years of data about how the ACA actually functioned on the ground, was constitutionally entitled to reach a different decision and clearly did so.  Justice Kavanaugh warned just last term that “[c]onstitutional litigation is not a game of gotcha against Congress, where litigants can ride a discrete constitutional flaw in a statute to take down the whole, otherwise constitutional statute.”  As textualists well know, and the Court’s own textualists’ questions should show on Tuesday, respecting Congress means understanding Congress, and reading what Congress actually wrote and how Congress wrote it.  (cross-posted at Take Care)  

  • Thoughts on the Fulton Oral Argument
    by Marty Lederman on November 6, 2020 at 02:10

    Early yesterday I published a long post here in which I tried to identify the various arguments that are salient in the Fulton case–and those that shouldn’t be.  The fascinating and wide-ranging oral argument in the case yesterday raised virtually all of the issues I discussed.  As I suspected, the Justices didn’t seem too interested in whether they should overrule Employment Division v. Smith, because the outcome in this case doesn’t turn on that question, in either direction.Many of the Justices appeared to be troubled by Philadelphia’s refusal to contract with Catholic Social Services (CSS) to be a Family Foster Care Agency (FCA) unless CSS agrees not to discriminate against same-sex couples when it certifies whether particular applicants are qualified to be foster parents for children in the City’s custody.  As far as I could tell, however, the Justices were anything but settled about how to situate those concerns within the Court’s Free Exercise doctrines–indeed, they expressed deep uncertainty about just which of those doctrines is, and is not, pertinent to the case.So I thought I’d offer a few additional thoughts here on the major themes of the oral argument.  So as not to make this post overly long, I’ll assume familiarity with my post from yesterday, where I discuss some of these matters in greater detail.Is Philadelphia’s Nondiscrimination Condition Generally Applicable?In my post yesterday, I suggested that the case might possibly turn on a rather narrow, fact-dependent question–namely, whether the City has discriminated against CSS on the basis of its religious opposition to same-sex marriage.  That’s the basis of the Solicitor General’s argument on behalf of CSS, and it was the focus of CSS’s reply brief.  In the oral argument, Counselor to the SG Hash Mooppan repeatedly urged the Court to decide the case on this case-specific theory–in particular, on the ground that the nondiscrimination condition in Philadelphia’s contract with FCAs is not “generally applicable” (at least not in practice).On its face, that condition, found in Section 15.1 of the current standard contract, is unconditional and admits of no exceptions:Provider shall not discriminate or permit discrimination against any individual on the basis of actual or perceived race, ethnicity, color, sex, sexual orientation, gender identity, religion, national origin, ancestry, age, disability, marital status, source of income, familial status, genetic information; domestic or sexual violence victim status; or Human Immunodeficiency Virus (“HIV”) infection status. Mooppan insisted, however, that in practice the City has recognized “a slew of” (or “myriad”) exceptions to this nondiscrimination rule for conduct motivated by secular reasons and, “having exempted comparable secular conduct, [the City has] thereby devalu[ed] CSS’s religious concerns,” which allegedly violates the Free Exercise Clause, even within the context of performance of a government contract.  Such exceptions, argued Mooppan, prevent the condition from being “generally applicable,” thus triggering heightened scrutiny, and they “undermine” what might otherwise be a compelling City interest in nondiscrimination in the family-certification process, thereby making it impossible for Philadelphia to satisfy that heightened scrutiny.  In support of this argument, Mooppan and CSS lawyer Lori Windham repeatedly cited Church of Lukumi Babalu Aye, Inc. v. City of Hialeah (1993).The problem with this argument is that there really isn’t much, if any, evidence of such underinclusiveness by virtue of City-permitted exceptions.  [UPDATE:  Michael McConnell writes that “[i]t is undisputed that the City carves out other exceptions from its nondiscrimination policy, for other foster-care organizations; moreover, there is a catch-all exceptions policy big enough to drive a truck through.”  Neither of these assertions is true:  It is very much disputed whether there are other exceptions for other foster-care organizations (because there aren’t any); and there’s no catch-all exceptions policy, let alone a truck-sized one.]Mooppan pointed to three alleged exceptions, but none of them appears to be remotely comparable to an FCA categorically refusing to certify families as eligible to care for foster children because of a protected characteristic.i.  Mooppan argued that “[f]oster parents can be denied the ability to serve as foster parents because of their disability.”  