We the People

Constitution Day— the anniversary of the signing of the Constitution on September 17th, 1787—is next week! As we look forward to Constitution Day, this week’s episode shares founding stories of America’s founding documents from three key periods: the Declaration of Independence and the Revolution, the Founding era, and post-Civil War Reconstruction, sometimes referred to as the “second founding.” Renowned teachers of the Constitution, Dean Erwin Chemerinsky and professor Kurt Lash, tell the stories of: Thomas Paine’s Common Sense: the power of words and a single person to change the course of American history Thomas Jefferson, the Declaration of Independence, and how Jefferson’s words may have impacted abolition James Madison’s rejection of the Alien and Sedition Act of 1798 and how it may have influenced abolitionists' fight for the freedom of formerly enslaved people like Joshua Glover The creation of the Electoral College The story of the adoption of the 14th amendment from different perspectives The debate over whether the Constitution is pro or anti-slavery What unites us in how we understand the story of our Constitution Tune into the NCC’s Constitution Day programming next Thursday! See the schedule here: https://constitutioncenter.org/learn/civic-calendar/constitution-day-civic-holiday

In August, the Democratic and Republican parties held their conventions mostly virtually for the first time in history due to the coronavirus crisis. This week on We the People we look back to past conventions throughout history. Host Jeffrey Rosen and scholars John Gerring and Michael Holt explore the constitutional positions the parties have taken from the Founding to the Civil War era and beyond, diving into nineteen century party platforms to consider the evolution of the parties’ constitutional positions. Questions or comments about the show? Email us at [email protected].

In celebration of the 100th anniversary of the ratification of the 19th Amendment on August 18th and its certification on the 26th—this episode dives into the story of the 19th Amendment from its roots among abolition and the Civil War and Reconstruction through its ratification, the fight for the Equal Rights Amendment, and beyond. 19th Amendment experts and historians Reva Siegel and Laura Free explain when and why the word “male” was first introduced into the Constitution, how the right to vote radically changed women’s position within the family, and how we can and should expand the our constitutional story to include the many diverse groups who advocated for suffrage. Learn more about the National Constitution Center’s new exhibit The 19th Amendment: How Women Won the Vote and check out its online interactive content here https://constitutioncenter.org/experience/exhibitions/feature-exhibitions/women-and-the-constitution-feature-exhibit Questions or comments about the show? Email us at [email protected].

President Trump recently signed several executive actions and, in doing so, some have argued the president overstepped his constitutional authority and infringed on congressional power. This week’s episode considers those claims in regards to the president's recent actions on coronavirus crisis relief, the post office, and more. It also examines how presidential power has grown over time, how we think about the three branches and the “political” Constitution versus the legal one, and more. Constitutional and administrative law experts Adam White and David Super join host Jeffrey Rosen. Questions or comments about the podcast? Email us at [email protected].

Last week, historians Martha Jones and Lisa Tetrault joined National Constitution Center President and CEO Jeffrey Rosen for a conversation exploring the history and legacy of the 19th Amendment. The discussion highlighted the untold stories of women from all backgrounds who fought for women's suffrage and equality for all—as well as the work still left to do after the Amendment's ratification was won. Martha Jones is author of the new book Vanguard: How Black Women Broke Barriers, Won the Vote, and Insisted on Equality for All. Lisa Tetrault is author of The Myth of Seneca Falls: Memory and the Women's Suffrage Movement, 1848-1898. This conversation originally aired on our companion podcast, Live at the National Constitution Center. Listen and subscribe here: https://podcasts.apple.com/us/podcast/live-at-americas-town-hall/id1037423300 This program was presented as part of the 19th Amendment: Past, Present, and Future symposium presented in partnership with All in Together, the George & Barbara Bush Foundation, the LBJ Presidential Library, the National Archives, The 19th, and the Ronald Reagan Presidential Library. It’s part of the National Constitution Center's Women and the Constitution initiative—a yearlong celebration of the 100th anniversary of the 19th Amendment. Questions or comments about the show? Email us at [email protected].

