We the People

This year marks the 50th anniversary of the passage of the 26th Amendment, which lowered the voting age to 18. This week’s episode tells the fascinating story of the amendment—sparked by two wars and the idea of “old enough to fit, old enough to vote,” principally designed by two senators, and advocated for by countless young people, students, and civil rights activists. Host Jeffrey Rosen was joined by Jason “Jay” Berman, a longtime advisor to one of the principal architects of the 26th Amendment, U.S. Senator Birch Bayh, and Yael Bromberg, author of the article “Youth Voting Rights and the Unfulfilled Promise of the Twenty-Sixth Amendment.” Special thanks to the 26th Amendment Collection, Modern Political Papers, Indiana University Libraries as well as the Youth Franchise Coalition and Project Vote 18 for the Birch Bayh audio at the top of the episode. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution. Questions or comments about the show? Email us at [email protected].

This week’s episode profiles Mercy Otis Warren—a trailblazing woman who was one of the leading thinkers of America’s Revolutionary and Founding period. A poet, playwright, and pamphleteer—Warren’s ideas influenced John, Abigail, and Samuel Adams as well as Alexander Hamilton and others, and even helped shape the Constitution and the Bill of Rights. Host Jeffrey Rosen was joined by two biographers of Warren, Nancy Rubin Stuart, author of The Muse of the Revolution: The Secret Pen of Mercy Otis Warren and the Founding of a Nation, and Rosemarie Zagarri, author of A Woman's Dilemma: Mercy Otis Warren and the American Revolution. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution. Questions or comments about the show? Email us at [email protected].

On August 3, the Biden Administration issued an order from the Centers for Disease Control and Prevention creating a second “eviction moratorium” that extended the pause on eviction proceedings in state courts during the pandemic—sparking debate over whether such an action was legal and constitutional. Joining Jeffrey Rosen to debate those questions this week are Ilya Shapiro, vice president of the Cato Institute who’s written on this issue for Cato at Liberty, and Peter M. Shane, professor at the Ohio State University’s Moritz College of Law and author of a Washington Monthly piece about the moratorium. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution. Questions or comments about the podcast? Email us at [email protected].

As students return to school, hundreds of colleges and universities are requiring those returning to campus to get coronavirus vaccines. Recently, a federal appeals court declined to grant an injunction against Indiana University’s vaccine mandate after it was challenged in a lawsuit by students who say it violates their constitutional rights. On this week’s episode, we discuss the Indiana case as well as the constitutionality of vaccination mandates issued or being considered by different institutions including schools; discuss whether states or the federal government may also have the power to issue vaccine mandates; and explain how Supreme Court cases, including those from over a century ago, might impact this question. Wendy K. Mariner, professor at the Boston University Schools of Public Health, Law, and Medicine, and Josh Blackman, constitutional law professor at the South Texas College of Law Houston, join host Jeffrey Rosen. Additional resources and transcript available at constitutioncenter.org/constitution. Questions or comments about the show? Email us at [email protected].

President Biden recently issued the Executive Order on Competition which aims to break up corporate power across the economy—proposing antitrust initiatives at more than a dozen federal agencies including the Federal Trade Commission (FTC). This week’s episode explores the executive order, the history, ideals, and legal principles behind it, and its potential impact. Host Jeffrey Rosen was joined by William Kovacic, former chair of the FTC and professor at GW Law, and Barry Lynn, Executive Director of the Open Markets Institute. Additional resources and transcript available in the Media Library at constitutioncenter.org/constitution. Questions or comments about the show? Email us at [email protected].

The landmark 1964 Supreme Court decision New York Times Company v. Sullivan shaped libel and defamation law and established constitutional principles that still govern the scope of press protections in America today. The “actual malice” standard established in the decision requires a public official suing for defamation to prove that the newspaper published a false statement “with knowledge that it was false or with reckless disregard of whether it was false or not.” This made it harder for news publications to be sued for libel; yet it also made it more difficult for those defamed to seek redress. Recently, Supreme Court Justices Gorsuch and Thomas in separate opinions have each called for Sullivan to be revisited. Host Jeffrey Rosen moderated a debate over the importance of the Sullivan case and whether or not it should be reconsidered—featuring experts RonNell Andersen Jones, professor of law at the University of Utah and an Affiliated Fellow at Yale Law School’s Information Society Project, and David A. Logan, professor of law and former dean at Roger Williams University and author of an article cited by Justice Gorsuch in his opinion questioning Sullivan. In this episode you’ll also hear audio from the Supreme Court oral argument of New York Times v. Sullivan, courtesy of Oyez. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution. Questions or comments about the show? Email us at [email protected].