This is the only purported example he offered involving an exclusion of prospective parents on the basis of a protected characteristic.  Mooppan was referring here to the provision of state law that instructs FFCAs, “when assessing the ability of applicants for approval as foster parents,” to consider whether the applicant has “[a] demonstrated stable mental and emotional adjustment,” and that if there’s “a question regarding the mental or emotional stability of a family member which might have a negative effect on a foster child,” to “require a psychological evaluation of that person before approving the foster family home.”  Even if this instruction were inconsistent with Philadelphia’s nondiscrimination requirement for FCAs, it could hardly be said to undermine the City’s compelling interests, because it’s (at most) a preemptive state law, not an “exception” the City itself has promulgated.  In any event, it’s obviously not inconsistent:  If a mental disability prevents a prospective parent from being able to adequately care for a foster child, accounting for that fact in the certification process surely wouldn’t be a form of proscribed “disability discrimination” under the City’s contract (as Justice Sotomayor remarked, it’d simply be an assessment that “they can’t do certain things for the child which are required”).  Nor would such a case-by-case evaluation of mental fitness be remotely comparable to refusing even to consider whether any same-sex couples qualify under state law as capable of caring for foster children. ii. Mooppan also stated that the City “has tolerated racial and ethnic-based outreach to … foster parents.”  But as a City administrator testified, agencies may target their outreach efforts in particular communities only if they serve “all members of the City of Philadelphia.”  Such focused outreach is not a form of prohibited “discrimination against any individual.”  As the City noted in its brief, “[h]istorically black colleges do not discriminate, for instance, by establishing programs to ‘disproportionately appeal to’ black students, provided they are ‘open to all on a race-neutral basis’ (quoting United States v. Fordice (1992) (Thomas, J., concurring)).  And DHS has reasonably concluded that encouraging outreach toward historically underserved communities enhances rather than undermines its goals of maximizing the pool of foster parents and making its foster-care system more inclusive.”iii. Finally, Mooppan noted that the City itself might conceivably consider race when deciding where to place foster children.  According to City counsel Neal Katyal, Philadelphia has only done so once:  where a child in City custody had used particular racial slurs, the City DHS avoided placing that child in a family with members of the race he had insulted.  In any event, as the Department of Health and Human Services notes, considering race in a placement decision, “on an individualized basis where special circumstances indicate that their consideration is warranted” in assessing a child’s best interests, doesn’t amount to prohibited “discrimination against” families on the basis of their race.  Nor does such a case-by-case consideration of race by the City itself in its assessment of where to place a particular child bear upon, let alone undermine, the City’s interests underlying its nondiscrimination requirement at an earlier, different stage of the process–namely, in deciding who satisfies the state-law criteria to be eligible to serve as foster parents.  (I assume the Chief Justice was getting at something like this when he asked Mooppan whether a government’s rules have to be neutral and generally applicable “across the board” in the context of contracting.)  * * * *As the Court explained in Lukumi, and as the SG himself acknowledges in his brief in Fulton, not all exceptions or anomalous applications foreclose a rule’s “general applicability” for Free Exercise purposes.  Heightened scrutiny is only appropriate where the state “fail[s] to prohibit nonreligious conduct that endangers [the asserted governmental] interests in a similar or greater degree than [religious conduct]” (Lukumi).  It seems evident to me, as I wrote yesterday, that the examples cited by Mooppan and Windham don’t undermine the City’s interests in enforcing its nondiscrimination requirement at all, let alone to the same degree as would a decision by the City to allow FCAs to turn away applicants at the start if they have one of the protected characteristics.  As Justice Barrett suggested, the alleged exemptions don’t offer an “apples-to-apples” comparison, in contrast to her hypothetical in which a state grants exemptions for Sunday Sabbath observance but not Saturday Sabbath observance.  It’s more like apples-to-elephants.  (Nor does this case remotely resemble Mooppan’s hypothetical in which a state prison allows contractor or employee prison guards to bring peyote into the facility but not to bring in hoasca tea (a reference to the discriminatory treatment at issue in the Court’s decision in Gonzales O Centro Espírita Beneficente União do Vegetal  (2006)).   