As the coronavirus crisis presents major challenges for voting this November, today’s episode looks backs at past elections during major crises in American history. How were they handled, what were their outcomes, and what are the lessons learned for election 2020? Kim Wehle, CBS News commentator and professor at the University of Baltimore Law School, and historian Jonathan White of Christopher Newport University explore key elections such as the Election of 1864 carried out in the throes of the Civil War, midterms conducted in the midst of the 1918 flu pandemic, and landmark presidential elections during World Wars I and II. They also consider how absentee voting and vote-by-mail has evolved over time, how voter fraud has been perceived throughout American history, and whether it presents a challenge for the upcoming election. President and CEO Jeffrey Rosen hosts. Questions or comments about the show? Email us at [email protected].

Portland has seen more than 60 consecutive days of protests since the killing of George Floyd. The protests escalated when federal forces were deployed in Portland to protect its federal courthouse, angering protestors and local officials who said they did not ask for the federal deployment. On Wednesday, Oregon Governor Kate Brown announced that federal officials will soon begin withdrawing from the city, although they remained as of Thursday morning. On today’s episode, we’ll discuss the rapidly evolving situation in Portland—exploring the First, Fourth, and Fifth Amendment rights of protestors; the president’s power to deploy federal forces in the states to protect federal property, and the limits on that power; and more. Host Jeffrey Rosen was joined by John Inazu, an expert on the First Amendment right of assembly, and Bobby Chesney, an expert on the president’s power to deploy federal forces. Questions or comments about the podcast? Email us at [email protected].

In the term that just wrapped up, the Supreme Court decided several key cases weighing the First Amendment’s protection of free exercise of religion in relation to workers’ rights and antidiscrimination concerns, the separation of church and state, and more. This week’s episode examines those cases including: Espinoza v. Montana Dept. of Revenue holding that Montana can’t deny tuition assistance to parents who send their children to religious-affiliated private schools Our Lady of Guadalupe v. Morrissey-Berru holding that the plaintiffs, teachers at religious schools, couldn’t sue for employment discrimination because, under the “ministerial exception,” their schools can make decisions about teaching without government interference Little Sisters of the Poor Saints Peter and Paul Home v. Pennsylvania: holding that religious employers don’t have to provide health insurance for contraceptive coverage if doing so violates their beliefs Host Jeffrey Rosen is joined by constitutional law scholars Leah Litman and Michael McConnell. Questions or comments about the show? Email us at [email protected].

Last week, host Jeffrey Rosen was joined by Minnesota Attorney General Keith Ellison and Ohio Attorney General Dave Yost for a bipartisan discussion about the role of state attorneys general in addressing policing reform, protests, and other constitutional challenges facing their states today. This conversation was a hosted as an online America’s Town Hall program. Hear more programs on our companion podcast Live at the National Constitution Center https://podcasts.apple.com/us/podcast/live-at-americas-town-hall/id1037423300 or register for an upcoming program—to watch live via Zoom and ask speakers questions in the Q&A—at https://constitutioncenter.org/townhall. You can also watch videos of archived programs on the National Constitution Center’s Interactive Constitution Media Library https://constitutioncenter.org/interactive-constitution/media-library. This program is presented in partnership with the Center for Excellence in Governance at the National Association of Attorneys General.

The 2019-2020 Supreme Court term recently ended with a series of blockbuster opinions involving presidential subpoenas, religious liberty, abortion, the Electoral College and more. Supreme Court experts Kate Shaw of Cardozo Law School and Ilya Shapiro of the Cato Institute join host Jeffrey Rosen to recap those opinions and more. They also weigh in on Chief Justice Roberts’ efforts to put the institutional legitimacy of the Court front and center in this historic term. Questions or comments about the show? Email us at [email protected].

In 1852, the Ladies Anti-Slavery Society of Rochester, New York, invited Frederick Douglass to give a July Fourth speech. Douglass opted to speak on July 5 instead, and, addressing an audience of about 600, he delivered one of his most iconic speeches that would become known by the name “What to the Slave is the Fourth of July?” This episode explores Douglass’ oration on racial injustice and the broken promises of equality and liberty laid out in the Declaration of Independence. David Blight, Pulitzer Prize-winning Douglass biographer, and Lucas Morel, an expert on Douglass and African American history and politics, join host Jeffrey Rosen. They discuss the context and content of the speech, which Blight calls “the rhetorical masterpiece of abolition.” They also explore Douglass’ views of the Declaration of Independence—including that the principles expressed in the Declaration are eternal, but America does not live up to them in practice—as well as the Constitution. Finally, they reflect on what Douglass can teach us about the challenges America faces today, including the ongoing fight for racial justice and efforts to remove monuments around the country. The full text of the speech is available here https://teachingamericanhistory.org/library/document/what-to-the-slave-is-the-fourth-of-july/ Questions or comments about the show? Email us at [email protected].