Benjamin Franklin is well known as a Founding Father and an innovative inventor, scientist, and diplomat. But did you know he had a major and often unsung role at the Constitutional Convention? Historians H.W. Brands, author of The First American: The Life and Times of Benjamin Franklin, and Ed Larson, author of Franklin & Washington: The Founding Partnership, join host Jeffrey Rosen on this week’s episode. They illuminate Franklin’s involvement in drafting and debating the Constitution during the summer of 1787 in Philadelphia—as host of the Constitutional Convention and one of the Convention’s most-respected delegates—as well as his vision for America’s future. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

Last week, the Supreme Court released its opinion in Brnovich v. Democratic National Committee—upholding two Arizona voting rules by deciding that they did not violate the Voting Rights Act or the Constitution and were not enacted with a racially discriminatory purpose. On this week’s episode, scholars debate whether that ruling was correct and how it might impact the future of voting rights and how elections are conducted in America. Host Jeffrey Rosen was joined by Rick Hasen, professor of law at the University of California Irvine, and Ilya Shapiro, a vice president at the Cato Institute. For more insight on this case from our guests, check out Rick Hasen’s recent pieces for Slate (https://slate.com/news-and-politics/2021/07/supreme-court-sam-alito-brnovich-angry.html) and The New York Times (https://www.nytimes.com/2021/07/01/opinion/supreme-court-rulings-arizona-california.html) and Ilya Shapiro’s recent pieces for The Washington Examiner (https://www.washingtonexaminer.com/politics/the-voter-suppression-lie) and SCOTUSblog (https://www.scotusblog.com/2021/02/supreme-court-needs-to-set-clear-standards-for-vote-denial-claims). Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at [email protected].

As Americans look forward to celebrating Independence Day this holiday weekend, this week’s episode dives into the Declaration of Independence. We trace where its words and its ideals came from and how it went on to influence state constitutions, the U.S. Constitution, and other key American texts—including President Abraham Lincoln’s Gettysburg Address and Martin Luther King Jr’s “I Have a Dream” speech. Host Jeffrey Rosen was joined by Akhil Reed Amar of Yale Law School, author of The Words That Made Us: America’s Constitutional Conversation 1760-1840, and Steven G. Calabresi of Northwestern Pritzker School of Law. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

The Supreme Court recently released decisions from some of the most highly-anticipated cases of this term. Jess Bravin, who covers the Supreme Court for The Wall Street Journal, and Marcia Coyle, chief Washington correspondent for The National Law Journal and contributor to the National Constitution Center’s blog Constitution Daily, join host Jeffrey Rosen to recap those decisions and highlight the role, approach and legal philosophy of each individual justice in this blockbuster term. Marcia, Jess, and Jeff discuss cases including: Fulton v. City of Philadelphia in which the Court held that the refusal of Philadelphia to contract with Catholic Social Services (CSS) for the provision of foster care services unless CSS agrees to certify same-sex couples as foster parents violates the free exercise clause of the First Amendment. Mahanoy Area School District in which the Court sided with a student whose initials are B.L., ruling that the school district’s decision to suspend B.L. from the cheerleading team for posting to social media vulgar language and gestures critical of the school violates the First Amendment. California v. Texas in which the Court held that the plaintiffs in the case lack standing to challenge the Affordable Care Act’s minimum essential coverage provision—essentially protecting the ACA from its latest challenge. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments available at [email protected].

On June 19, 1865, Union soldiers, led by Major General Gordon Granger, arrived in Galveston, Texas, with news that the Civil War had ended and that the enslaved were now free. President Lincoln’s Emancipation Proclamation had been issued over two years earlier, and the South had surrendered in April 1865, ending the Civil War. So why did it take so long for Texans to hear the news of their freedom? Why do we celebrate Juneteenth as Emancipation Day? And how did emancipation finally become a reality under the Constitution and throughout the nation? We answer those questions and more on this week’s episode featuring Martha Jones, author of 'Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All,' and Lucas Morel, author of 'Lincoln and the American Founding.' Jones and Morel trace the story of the fight for freedom and equality in America from the Declaration of Independence through the founding of the country and the Constitution; the Civil War and the Emancipation Proclamation; the ratification of the 13th Amendment; and beyond. They also highlight some of the fascinating figures and movements that shaped Black American politics and history. Jeffrey Rosen hosts. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

As the Supreme Court approaches the home stretch of the 2020-2021 term, it’s released some opinions with unanimous decisions and others with split votes composed of unusual alignments of justices. Supreme Court experts Kate Shaw, cohost of the podcast Strict Scrutiny and professor at Cardozo Law, and Jonathan Adler, contributing editor of National Review and professor at Case Western Reserve University School of Law, join host Jeffrey Rosen to recap those decisions and detail why they’re important, as well as what to look out for in the rest of the outstanding cases still left in this term, and new cases in the next. Some terms that will be helpful to know this week: Textualism: a method of interpreting laws and/or the Constitution whereby the plain text is used to determine the meaning, and/or a set of techniques used by judges and justices to determine the application of a statute through close consideration of its text. Stare decisis: Latin for “to stand by things decided.” The doctrine of adhering to precedent i.e. cases previously decided. Questions or comments about the show? Email us at [email protected].

Last week, U.S. Supreme Court Associate Justice Stephen G. Breyer joined National Constitution Center President and CEO Jeffrey Rosen for a live online program to discuss the Constitution, civility, the Court, and more. In a wide-ranging conversation, the justice discusses how he goes about making decisions, shares some stories and life lessons from his time on the bench, and shares some of his favorite books and authors. He also explains why civic education is so important today, why people need to reach across the political divides more than ever, and why he's optimistic about the future of America. Finally, he answers questions from the audience and describes how he’s been spending his time during the pandemic (including Zooming with his law clerks and meditating). This conversation was one of our constitutional classes broadcast live to learners of all ages. All of the classes from the past school year were recorded and can be watched for free at https://constitutioncenter.org/interactive-constitution/media-library. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at [email protected].