Accordingly, even taking the SG’s alleged exceptions at face value, they wouldn’t trigger heightened scrutiny for lack of “general applicability.”One other point on the City’s alleged underinclusiveness is worth noting:  As Justice Kagan noted to Mooppan, if his examples truly did “undermine” the City’s interest in eliminating sexual-orientation discrimination, presumably they’d likewise undermine the state’s interest in proscribing the other forms of discrimination listed in the standard contract, including discrimination based upon a parent’s race or sex or religion.  (After all, at least one of Mooppan’s alleged exemptions involves race itself, whereas none of them is an example of permitted or tolerated discrimination on the basis of sexual orientation.)  Mooppan insisted that the race-discrimination prohibition wouldn’t be affected but, as Justice Kagan noted, he didn’t offer a reason why not.  And as Katyal noted, that’s not merely a matter of abstract concern:  CSS itself apparently required prospective parents to provide a clergy letter attesting that they were religiously observant.  And the largest government-funded FCA in South Carolina, Miracle Hill, allegedly refuses to work with families, including Jewish and Catholic families, that don’t adhere to its faith. License or Contract Condition?:  Is Philadelphia Acting in a Sovereign, Regulatory Capacity or in its Managerial Capacity?As I discussed yesterday, a major theme of the City’s and the private respondents’ briefs is that, even if the Court were to overrule Employment Division v. Smith and return to its pre-1990, Sherbert/Yoder Free Exercise jurisprudence, CSS would be unable to demonstrate a constitutionally cognizable burden on the exercise of its religion because the City is merely directing its contractors about how to perform their jobs on behalf of the government rather than regulating private individuals in its capacity as “sovereign.”  The Court has announced or applied this distinction in many different constitutional contexts.  See Engquist v. Ore. Dep’t of Agric./NASA v. Nelson/Waters v. Churchill/Garcetti v. Ceballos/Board of County Commissioners v. Umbehr/Rust v. Sullivan/Bowen v. Kendrick/AID v. AOSI/etc.  And it’s very easy to see why that distinction makes sense.  Justice Breyer’s two hypotheticals yesterday starkly illustrate the point:  If a company owned by observant Jews were awarded a contract to deliver particular foods to military bases, would the Free Exercise Clause give the owners a right to replace the Army’s order for pork with some other meat?  If someone with a religious conviction that men and women shouldn’t commingle received a contract to drive a city bus or train, would that person have a constitutional right to insist that men and women sit separately on the public bus?  These questions–and countless other examples that are easy to conjur–answer themselves.Many of the Justices yesterday (including the Chief Justice and Justices Thomas, Alito, Sotomayor, Gorsuch and Barrett) appeared to be very interested in figuring out on which side of this managerial/regulatory divide the Fulton case falls.  According to CSS attorney Windham, although the case might appear to be an example of the City merely acting in its “managerial” capacity, prescribing the way in which FCAs perform their governmental functions, in fact “the City is reaching out and telling a private religious ministry which has been doing this work for two centuries how to run its internal affairs”–to “tell religious groups who have been doing this prior to when the City got involved we’re going to exclude you, you can no longer carry out this work unless you take actions that are contrary to your faith.”This is, I think, simply wrong.  As I explained yesterday, in the absence of an FCA contract, CSS–or anyone else–is free to engage in virtually all of the charitable functions regarding vulnerable youth that CSS has traditionally performed.  Lori Windham may be right that CSS “has exercised its faith by serving at-risk children in Philadelphia for two centuries,” but the denial of the FCA contract in no way precludes CSS from “serving at-risk children in Philadelphia.”  CSS is not even precluded from offering assistance to children in the foster care system, and the families that care for them.  Indeed, as Neal Katyal stressed repeatedly yesterday, CSS continues to receive $26 million a year from the City to provide case-management services to foster children!  It also continues to run two congregate-care facilities, which provide group housing for children who have been removed from their homes because of abuse or neglect.  And CSS remains free to use its own resources to provide further services to children in foster care and to operate its private adoption program, in which it assists birth families who choose to place their infants for adoption.  (Justice Barrett asked whether it’s permissible to recruit foster families without an FCA contract.  