Last week, the Supreme Court ruled 5-4 that the Deferred Action for Childhood Arrivals program (DACA) will remain in place, ruling that the Trump administration’s attempts to rescind DACA were “arbitrary and capricious.” This episode details the Supreme Court’s majority opinion, written by Chief Justice Roberts, and the partial dissents by Justices Thomas, Alito and Kavanaugh, and how the case arose including the history of DACA under the Obama and Trump administrations. Constitutional law scholars Leah Litman, who co-hosts the podcast Strict Scrutiny, and Jonathan Adler, who blogs for the Volokh Conspiracy, join host Jeffrey Rosen. Questions or comments about the show? Email us at [email protected].

This week, the Supreme Court issued its decision in Bostock v. Clayton County, Georgia and two related cases, holding that an employer who discriminates against or fires an individual for being gay or transgender violates Title VII of the Civil Rights Act of 1964. This episode explores this landmark decision with Joshua Matz, a constitutional lawyer who wrote a key amicus brief in support of the employees in these cases, and Dr. Matthew Franck of Princeton University. They dive into the “weeds” of Justice Gorsuch’s majority opinion, the dissenting opinions by Justices Alito and Kavanaugh, and the reasoning behind them—then take a step back and examine the “forest” view of how this ruling may affect LGBTQ people as well as religious groups and others more broadly. Questions or comments about the show? Email us at [email protected].

Last Friday, the National Constitution Center hosted a two-part national Town Hall program on policing, protests, and the Constitution. The wide-ranging discussions covered qualified immunity for police officers, the history of racial inequality, protests and the First Amendment, and more. Part two of the discussion features Monica Bell of Yale Law School, David French of The Dispatch, Janai Nelson of the NAACP Legal Defense and Educational Fund, and Theodore Shaw of the University of North Carolina School of Law. Part one is a keynote conversation featuring Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit, and you can listen to that here https://podcasts.apple.com/us/podcast/live-at-ncc-policing-protests-constitution-part-1/id83213431?i=1000477612011 Jeffrey Rosen moderates. Listen and subscribe to Live at the National Constitution Center here https://podcasts.apple.com/us/podcast/live-at-americas-town-hall/id1037423300 Questions or comments about the show? Email us at [email protected].

Last Friday, the National Constitution Center hosted a two-part national Town Hall program on policing, protests, and the Constitution. This episode—which originally aired on our companion podcast Live at the National Constitution Center—features National Constitution Center President Jeffrey Rosen’s keynote conversation with Judge Theodore McKee of the U.S. Court of Appeals for the Third Circuit. Their wide-ranging discussion covered qualified immunity for police officers, the history of racial inequality, protests and the First Amendment, and more. In part two, leading scholars touch on those topics further, and you can listen to that episode here https://podcasts.apple.com/us/podcast/live-at-ncc-policing-protests-constitution-part-2/id83213431?i=1000477612012 Listen and subscribe to Live at the National Constitution Center here https://podcasts.apple.com/us/podcast/live-at-americas-town-hall/id1037423300 Questions or comments about the show? Email us at [email protected].

Last week, Twitter added a fact-check message to President Trump's tweets about voter fraud and vote by mail, and a notice that one of his tweets about recent protests violated Twitter’s policy against glorifying violence. In response to the fact-check, the President signed an executive order aimed at limiting the legal protections given to online platforms under Section 230 of the Communications Decency Act. This episode explores Section 230—what does it say and how has it influenced speech online?—and the potential consequences of the executive order. It also takes a broader look at content regulation on Twitter, Facebook, and other platforms, and how that squares with First Amendment values. Host Jeffrey Rosen was joined by digital speech experts Professor Kate Klonick and David French. Questions or comments about the show? Email us at [email protected].