The Supreme Court agreed to hear a challenge to a Mississippi law banning most abortions after 15 weeks (with narrow exceptions for medical emergencies or “severe fetal abnormality,” but not for instances of rape or incest). The case could lead the Supreme Court to once again question its landmark decision in Roe v. Wade (and later cases like Planned Parenthood v. Casey) which held that there was a constitutional right to seek an abortion under the 14th Amendment and that the government could not place an undue burden on the right prior to the “viability” of the fetus, or the ability of an unborn child to survive outside the womb. This week’s episode focuses on two big questions: Does the Constitution indeed protect the right to choose abortion—and if so, when? And in the new abortion challenge, Dobbs v. Jackson’s Women’s Health Organization, will the court uphold Roe v. Wade or narrow the decision in some way, revising the viability standard? Our guests unpack these questions and more, explaining the arguments on all sides as well as relevant legal terms—including “substantive due process,” “natural law,” and “stare decisis.” Host Jeffrey Rosen was joined by Leah Litman, assistant professor at Michigan Law and co-host of the podcast Strict Scrutiny, and Teresa Stanton Collett, professor and director of the Prolife Center at University of St. Thomas School of Law. Questions or comments about the podcast? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library

In the wake of the 2020 election, a host of new laws that deal with voting have been proposed across the country by both states and the federal government. Election law experts Rick Hasen, professor at UCI Law and author of Election Meltdown: Dirty Tricks, Distrust, and the Threat to American Democracy, and Derek Muller, election law professor at Iowa Law, join host Jeffrey Rosen to discuss whether or not the proposed bills are constitutional; explain how the election system is structured under our Constitution and state, federal, and local laws; and more. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

This week’s episode previews New York State Rifle and Pistol Association Inc. v. Corlett, which could become a major Second Amendment and gun rights case. This lawsuit was brought by two New York state residents who were denied licenses to carry firearms outside of the home, AKA “concealed carry” permits, because they had failed to show "proper cause" to carry a firearm in public for the purpose of self-defense and did not demonstrate a special need for self-defense that distinguished them from the general public. Host Jeffrey Rosen was joined by Adam Winkler, author of Gunfight: The Battle Over the Right to Bear Arms in America, and Clark Neily, who was co-counsel in the major gun rights case District of Columbia v. Heller, to explore the case, debate whether New York’s controversial concealed carry law is constitutional, examine the surprising history of similar laws, and more. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

The Facebook Oversight Board—a recently-developed court of sorts that independently reviews Facebook’s decisions and policies—issued a major ruling this week, upholding the company’s initial decision to ban President Trump indefinitely, but calling on the company to come to a final decision on its suspension of Trump and similar cases with greater detail. The board also requested that Facebook clarify its policies on political leaders, do some additional fact-finding, and report back with more on its decision and rationale in six months—when the board will reconsider the ban. Host Jeffrey Rosen considered the impact of the decision for the future of digital speech with two experts who have done path-breaking work on the Facebook Oversight Board: Kate Klonick, assistant professor of law at St. John’s Law School who spent a year embedded with the Oversight Board as it was being developed, and Nate Persily, Professor of Law at Stanford Law School and co-director of the Stanford Program on Democracy and the Internet. Questions or comments about the show? Email us at [email protected].

After a high school student with initials B.L. posted a snap on the social media app Snapchat complaining about sports and school, she was suspended from the cheerleading team. She sued the school for violating her First Amendment rights and appealed up to the U.S. Supreme Court; the court heard arguments in the case, Mahanoy Area School District v. B.L., this week, which could become the court’s first major ruling on student speech in decades. On this week’s episode, we recap the oral argument in the case, as our guests explain the arguments on both sides. Host Jeffrey Rosen was joined by Will Creeley, Legal Director at Foundation for Individual Rights (FIRE) who authored an amicus brief on behalf of B.L., and Francisco Negrón, Chief Legal Officer at the National School Boards Association who joined a brief on behalf of the school district. They discuss how the court might apply the leading precedent, Tinker v. Des Moines (1969)—in which the court famously wrote that students “do not shed their constitutional rights to freedom of speech or expression at the schoolhouse gate at the schoolhouse gate,” but that schools could punish student speech if it substantially disrupts the educational process—to this case, and whether and to what extent schools can regulate student speech online. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

Next week, the Supreme Court will hear argument in a key consolidated case about the First Amendment and donor disclosure laws. Americans for Prosperity Foundation v. Rodriquez asks whether a policy of the California attorney general’s office that requires charities to disclose the names and addresses of their major donors violates the First Amendment. Cindy Lott, Associate Professor of Professional Practice at Columbia University and Academic Program Director for Nonprofit Management Program at the School of Professional Studies, and Brian Hauss, a staff attorney with the ACLU Speech, Privacy, and Technology Project, discuss this case and its potential implications for nonprofit organizations, campaign finance, free speech, and more.