I’m fairly certain the answer to that question is “yes”:  Anyone can, on their own time and with their own resources, search out families to be foster parents; train those persons about how to be effective foster parents; and recommend that the City (and its FCAs) consider certifying such persons as eligible to be foster parents.)The principal thing CSS cannot do without an FHA contract is to perform the delegated governmental function of deciding whether other private persons are legally eligible under state law to become foster parents to care for children who are wards of the City–a function the Pennsylvania DHS would perform in the absence of a City contract with FCAs, and a function that CSS could never have performed, using its own resources, outside its role as contractor of the City and delegate of the Pennsylvania DHS. Is 1920, not 2020, the Pertinent Constitutional Baseline?The most surprising, and potentially alarming, thing about the oral argument yesterday was the suggestion by Lori Windham, which appeared to find favor with (or at least capture the interest of) some Justices, that perhaps the constitutional analysis should change by virtue of the fact that the governmental function in question was once not a government function, but was instead something done primarily or exclusively by private parties, who were able to act without the conditions that the government now imposes upon operations done on its behalf.  According to CSS’s brief, the Catholic Church opened its first orphanage in Philadelphia in 1798.  According to a 1951 study cited by CSS, Pennsylvania began significantly regulating the treatment of dependent and neglected children in 1883, and then, when the legislature created the Pennsylvania Department of Welfare in 1921, the State itself became principally responsible for the performance and regulation of such functions.  (I don’t know offhand whether the history is more complicated than this–for example, to what degree private orphanages and the like were regulated before 1883, just as Sally Gordon has shown that churches themselves were during the Nineteenth Century.)  Windham appeared to be suggesting that because CSS and its predecessors were largely unregulated in their treatment of at-risk children 100 or 140 years ago, any restrictions the City imposes today on the operation of its own dependent-care services–a century or more after the function was “monopolized” by the government–should be assessed as regulatory burdens on CSS’s own ministry (as it existed in 1882 or in 1920?), rather than merely as conditions on a contract to perform government services.  Justice Barrett’s hypothetical to Neal Katyal captured the flavor of this idea:Well, let’s imagine that the state takes over all hospitals and says from now on, you know, we are going to be responsible for hospitals, but we will contract with private entities to actually run them.  And so there’s a Catholic hospital [that] gets a contract with the City to run it.  In fact, it’s a Catholic hospital that’s [been] in existence before the state adopts this policy.  And … the contract the state gives everyone [provides] that you can get some exceptions for [performing] some medical procedures, but every hospital has to perform abortions.  In that context, do we analyze this as a licensing question, or, given that the Catholic hospital can’t even enter the business without this contract, do you still say that this was the provision of a contractual service? To similar effect, Justice Alito asked Jeff Fisher:  “Do you think it’s fair to say this is simply a government contracting case when Catholic Social Services and other agencies cannot participate in this activity at all, an activity in which some of them at least have been participating long before it was taken over by the state, unless they are approved by the City?  Even if it’s partially a contracting case, is it not also partially a licensing case?”There are two major problems with this suggested pre-1921 baseline for assessing the impact of the City’s current contracting conditions on CSS’s freedom of religious exercise.  First, it’s difficult to identify just what CSS did before 1921 that’s limited by the City’s contractual conditions today.  Back in 1920, after all–or in 1882–CSS might have been relatively free, as a matter of state law, to make efforts to facilitate voluntary transfers of children from one family to another; but it certainly did not have the power to convey (or deny) a legal right upon others (today’s foster parents) to obtain legal custody or guardianship over children, let alone over children who are wards of the City.  (As Neal Katyal put the point:  “Private entities have never done this because whatever these entities [such as CSS] did before, … they never selected who cares for kids in City custody, applying state criteria.”)  