Coronavirus has presented difficulties in holding presidential primaries this spring and will continue to pose challenges for the general election. Some states have responded by implementing vote by mail (although those decisions have brought logistical challenges like those that Pennsylvania currently faces) while some that have not are facing lawsuits. The U.S. Supreme Court also recently issued a ruling about voting in Wisconsin in April, RNC. v. DNC, which involved questions about counting absentee ballots amidst the risks that in-person voting might present. This episode explores those cases as well as the latest news surrounding how Americans will vote in the midst of the pandemic, and, broadly, what the Constitution and Supreme Court precedent require. Election law experts Ned Foley and Michael Morley join host Jeffrey Rosen to discuss. Questions or comments about the show? Email us at [email protected].

Last week, the Supreme Court heard oral arguments by teleconference, and the National Constitution Center recapped those arguments live on C-SPAN with advocates on either side of each case. On this week’s episode we’re sharing the recap for the cases Colorado Dept. of State v. Baca and Chiafalo v. Washington, about "faithless electors" and the electoral college. Those cases ask whether states can penalize or remove a presidential elector because they refused to vote for the candidate who won their state's popular vote. Host Jeffrey Rosen was joined by David Kopel, the research director of the Independence Institute who wrote a brief in support of the “faithless electors,” and Paul Smith, vice president of litigation and strategy at the Campaign Legal Center who wrote a brief in support of the states. Hear more argument recaps on We the People and our companion podcast, Live at the National Constitution Center. This week’s episode of Live at the National Constitution Center features the argument recap of the cases asking whether President Trump must release financial records to House committees and prosecutors, and you can listen to that here. Questions or comments about the podcast? Email us at [email protected].

This week, the Supreme Court continued to hear oral arguments by teleconference, and the National Constitution Center recapped those arguments live on C-SPAN with advocates on either side of each case. Today we’re sharing the recap for Our Lady of Guadalupe School v. Morrissey-Berru—which raises the question of whether two former teachers who taught at Catholic schools fall under the "ministerial exception,” and thus are unable to sue their employers for alleged employment discrimination. Host Jeffrey Rosen was joined by Sunu P. Chandy, Legal Director of the National Women’s Law Center, and UCLA law professor Eugene Volokh to explain the case and recap the argument. The National Constitution Center recapped all of the Supreme Court's remote arguments live on C-SPAN. You can watch the rest of those recaps on our YouTube channel at YouTube.com/constitutioncenter or hear more in the coming weeks on this podcast and our companion podcast Live at the National Constitution Center. Questions or comments about the podcast? Email us at [email protected].

This week, the Supreme Court heard oral arguments by teleconference, allowing the public to listen in, in real time, for the first time in history. On Monday, the Court heard United States Patent and Trademark Office v. Booking.com—a case about whether Booking.com can trademark its name. Immediately following the argument, host Jeffrey Rosen was joined by three experts who filed briefs on different sides of the case—Corynne McSherry of Electronic Frontier Foundation, professor Rebecca Tushnet of Harvard Law School, and Margaret Duncan of Loyola University Chicago School of Law—to recap the argument, explain the case, and reflect on a historic moment for the Court. The National Constitution Center collaborated with C-SPAN to broadcast this conversation live. The National Constitution Center recapped all of the arguments heard this past week live on C-SPAN. You can watch the rest of those recaps on our YouTube channel at YouTube.com/constitutioncenter. The Supreme Court will hear additional arguments next Monday, Tuesday, and Wednesday, starting at 10 a.m. EDT, and then Jeff will be back on C-SPAN to recap them with some of the leading experts involved in the cases. So please tune in! Questions or comments about the podcast? Email us at [email protected].

The coronavirus pandemic has seriously impacted the criminal justice system—as prisons experience severe outbreaks, states release nonviolent offenders, trials experience delays, and some jurisdictions halt arrests for misdemeanors to keep jail populations down. On this episode, criminal justice experts Emily Bazelon and Paul Cassell weigh in on those and other changes affecting criminal justice systems around the country, and potential long-term impacts. They also explain defendants’ rights under the Constitution as well as victims’ rights, and detail some recent lawsuits filed, both on behalf of prisoners arguing that being detained in the midst of a pandemic violates the Eighth Amendment’s protection from cruel and unusual punishment claims, and by victims requesting notification of perpetrators’ release. Bazelon is the author of Charged: The Movement to Transform American Prosecution and End Mass Incarceration and Cassell is a former federal judge who now specializes in victims’ rights and is a law professor at the University of Utah. They join host Jeffrey Rosen. Questions or comments about the show? Email us at [email protected].