Recently, the Supreme Court seemingly put an end to the legal battle over whether President Trump violated the First Amendment by blocking people on Twitter by instructing the lower court to declare the case moot. Justice Thomas authored a separate concurring opinion that expanded on the language of the Court’s decision to discuss the power of social media platforms over free speech. This week, we discuss that opinion and the potential broader impacts of this case—now known as Biden v. Knight First Amendment Institute due to the change in administrations—on the future of the First Amendment. Katie Fallow, senior staff attorney at the Knight First Amendment Institute who led litigation of this case since its inception, and Eugene Volokh, professor of law at UCLA Law, joined host Jeffrey Rosen. Questions or comments about the podcast? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

This week we dive into the fascinating history of global constitutionalism and declarations of independence. Linda Colley of Princeton University, author of the new book The Gun, The Ship, and the Pen: Warfare, Constitutions, and the Making of the Modern World, and David Armitage of Harvard University author of The Declaration of Independence: A Global History, join host Jeffrey Rosen. They explain how constitutions from around the world are intertwined with warfare, globalism and travel, writing, media and communication technologies, and more; and highlight stories of constitution-making by figures from Catherine the Great to George Washington and beyond. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

In the midst of March Madness, the Supreme Court recently heard oral argument in NCAA v. Alston. The case is an antitrust challenge to the NCAA’s rules on compensation for athletes, brought by college basketball and football players including Shawne Alston, a former West Virginia University running back who argues that college athletes are being exploited. The NCAA argues that maintaining the amateur status of college athletes actually fosters consumer choice between amateur and professional sports. Thomas Nachbar, professor of law at the University of Virginia School of Law who authored a brief in support of the NCAA, and Sandeep Vaheesan, legal director at the Open Markets Institute who co-authored a brief on behalf of Shawne Alston, join host Jeffrey Rosen to explore both sides of the case. They also explore the case's potential implication for the future of antitrust across industries, detail past Supreme Court decisions involving the NCAA, and more. Questions or comments about the show? Email us at [email protected]. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library.

On March 23, the Supreme Court heard oral arguments in Cedar Point Nursery v. Hassid. Broadly, the case pits the rights of unions to communicate with workers who work and largely live on site versus the rights of business owners to keep people off of their private property. More specifically, the case asks whether California’s Agricultural Labor Relations Act, which allows union organizers to be granted temporary access to speak to agricultural employees on worksites—which are largely private property—amounts to a taking of property without just compensation that violated the Fifth Amendment. Hugh Baran and Robert McNamara joined Jeffrey Rosen to explain both sides of the case. McNamara, a senior staff attorney at Institute for Justice, filed an amicus brief in support of Cedar Point Nursery while Hugh Baran, staff attorney and Skadden Fellow at National Employment Law project, filed an amicus brief in support of the chair of the Agricultural Labor Relations Board, Victoria Hassid. A term that will be helpful to know for this week: “Taking”: The Takings Clause of the Fifth Amendment to the United States Constitution says: “Nor shall private property be taken for public use, without just compensation.” A taking is when the government seizes private property for public use. Typically, a “just compensation” is determined by an appraisal of the property’s fair market value. Courts have broadly interpreted the Fifth Amendment to allow the government to seize property if doing so will increase the general public welfare. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at [email protected].

In honor of Women’s History Month, this week we highlight women constitutional visionaries from landmark eras in our nation’s history—sharing the legendary contributions of women to the founding; the fight for abolition, the right to vote, and the 19th Amendment; the civil rights and equal rights movements; and more. Martha Jones, author of Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All, and Lisa Tetrault, author of The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898, join host Jeffrey Rosen. Additional resources and transcript available at [email protected]. Questions or comments? Email us at [email protected].

As the world reflects on the anniversaries of COVID-19 lockdowns this week, this episode recaps the variety of constitutional issues sparked by the pandemic. Joshua Matz—a lawyer and partner at Kaplan Hecker and Fink LLP who successfully defended a Kentucky coronavirus-related public health order before the U.S. Supreme Court—and Adam White, a professor at George Mason Law and scholar at the American Enterprise Institute who has studied COVID-19-related constitutional issues—join host Jeffrey Rosen. They explore how the pandemic has fueled debates over governmental power to handle public health crises while balancing individual rights and liberties; the First Amendment rights of religious institutions in the face of shutdowns and other orders; state versus federal power; how courts ruled on voting rights issues during the 2020 election in the midst of the pandemic; how COVID-19 has affected inmates, immigrants, detainees and the criminal justice system, and more. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the podcast? Email us at [email protected].

The Supreme Court recently heard oral argument in Lange v. California. The case asks whether a police officer violated the Fourth Amendment when he entered the garage of a person suspected of a misdemeanor crime without a warrant while in “hot pursuit” of him. Professor Jeffrey Fisher of Stanford University, who argued the case on behalf of Arthur Lange, and professor Donald Dripps of the University of San Diego Law School, a Fourth Amendment and criminal procedure expert, join host Jeffrey Rosen to discuss the case and its potential implications for policing, privacy, the Fourth Amendment, and more. Some terms that will be helpful to know for this week (definitions adapted from Legal Information Institute): -Warrantless entry: when a police officer enters a private residence without a warrant issued by a judge or magistrate that would allow the police officer to search a specified place for evidence even without the occupant’s consent -Hot pursuit: exception to the general rule that police officers need a warrant before they can enter a home to make an arrest. Current case law states that if a felony has just occurred and an officer has chased a suspect to a private house, the officer can forcefully enter the house in order to prevent the suspect from escaping or hiding or destroying evidence. -Exigent circumstances: exceptions to the general requirement of a warrant under the Fourth Amendment searches and seizures Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