And to the extent CSS’s complaint is that it is no longer able to facilitate voluntary transfers of neglected children without state regulation, that’s a function of the legal developments in the late Nineteenth and early Twentieth Centuries–i.e., of the state’s increasing control of the foster care system generally, and the rules for foster family certification, in particular–not of the nondiscrimination condition in the City’s FCA contracts in 2020.Second, and more fundamentally, the state’s “monopolization” of a function that once was performed primarily by private parties–and the state’s exclusion of such private parties from that function except pursuant to conditional employment or contractual relationships to assist the state–does not create a constitutionally cognizable burden on the religious exercise of private parties simply because they once independently performed that function for religious reasons.  As the private respondents write in their brief:  “The Court has never allowed private parties to dictate government policies because activity within the same sphere was once conducted by private parties. …  A variety of core governmental services—including the military, police, and libraries—were once privately operated.  But when governmental agencies undertook to provide them as public services, they did not need to run the programs in accordance with the religious (or any other) beliefs of organizations that previously provided those kinds of services.”The private respondents’ counsel, Jeff Fisher, was right to invoke Lyng v. Northwest Indian Cemetery Protective Ass’n (1988) at oral argument to demonstrate why that must be so.  Lyng is the leading (pre-Smith) case for the proposition that a government does not impose a constitutionally cognizable burden on religion when operation of its internal affairs has a detrimental impact on private parties’ ability to practice their religion.In Lyng, the U.S. Forest Service announced a plan to build a road through, and to allow harvesting timber on, portions of the Six Rivers National Forest in northwestern California, an area sacred to several Indian tribes.  The area was the tribes’ most holy site; for generations they had continuously used it for religious practices forming the very core of their traditional religious belief system.  The Court accepted representations that the USFS’s plans, if implemented, would interfere significantly with tribal members’ ability to pursue spiritual fulfillment, “that the logging and roadbuilding projects at issue … could have devastating effects on traditional Indian religious practices,” and that “the threat to the efficacy of at least some religious practices is extremely grave.”  Even so, the Court ruled, the land belonged to the federal government, and “the Constitution simply does not provide a principle that could justify upholding respondents’ legal claims” against the government’s “internal operations” of its own property.  “Whatever [constitutional] rights the Indians may have to the use of the area,” the Court wrote, “those rights do not divest the Government of its right to use what is, after all, its land.”  (Emphasis in original.)Of course, what the Court did not even mention in Lyng was that once upon a time the government did not own that land–it wasn’t always the “Six Rivers National Forest.”  Therefore, for many centuries the tribes were unrestrained by law or government coercion in respect to their ritual use of the land.  Then, one day (I assume sometime in the Nineteenth Century), the federal government assigned itself, and began to enforce, a legal property right to that land … and eventually (in the 1980s) chose to do something with its property that threatened to virtually extinguish the tribes’ religion.  The fact that the tribes were once free to act as they wished, unencumbered by any state laws, and that the government only later established a “monopoly” right to control the land, did not affect the Lyng Court’s decision that there was no cognizable Free Exercise burden:  the circumstances of the Nineteenth Century did not establish a constitutional baseline.  Perhaps you’re somewhat sympathetic, as I am, to Justice Brennan’s dissent in Lyng, arguing that the Free Exercise Clause ought to impose at least some restriction on the government’s use of its own property in a way that such such a destructive impact on a community’s ability to exercise core facets of its faith tradition.  Even so, however, that surely wouldn’t mean that there’d be a constitutional right for the government’s own religious employees and contractors to disregard the way in which they’ve been instructed to do the government’s work.  As the private respondents in Fulton write in their brief, “[t]here is no reason why it would have made any difference in Lyng if the government had hired members from the Yurok tribe to pave the road.  If the tribe members had refused to build the road through the national forest, the Free Exercise Clause would not have required the government to keep those workers in its employ or reroute the road.”So, too, in Fulton itself:  The fact that a predecessor of CSS might once, long ago, have been free to facilitate the protection of neglected children without extensive state regulation does not mean that the government’s rules for its contractors’ operation of the government’s own foster-care system today, more than a century later, impose a cognizable burden on those contractors’ exercise of religion.