As the United States seems to begin to flatten its curve of new coronavirus cases, President Trump has claimed he has the authority to reopen the economy and the nation. Evaluating that claim in relation to both presidential power under Article II and state power under the 10th Amendment—professors John Yoo and Alison LaCroix join host Jeffrey Rosen. They give their takes on the president’s claims and conduct in the midst of coronavirus and evaluate what he can and can’t do in light of the system of separation of powers and federalism; comment on whether the president can or should withdraw from the World Health Organization, suspend immigration, and support citizen protests against governors; and place these contemporary debates in historical context. A term that will be helpful to know for this week—federalism. Federalism is the constitutional division of power between U.S. state governments and the federal government. Professors Yoo and LaCroix detail the history of federalism and how it’s evolved from the founding to today.

On Monday, the Supreme Court announced that it will hear its May oral arguments over the phone, allowing the public to listen in live for the first time. On this episode, host Jeffrey Rosen first interviews Marcia Coyle, chief Washington correspondent for The National Law Journal, to discuss that change and other adjustments the Court has made due to the coronavirus pandemic. Coyle is also the new Supreme Court correspondent for the National Constitution Center’s blog Constitution Daily. Next, Jeff is joined by appellate lawyer Jaime Santos and Case Western Law professor Jonathan Adler to dive into the substance of the cases recently decided, and those being argued in May. Questions or comments about the show? Email us at [email protected].

Responses to the coronavirus pandemic may be posing a danger to democracies around the world—as fault lines in constitutional systems are exposed and some authoritarian leaders attempt to grab broad powers. Two experts on constitutional and international law — Professor Kim Lane Scheppele of Princeton University and Professor Deborah Pearlstein of Cardozo Law School — join host Jeffrey Rosen to explore the governmental challenges raised by COVID-19 in the United States and around the world. Scheppele – one of the foremost experts on Hungary – sheds light on the country’s dangerous recent slide into authoritarianism, made worse by a “draconian” emergency law passed under the guise of combatting coronavirus. And Pearlstein shares insights from her recent work on how the outbreak can impede elections and how Congress should begin preparing for election 2020. Questions or comments about the show? Email us at [email protected].

Some of Americans’ civil liberties—like the freedom to assemble in public, the right to travel, the ability to purchase a gun at a gun store or visit a reproductive health clinic, the freedom to exercise religion by going to church, and more— are typically exercised in person. As states enforce the stay-at-home orders necessary to prevent the spread of coronavirus, how will those rights be impacted? And what will happen to them after the crisis is over? This episode explores those questions as First Amendment experts Lata Nott and David French join host Jeffrey Rosen. Questions or comments? Email us at [email protected].

Congress and the courts depend on meeting in-person, so how can they adjust to the coronavirus outbreak and the public health measures necessary to stop its spread – like social distancing – while continuing to meet their constitutional functions? Host Jeffrey Rosen explores that question with Norm Ornstein of the American Enterprise Institute, who’s worked since the aftermath of 9/11 on emergency-preparedness recommendations for all three branches of government, and lawyer and podcast host Ken White, who sheds light on how the pandemic is affecting his clients and the courts more broadly. They share insight into what’s keeping Congress from meeting virtually, how courts will deal with suspended arguments, what might happen to incarcerated people in the midst of the pandemic, continuing concerns about presidential succession, and more—in a wide-ranging conversation on how the U.S. government functions during a national emergency, and what reforms may be necessary to ensure it can continue to function in future crises. A term that will be helpful to know for this episode — Quorum: a majority, in the House of Representatives and in the Senate. The Constitution requires a majority of senators, 51, for a quorum, and, when there are no vacancies in its membership, a quorum in the House is 218. Article I, Section 5 of the Constitution stipulates that “a majority of each [House] shall constitute a quorum to do business.” Questions or comments about the podcast? Email us at [email protected].