On March 2, the Supreme Court will hear oral arguments in Brnovich v. Democratic National Committee. The case centers on two of Arizona’s election rules: 1. Arizona does not count provisional ballots cast in person on Election Day outside of the voter’s designated precinct and 2. its ballot-collection law permits only certain persons (family and household members, caregivers, mail carriers, and elections officials) to handle another person’s completed early ballot. The DNC challenged the rules, arguing that both discriminate against racial minorities in Arizona. On appeal, the Supreme Court will consider whether both policies violate Section 2 of the Voting Rights Act of 1965—which prohibits nationally any election laws or policies that “results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color”—and whether the second violates the 15th Amendment—which states that “the right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” Chris Kieser of Pacific Legal Foundation, who wrote a brief in support of Arizona Attorney General Mark Brnovich, and Sean Morales-Doyle of the Brennan Center, who wrote a brief in support of the DNC, explore the case and its potential implications in conversation with Jeffrey Rosen. Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

In commemoration of Black History Month, this week we’re sharing the courageous stories and legendary lives of African American constitutional visionaries throughout history—including well-known figures like Frederick Douglass, Harriet Tubman, Sojourner Truth, Ida B. Wells, W.E.B. DuBois, Martin Luther King Jr., and Malcolm X, as well as some lesser-known but groundbreaking figures like Monroe Trotter and Pauli Murray. We highlight their fights to bring about constitutional change, from abolition and suffrage to the civil rights and voting rights movements and beyond. Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, and professor Theodore M. Shaw of UNC Law, former director-counsel of the NAACP, join host Jeffrey Rosen. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

Did President Trump’s January 6 speech prior to the attack on the Capitol constitute the crime of incitement? Is it necessary to demonstrate that it did in order for the Senate to find him guilty of incitement as a high crime and misdemeanor under the Impeachment Clause and convict him? What are the relevant legal and constitutional standards? Catherine Ross, George Washington University Law School professor and author of the forthcoming book A Right to Lie? Presidents, Other Liars, and the First Amendment, and Josh Blackman, professor of law at South Texas College of Law in Houston whose work has been cited by President Trump’s defense team during this second impeachment trial, join host Jeffrey Rosen to debate those questions. Some terms that will be helpful to know this week: “The Brandenburg test”: In Brandenburg v. Ohio (1969), the Supreme Court established that speech could be punished in a criminal trial only when the speech is: “directed to inciting or producing imminent lawless action” AND “likely to incite or produce such action” Impeachment: per Article II, Section 4 of the Constitution, “The President, Vice President and all civil Officers of the United States, shall be removed from Office on Impeachment for, and Conviction of, Treason, Bribery, or other high Crimes and Misdemeanors.” Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

What are executive orders, and how has the Biden administration used them thus far? Presidential power experts Cristina Rodriguez, professor at Yale Law School and author of The President and Immigration Law, and Michael McConnell, professor at Stanford Law School and author of The President Who Would Not Be King, join host Jeffrey Rosen to answer those questions and more. They recap what they think are the most notable executive actions President Biden has taken in his first weeks in office, what their implications might be, and how they are being challenged, before reflecting on presidential power more broadly. To see the full list of executive actions discussed in this episode, visit the National Archives Federal Register page “2021 Joe Biden Executive Orders” Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected]

A mob stormed the U.S. Capitol on January 6, leading to a ricochet of effects including the impeachment of President Trump. On this episode, experts Larry Kramer, president of the William and Flora Hewlett Foundation, and Colleen Sheehan, Director of Graduate Studies at the Arizona State School of Civic and Economic Thought and Leadership, explore the history of mobs past and present, online and in-person. They discuss how “good” versus “bad” mobs played a role at the Founding, and how concerns about mobs influenced the political and constitutional thought of Founders including James Madison. They also trace how different types of mobs evolved over time and were seen as illegitimate especially around the Civil War, as well as what has fueled mobs—particularly online mobs—today, including disinformation and social media. They conclude with some thoughts on potential reforms, including the need for more civic education and protections for free speech. Jeffrey Rosen hosts. Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments about the show? Email us at [email protected].

Judge J. Michael Luttig, formerly of the Fourth Circuit Court of Appeals, and Professor Keith Whittington of Princeton join host Jeffrey Rosen to consider how to interpret the constitutional text and historical precedent surrounding the question of whether the senate can hold President Trump’s impeachment trial now that he’s left office. Judge Luttig explains why he thinks that the president cannot be tried and convicted by the senate after he has already left office, and why only the Supreme Court can answer the question of whether Congress can hold an impeachment trial for a former president. Professor Whittington details his view that a former president can be tried and convicted, and that it’s a purely political question up to the senate to ultimately decide. Resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments? Email us at [email protected].