  • The Reagan Regime Lives On
    by Gerard N. Magliocca on November 5, 2020 at 13:27

    While the result of the election is unclear, one thing is clear: We are still in the Reagan Regime. The Reagan Revolution has nine lives. Some conservatives thought that Bush 41 was the killer. Others blamed the compassionate conservatism of Bush 43. I thought initially that the 2008 election was the end. Or the run-up to 2016. Or maybe this year. No dice. The GOP will (absent some incredible results in Georgia) control the Senate in the next Congress and probably in the one other that. And there’s the newly beefed-up Roberts Court. To be fair to Jack, his terrific new book does not say that 2020 would be the transition point. We might, though, need to rethink when that transition will come. President Trump’s increased strength in Florida and Texas suggests the possibility that the Reagan coalition can be reconstituted organically. Perhaps the pandemic is the only thing that prevented the President’s reelection.Put another way, Larry Hogan was not far off the mark in voting for Ronald Reagan, if you take that as a prediction of the actual winner.

  • The Margin of Litigation, the Margin of Error, and the Margin of Organizing
    by Joseph Fishkin on November 4, 2020 at 21:07

    A few thoughts on President Biden’s likely margin — too small to please Democrats, for sure, but I think, large enough to fall outside the “margin of litigation,” which is very good news for the country — here in a blog post at TPM Cafe.  

  • Supreme Court Tests LBGTQ Rights Against Free Exercise Claim
    by Steven D. Schwinn on November 4, 2020 at 15:04

    Steven D. Schwinn, University of Illinois Chicago Law School The Supreme Court will hear oral arguments today in Fulton v. City of Philadelphia, the case testing whether the city’s enforcement of a clause in its foster-care contracts that prohibits discrimination…

  • Government Seeks Stay of Census Order at Supreme Court
    by Steven D. Schwinn on October 8, 2020 at 16:07

    Steven D. Schwinn, University of Illinois Chicago Law School The Trump Administration yesterday filed a motion at the Supreme Court to stay, pending appeal, a district court’s order directing the government to continue census operations until October 31. The filing…

  • Second Circuit Rebuffs Trump’s Case Against NY Grand Jury Subpoena
    by Steven D. Schwinn on October 7, 2020 at 14:20

    Steven D. Schwinn, University of Illinois Chicago Law School The Second Circuit today flatly rejected President Trump’s case challenging the NY grand jury subpoena for his financial records. The ruling follows a summer Supreme Court decision saying that the grand…

  • Obergefell as Precedent: First Monday in October
    by Ruthann Robson on October 5, 2020 at 14:26

    Professor Ruthann Robson, City University of New York (CUNY) School of Law On the first Monday in October, the United States Supreme Court begins its Term, this time with only eight of the usual nine Justices given Justice Ginsburg’s death…

  • Supreme Court to Hear First Amendment Challenge to Political Balancing Requirements for State Courts
    by Steven D. Schwinn on October 5, 2020 at 00:08

    Steven D. Schwinn, University of Illinois Chicago Law School The Supreme Court will hear oral arguments tomorrow, the opening day of October Term 2020, in Carney v. Adams. The case tests whether Delaware’s "political balancing" requirements for its courts violate…

  • Check it Out: The Voter-Fraud Myth and How it Impacts the Right to Vote
    by Steven D. Schwinn on October 1, 2020 at 13:15

    Check out this in-depth story on the history of claims of voter fraud, and how those claims affect the right to vote. From the NYT.

  • Seventh Circuit Rebuffs Appeal by Republicans, State Legislation in Wisconsin Voting Case
    by Steven D. Schwinn on September 30, 2020 at 18:26

    Steven D. Schwinn, University of Illinois Chicago Law School The Seventh Circuit flatly rejected an appeal by the Wisconsin legislature and the state and national Republican Party of a lower court’s order that the state extend voting deadlines in light…

  • How Could a Justice Amy Coney Barrett Affect the Affordable Care Act?
    by Steven D. Schwinn on September 30, 2020 at 18:07

    Looking for a plain-English explainer on how a Justice Amy Coney Barrett could affect the Affordable Care Act, or Obamacare, in a case scheduled for oral argument on November 10? Here you go:

  • 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 podcasts 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.

  • Political parties and the Constitution
    by programs@constitutioncenter.org on July 14, 2016 at 20:31

    James Ceaser of the University of Virginia and Luis Fuentes-Rohwer of Indiana University discuss the role of parties in the American constitutional system. This episode is the first part of a three-part series on political parties and the Constitution. 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 on iTunes. While you’re in the iTunes Store, leave us a rating and review; it helps other people discover what we do. Please also subscribe to Live at America’s Town Hall, featuring conversations and debates presented at the Center, across from Independence Hall in beautiful Philadelphia. We the People is a member of Slate’s Panoply network. Check out all of our sibling podcasts 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.