Jeffrey Rosen is joined by public health law experts Polly Price of Emory University School of Law and Ed Richards of Louisiana State University Law Center to discuss key questions about the coronavirus and the Constitution. Starting with the history of quarantines prior to and during the Founding era, they explain how the government combatted diseases when, as Ed puts it, “The colonies were basically fever-ridden swamps.” Drawing examples from public health responses to outbreaks of yellow fever and the 1918 influenza pandemic through the AIDS epidemic and SARS, they also answer questions including: What restrictions can government authorities enact under the Constitution during a pandemic—from quarantines to isolation measures, to shutting down private businesses? How do the powers of state and federal governments interact during emergency scenarios? Would it be constitutional for the government to impose the kind of lockdown that has occurred in China or Italy, and, if so, would the Supreme Court intervene? And what might happen next? Questions or comments about the podcast? Email us at [email protected].

A challenge to the Louisiana abortion law that requires doctors performing abortions to have hospital admitting privileges was heard by the Supreme Court last week. Julie Rikelman of the Center for Reproductive Rights, who argued on behalf of the abortion providers in June Medical Services v. Russo, and Catherine Glenn Foster of Americans United for Life, who authored an amicus brief on behalf of Members of Congress on the opposing side of the case, joined host Jeffrey Rosen on this week’s episode. They presented the arguments on both sides of the case — diving into the facts, considering whether admitting privilege requirements are prudent and whether the “undue burden” standard established by the 2016 Supreme Court case Whole Women’s Health v Hellerstedt is workable, and explaining how they think this case might impact the lives of women. Questions or comments about the podcast? Email us at [email protected].

Richard Cordray, the first Director of the Consumer Financial Protection Bureau from 2012-2017, and Ilya Shapiro, the co-author of an amicus brief in support of Seila Law, joined host Jeffrey Rosen to discuss the Seila Law LLC v. Consumer Financial Protection Bureau case. This case, which the Supreme Court heard oral arguments in on Tuesday, is a challenge to the constitutionality of the leadership structure of the CFPB, and its outcome could affect the future of the agency as a whole. The CFPB is a regulatory agency responsible for consumer protection in the financial sector. Currently, the president can only fire the CFPB director “for cause,” i.e. only for wrongdoing, not for a policy disagreement. This lawsuit asks whether that restriction violates presidential power and the separation of powers, and, if it does, can it be struck down without invalidating the entire Dodd-Frank Act, which created the CFPB? This episode explores those questions and more. Questions or comments about the podcast? Email us at [email protected].

The controversy over the sentencing of President Trump’s former associate Roger Stone has raised larger questions about the role of the Department of Justice, presidential power, and the rule of law including: Should the president be able to influence sentencing in individual cases? What level of control should he have over DOJ? And, more broadly, how should the president exercise power? Host Jeffrey Rosen dives into those questions with Professor John Yoo, former Deputy Assistant Attorney General in the Office of Legal Counsel at the Justice Department, and Professor Kim Wehle, former assistant U.S. attorney in Washington, D.C. Need a refresher on the Stone sentencing controversy? Here’s a timeline of events from ABC News. Questions or comments about the podcast? Email us at [email protected].

Picking up on some of the themes of last week’s episode, historians Lindsay Chervinsky and Craig Bruce Smith discuss how George Washington conceived of civic virtue, honor, and public service both as a general and as president. They explain why, during the Revolution, “without Washington there was no army” and, how, later, President Washington was considered by many to be “the embodiment of the nation.” Smith and Chervinsky offer a holistic portrayal of Washington — the good and the bad — and contemplate his constitutional legacy as the creator of a powerful executive branch and the first president to peacefully transfer power. Washington’s birthday is this Saturday, February 22. Correction: In this episode, Jeff mistakenly said that Alexis Coe’s book You Never Forget Your First: A Biography of George Washington includes a claim that Washington “likely engaged in premarital sex - nonconsensual sex - with an enslaved woman.” Instead, Coe actually quotes a letter written about Washington that describes his possible premarital sex with a “Cirprian Dame,” and explains what that term might have meant. Questions or comments about the podcast? Email us at [email protected].