The House of Representatives voted to impeach President Trump for a second time this week, with a vote of 232 in favor, 197 against, and 4 not voting. Prior to the vote, host Jeffrey Rosen sat down with two experts on the Constitution and presidential power—Cristina Rodriguez of Yale Law School and Michael McConnell of Stanford Law School. They shared their thoughts on the article of impeachment passed by the House; the charge against President Trump of incitement of insurrection in the wake of the mob invasion of the U.S. Capitol; the meaning of high crimes and misdemeanors under the Impeachment Clause; if Section 3 of the 14th Amendment should be invoked to disqualify President Trump from holding office again; how the current media and information landscape may have contributed to polarization and events culminating in the riot; what reforms might help; and more. Professor McConnell is the author of the new book The President Who Would Not be King, and professor Rodriguez is the co-author, with Adam Cox, of The President and Immigration Law. Additional resources and transcripts available at constitutioncenter.org/constitution/media-library Questions or comments about the podcast? Email us at [email protected].

In the early morning on January 7, 2021, Congress certified President-elect Biden’s Electoral College victory after a pro-Trump mob stormed the U.S. Capitol. This episode reflects on the historic and constitutional significance of the events of “a date which will live in constitutional history.” Host Jeffrey Rosen was joined by Judge J. Michael Luttig, formerly of the U.S. Court of Appeals for the Fourth Circuit, and Dean Erwin Chemerinsky of Berkeley Law. They discuss the president’s debunked claims about the 2020 election results that sparked the riot; whether President Trump’s words at a rally held in Washington, D.C., on January 6 count as incitement under the law; what the blocking of President Trump’s social media accounts by Facebook and Twitter afterward means for freedom of speech; and what the unprecedented nature of the events means for the future of the country. Additional resources and transcripts available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at [email protected].

A panel of experts dives into what early American founding figures—including Thomas Jefferson, John and Abigail Adams, George Washington, Mercy Otis Warren, and Phyllis Wheatley—learned from the Greeks and Romans, from their early education through adulthood, and how that knowledge came to influence founding documents such as the Constitution and Declaration of Independence and the scope and shape of the American republic. They also explore the founders’ philosophical understanding of passion versus reason, the meaning of “happiness,” and how ancient philosophy continued to influence American democracy throughout turbulent times including the Civil War. Historians and authors Caroline Winterer and Carl Richard and Pulitzer Prize-winning journalist Thomas Ricks joined National Constitution Center President and CEO Jeffrey Rosen. This program originally aired on our companion podcast, Live at the National Constitution Center. Check it out on Apple Podcasts, Spotify, or wherever you listen to catch up on the live constitutional conversations we hosted in 2020. Additional resources and transcript available at constitutioncenter.org/interactive-constitution/media-library Questions or comments? Email us at [email protected].

2020 was a tumultuous and eventful year—starting with the impeachment trial, and then the COVID-19 pandemic, crucial conversations about racial inequality, the death of Justice Ruth Bader Ginsburg and addition of Justice Amy Coney Barrett to the Supreme Court, as well as the 2020 presidential election and ensuing court battles over it. How did the Constitution, and American institutions, prevail throughout? John Yoo, a professor at Berkeley Law who previously served in the Bush administration’s Justice Department, and Melissa Murray, a professor at NYU and co-host of the Supreme Court podcast Strict Scrutiny, reflect on that question and look back at the major events of 2020 through a constitutional lens. Jeffrey Rosen hosts. Additional resources and transcript available at https://constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the show? Email us at [email protected].

Article II, Section 2, of the Constitution says the president “shall have Power to grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment.” This episode explores presidential pardons past and present—from Thomas Jefferson’s pardons of people convicted under the Sedition Act, through President Carter pardoning Richard Nixon and George H.W. Bush pardoning those involved in the Iran-Contra scandal, to President Trump’s exercise of the pardon power today. Experts Brian Kalt of Michigan State Law School and Saikrishna Prakash of the University of Virginia Law School answer questions including: Can the president pardon himself? What does the history say? What are the limits of the pardon power? Does someone admit guilt when they accept a pardon? How might the Supreme Court rule on pardons? And more, in conversation with host Jeffrey Rosen. Additional resources and a transcript are available at constitutioncenter.org/interactive-constitution/media-library. Questions or comments about the podcast? Email us at [email protected].

In Roman Catholic Diocese of Brooklyn v. Cuomo (2020), the Supreme Court recently granted a preliminary injunction against (i.e. temporarily blocked) New York’s COVID-19 restrictions on attendance at houses of worship (pending further litigation), siding with the Roman Catholic Diocese of Brooklyn and two orthodox Jewish synagogues, who argued that the restrictions violated the free exercise of religion guaranteed by the First Amendment. Constitutional law experts Michael Dorf of Cornell Law School and David French of The Dispatch join host Jeffrey Rosen to unpack the decision, the restrictions at issue, and broader questions including: Has the Supreme Court become more open to claims of religious discrimination? And, in the context of the ongoing pandemic, does and should the Supreme Court still apply its usual judicial tests to determine if something is constitutional? They also explain the role of prior cases crucial to understanding the modern debate in the area of religious freedom law—from Employment Division v. Smith to Masterpiece Cakeshop and beyond. Questions or comments about the show? Email us at [email protected].

Can non-citizens be excluded from the census count, which serves as a basis of apportionment and allocates seats in the House of Representatives? Janai Nelson of the NAACP Legal Defense and Educational Fund and John Eastman of Chapman University debate this question, which is at the heart of Trump v. New York, the 2020 census case that the Supreme Court heard on November 30. Jeffrey Rosen moderates. Questions or comments about the podcast? Email us at [email protected].