  • Northwest Ordinance
    by Constitution.com ???????? on July 12, 2016 at 23:57

    The following article, Northwest Ordinance, was first published on The Constitution • Constitution.com. An Ordinance for the government of the Territory of the United States northwest of the River Ohio. Continue reading: Northwest Ordinance …

  • A ‘deep dive’ on the Supreme Court
    by programs@constitutioncenter.org on July 7, 2016 at 20:38

    Jeffrey Rosen, president and CEO of the National Constitution Center, is joined by leading Supreme Court watchers to review the recent term and look ahead to the future. The participants are Neal Katyal of Georgetown University and Hogan Lovells; Judge Nancy Gertner of Harvard University; Nina Totenberg of NPR; Geoffrey Stone of the University of Chicago; and Lawrence Lessig of Harvard University. 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 on iTunes. While you’re in the iTunes Store, leave us a rating and review; it helps other people discover what we do. Please also subscribe to Live at America’s Town Hall, featuring conversations and debates presented at the Center, across from Independence Hall in beautiful Philadelphia. We the People is a member of Slate’s Panoply network. Check out all of our sibling podcasts 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 edited by David Stotz and produced by Nicandro Iannacci. Research was provided by Josh Waimberg, Lana Ulrich, and Tom Donnelly. The host of We the People is Jeffrey Rosen.

  • Declaration of the Causes and Necessity of Taking up Arms
    by Constitution.com ???????? on July 4, 2016 at 17:24

    The following article, Declaration of the Causes and Necessity of Taking up Arms, was first published on The Constitution • Constitution.com. The Continental Congress issued this declaration on July 6, 1775, “setting forth the causes and necessity of their taking up arms.” Continue reading: Declaration of the Causes and Necessity of Taking up Arms …

  • Gettysburg Address
    by Constitution.com ???????? on July 4, 2016 at 16:27

    The following article, Gettysburg Address, was first published on The Constitution • Constitution.com. This short speech was given by President Abraham Lincoln on November 19, 1863 at the Dedication of the National Military Cemetery in Gettysburg, Pennsylvania, Continue reading: Gettysburg Address …

  • Olive Branch Petition
    by Constitution.com ???????? on July 4, 2016 at 15:40

    The following article, Olive Branch Petition, was first published on The Constitution • Constitution.com. The Continental Congress approved this “Olive Branch” petition to the King on July 5, 1775. Continue reading: Olive Branch Petition …

  • Making sense of an unpredictable year at the Supreme Court
    by programs@constitutioncenter.org on June 30, 2016 at 20:18

    Carrie Severino of the Judicial Crisis Network and Michael Dorf of Cornell Law School explore the biggest cases and trends at the Supreme Court this year. 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 on iTunes. While you’re in the iTunes Store, leave us a rating and review; it helps other people discover what we do. Please also subscribe to Live at America’s Town Hall, featuring conversations and debates presented at the Center, across from Independence Hall in beautiful Philadelphia. We the People is a member of Slate’s Panoply network. Check out all of our sibling podcasts 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 David Stotz and produced by Nicandro Iannacci. Research was provided by Josh Waimberg and Danieli Evans. The host of We the People is Jeffrey Rosen.

  • Journals of the Continental Congress – Articles of War, June 30, 1775
    by Constitution.com ???????? on June 30, 2016 at 05:00

    The following article, Journals of the Continental Congress – Articles of War, June 30, 1775, was first published on The Constitution • Constitution.com. The consideration of the articles of war being resumed, Congress agreed to the same Continue reading: Journals of the Continental Congress – Articles of War, June 30, 1775 …

  • The Orlando shooting and the Constitution
    by programs@constitutioncenter.org on June 23, 2016 at 10:00

    Adam Winkler of the University of California, Los Angeles and Ilya Shapiro of the Cato Institute explore the constitutional debates over gun control and immigration policy. 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 on iTunes. While you’re in the iTunes Store, leave us a rating and review; it helps other people discover what we do. Please also subscribe to Live at America’s Town Hall, featuring conversations and debates presented at the Center, across from Independence Hall in beautiful Philadelphia. We the People is a member of Slate’s Panoply network. Check out all of our sibling 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 Josh Waimberg and Danieli Evans. The host of We the People is Jeffrey Rosen.