The National Constitution Center’s Constitution Drafting Project brought together three teams of leading constitutional scholars—team libertarian, team progressive, and team conservative—to draft and present their ideal constitutions. The leaders of each team—Caroline Frederickson of team progressive, Ilya Shapiro of team libertarian, and Ilan Wurman of team conservative—joined host Jeffrey Rosen to share the process behind their approach to drafting their constitutions and agreeing on what to include and not to include; the overall structure of their constitutions as well as the specific constitutional ideas they added to and subtracted from the U.S. Constitution; and the similarities and differences between the three constitutions. Team libertarian also included Timothy Sandefur of the Goldwater Institute and Christina Mulligan of Brooklyn Law School. Team progressive also included Jamal Greene of Columbia Law School and Melissa Murray of New York University School of Law. Team conservative also included Robert P. George of Princeton University, Michael McConnell of Stanford Law School, and Colleen A. Sheehan of Arizona State University. The project was generously supported by Jeff Yass. Questions or comments about the show? Email us at [email protected].

A panel of experts from across the ideological spectrum joined National Constitution Center President Jeffrey Rosen on November 11 to consider what the 2020 election and its aftermath demonstrates about the political parties, polarization, and the state of American democracy today. They also explored how debates over what “truth” means have grown over the last four years, how that manifested in the election and its results, and where we’re headed next including the future of American values like free speech. The panel features Anne Applebaum and Yascha Mounk of the SNF Agora Institute and The Atlantic, David French of The Dispatch, and Charles Kesler of Claremont McKenna College. This episode originally aired on our companion podcast, Live at the National Constituiton Center, which shares live constitutional conversations hosted by the Center. Listen and subscribe or follow on Apple Podcasts, Spotify, or wherever you listen. Register to watch future programs live as Zoom webinars where you can ask your constitutional questions in the Q&A box. This program was presented in partnership with the SNF Agora Institute at Johns Hopkins University.

This week, the Supreme Court heard oral arguments in California v. Texas—a recent lawsuit bringing another challenge to the Affordable Care Act. In 2012, in NFIB v. Sebelius, the Supreme Court upheld the ACA as constitutional exercise of Congress’s taxing power; but Congress in 2017 eliminated the individual mandate which served as a basis for the tax rationale—and a group of states and individual plaintiffs sued to challenge the law’s validity once again. This episode recaps the arguments and how the justices—including Justice Amy Coney Barrett, whose faced many questions about the ACA during her confirmation hearings— reacted to the arguments on both sides. Host Jeffrey Rosen was joined by two experts on the Affordable Care Act and the Constitution: Abbe Gluck of Yale Law School, author of The Trillion Dollar Revolution: How the Affordable Care Act Transformed Politics, Law, and Health Care in America, and Ilya Shapiro of the Cato Institute, author of Religious Liberties for Corporations? Hobby Lobby, the Affordable Care Act, and the Constitution. Some terms that will be helpful to know for this week: Standing: the ability of a person or party to bring a lawsuit in court. For instance, if the person who brings the lawsuit has suffered some “injury” or will be likely to suffer an injury if a particular wrong is not remedied, they may have standing to bring the case. Severability: a legal principle that allows an unconstitutional or unenforceable provision or part of law to be “severed” out from the rest of the law, leaving the remaining parts of the law intact and in force. Questions or comments about the show? Email us at [email protected].

On November 4, as the nation watched and waited for election results, the Supreme Court continued business as usual, hearing oral arguments in one of the term’s key cases—Fulton v. City of Philadelphia. This lawsuit was brought by Catholic Social Services (CSS), a foster-care organization that works with the city of Philadelphia to certify prospective foster parents. When the city found out that CSS, due it its religious beliefs, would not certify unmarried or same-sex married couples to be foster parents, the city cut off foster-parent referrals to CSS, and CSS filed suit. To explain the case, recap the arguments on both sides, and explore the major implications a decision may have for how to balance anti-discrimination laws and religious freedom under the First Amendment—host Jeffrey Rosen was joined by Leah Litman, Michigan Law Professor and host of the Supreme Court podcast Strict Scrutiny, and Jonathan Adler, Professor at Case Western Reserve University School of Law and contributing editor to National Review Online. Questions or comments about the show? Email us at [email protected].

The Justice Department recently filed a lawsuit against Google, accusing the company of illegally maintaining monopolies over search and search advertising. This week’s episode details the ins and outs of the lawsuit, the allegations the government makes against Google, and what all this might mean for similar companies like Apple and the future of Big Tech. To figure out how we got here, we also look to the history of antitrust, including what happened when a similar lawsuit was brought against Microsoft. Leading experts on technology, antitrust, and the Constitution Tim Wu of Columbia Law School and Adam White of George Mason’s Antonin Scalia Law School join host Jeffrey Rosen. Questions or comments about the show? Email us at [email protected].

As the 2020 election quickly approaches, the Supreme Court issued two key rulings on state election laws this week—ruling 5-3 in Merill v. People First of Alabama to prevent counties from offering curbside voting in Alabama, and, in Pennsylvania Democratic Party v. Boockvar, upholding Pennsylvania’s extension of its mail-in ballot deadline by a 4-4 vote. This episode recaps those rulings, explores other key election-related cases before courts around the country, and explains the constitutional dimensions of legal battles over voting including why and how a court decides when state laws rise to the level of disenfranchisement or not. Emily Bazelon of the New York Times Magazine and co-host of Slate’s podcast “Political Gabfest”, and Bradley Smith, professor at Capital University Law School who previously served on the Federal Election Commission, join host Jeffrey Rosen. Questions or comments about the show? Email us at [email protected].

This week’s episode recaps the Senate Judiciary Committee’s Supreme Court confirmation hearings for Judge Amy Coney Barrett, discussing what the hearings revealed about Judge Barrett’s career, her judicial philosophy, and her approach to stare decisis and constitutional interpretation including her views on originalism, and how, if confirmed, Justice Barrett might rule on legal questions including: the recent challenge to the Affordable Care Act, reproductive rights, presidential power, any disputes arising from the 2020 election, the Second Amendment, religious liberty, race and criminal justice, and more. Kate Shaw, Professor at Cardozo Law School and co-host of the Supreme Court podcast Strict Scrutiny, and Michael Moreland, University Professor of Law and Religion at Villanova Law, join host Jeffrey Rosen. Terms that will be helpful to know for this week: Stare decisis: Latin for “to stand by things decided”; the doctrine of precedent—adhering to prior judicial rulings. Originalism: a judicial philosophy of constitutional interpretation holding that the words in the U.S. Constitution should be interpreted as they were understood at the time they were written. “Super precedents”: Landmark Supreme Court decisions whose correctness, according to many, is no longer a viable issue for courts to decide and so are unlikely to be overturned. Severability: a principle by which a court might strike down one portion of a law but the remaining provisions, or the remaining applications of those provisions, will continue to remain in effect. Questions or comments about the show? Email us at [email protected].

In light of President Trump and numerous other high-ranking government officials recently contracting COVID-19, this week’s episode explores the 25th Amendment, which outlines what happens if the president becomes unable to discharge the powers and duties of the office. We explore questions related to current concerns including: should President Trump have invoked the 25th Amendment when he was in the hospital? And questions that have arisen throughout American history such as: What happens if a vacancy in the office of president or vice president arises? What mechanisms does the 25th Amendment lay out for coping with that situation, and what scenarios does it fail to provide solutions for? What if the president is unable to fill his role but won’t step aside? And more. Host Jeffrey Rosen is joined by constitutional scholars David Pozen and Brian Kalt, who wrote an essay explaining the 25th Amendment for the National Constitution Center’s Interactive Constitution which you can read here https://constitutioncenter.org/interactive-constitution/interpretation/amendment-xxv/interps/159 Questions or comments about the show? Email us at [email protected].

The new U.S. Supreme Court term is set to begin Monday, October 5, the first day of remote oral arguments. To preview what’s ahead, Adam Liptak, Supreme Court reporter for the New York Times, and Marcia Coyle, Supreme Court correspondent for the Center’s blog Constitution Daily and Chief Washington correspondent for The National Law Journal, joined host Jeffrey Rosen. They explored how the election and the forthcoming confirmation battle over Judge Amy Coney Barrett’s nomination might affect the Court, how the Court might shift with the addition of a new ninth justice, and the key cases to be heard this term including: California v. Texas (the most recent challenge to the Affordable Care Act) Fulton v. Philadelphia (a case asking whether religious organizations must allow same-sex couples to become foster parents, and whether the Court should revisit its decision in Employment Division v. Smith) Torres v. Madrid (a police violence case asking when physical force constitutes a seizure under the Fourth Amendment) Tanzin v. Tanvir (a lawsuit related to the “no-fly list” and whether the Religious Freedom Restoration Act of 1993 allows lawsuits for money damages against federal agents) Carney v. Adams (a case about the First Amendment and state judges’ partisan affiliations) Questions or comments about the show? Email us at [email protected].

Following the passing of Justice Ruth Bader Ginsburg, Republicans have promised to nominate a new Supreme Court Justice swiftly, before the imminent presidential election. If the Republican-led Senate confirms a new nominee either before or closely after the November election, some Democrats have said they will respond by attempting to “pack”—or add justices—to the Supreme Court. This week’s episode looks to history, particularly to the 19th century and the Civil War era, to see what lessons from historic battles over the composition of the Court might teach us today. Host Jeffrey Rosen is joined by two renowned constitutional historians —Tim Huebner of Rhodes College and Mark Graber of the University of Maryland Carey Law School. Questions or comments about the show? Email us at [email protected].

On Constitution Day, September 17, the National Constitution Center awards the 2020 Liberty Medal to Justice Ruth Bader Ginsburg for her efforts to advance liberty and equality for all. As part of the Liberty Medal celebration—and the Center’s yearlong Women and the Constitution initiative celebrating 100 years of women’s suffrage—this podcast explores the Justice’s living constitutional legacy both before and after joining the Supreme Court bench, including her trailblazing work as a lawyer advocating for gender equality, then as an Associate Justice writing landmark majority opinions in addition to her well-known dissents, and today as cultural and constitutional icon who continues to inspire generations of Americans. Host Jeffrey Rosen is joined by Kelsi Corkran, head of the Supreme Court practice at Orrick, and University of California Berkeley Law Professor Amanda Tyler, who both clerked for Justice Ginsburg. Questions or comments about the show? Email us at [email protected].