In these polarized times and in the wake of impeachment – how can we be a better “We the People”? Host Jeffrey Rosen is joined by Margaret Taylor of Lawfare and Adam White of AEI to discuss the values that our founders thought were necessary to uphold American government, and whether or not the American people and our representatives are living up to them. The episode centers around the idea of civic virtue: a political philosophy term which describes personal qualities associated with the effective functioning of the civil and political order, or the preservation of its values and principles (per Encyclopedia Britannica.) Margaret Taylor and Adam White are authors of pieces for The Battle for the Constitution – a partnership between The National Constitution Center and The Atlantic which features essays exploring the constitutional issues at the center of American life. Check out the page here: https://www.theatlantic.com/projects/battle-constitution/ Questions or comments about the podcast? Email us at [email protected].

This live conversation at George Washington Law School recaps the arguments presented on both sides of the impeachment trial. GW Law professor Andrew Knaggs – who served in the Trump administration’s Department of Defense – presents arguments against convicting the president, and his colleague Professor Peter Smith – a former Justice Department lawyer – presents pro-conviction arguments. They discuss the facts and circumstances surrounding President Trump’s impeachment, how “mixed motive” situations should be dealt with, what constitutes obstruction of Congress, whether or not impeachable offenses must be crimes, and more. Host Jeffrey Rosen moderates. Questions or comments about the podcast? Email us at [email protected].

The Virginia legislature ratified the Equal Rights Amendment earlier this month, and Virginia, Illinois, and Nevada filed a lawsuit this morning urging a federal judge to declare that the ERA is now part of the Constitution. This episode explores the fast-developing constitutional question of whether an amendment that declares that “equality of rights under the law shall not be denied or abridged by the United States or any state on account of sex” will be adopted, despite its unusual ratification process. Dr. Julie Suk, author of a forthcoming book on the ERA, and Professor Sai Prakash, author of an article on its ratification process, join host Jeffrey Rosen. Questions or comments about the podcast? Email us at [email protected].

This week, the Supreme Court heard arguments in Espinoza v. Montana Department of Revenue – a case that may have major implications for the free exercise of religion and the future of school choice and public education. The lawsuit asks whether Montana violated the federal constitution when it terminated a program that gave tax breaks to people who donated to a scholarship fund, which was used by students attending both religious and secular private schools. Our guests explain the technicalities of the case, and how it squares with some of the Court’s key decisions on the separation of church and state. Host Jeffrey Rosen is joined by Michael Bindas – a senior attorney with the Institute for Justice (IJ), the group representing the parents who filed suit after the program was terminated – and Alice O’Brien – General Counsel at the National Education Association (NEA), who’s written about the case for SCOTUSblog. Questions or comments about the show? Email us at [email protected].

Today, Chief Justice John Roberts was sworn in at the United States Senate to preside over the third presidential impeachment trial in American history. On this week’s episode, Ken Starr, the former independent counsel who investigated President Clinton before his impeachment, and Joan Biskupic, CNN Supreme Court analyst and biographer of Chief Justice Roberts, join host Jeffrey Rosen to preview the trial. They discuss how disagreements over trial procedure, including whether or not to call witnesses, might be resolved. They also offer insight into how the Chief will likely handle his role, and how past Chief Justicse have presided. [This episode was recorded on Monday, January 13th, before the announcement that Ken Starr would be joining President Trump's legal team.] Questions or comments? Email us at [email protected]. [Jeff offers a special chance to win his book Conversations with RBG if you write in before 11:59 a.m. on 1/20/19 completing the stanza of one of his favorite operas. Book contest open to US + Canada legal residents 18 +. No purchase necessary; void where prohibited! Limit one per listener.]

In this episode, two war powers experts explain and grapple with the legal and constitutional ramifications of the U.S. airstrike that killed Iranian military leader General Qassem Soleimani in Baghdad last week. Did the president have the authority under the Constitution – as Commander-in-Chief of the armed forces – and under domestic and international law to unilaterally carry out the airstrike? Can it be justified as an act of self-defense, a response to an “imminent threat”, or anything less than an act of war? Or, does the law require Congress, not the president, to authorize such strikes? John Bellinger, former State Department Legal Adviser under Secretary of State Condoleeza Rice, and Oona Hathaway, an international law professor at Yale Law and Adviser to the State Department, answer those questions and more in conversation with host Jeffrey Rosen. Questions or comments about the podcast? Email us at [email protected].

The case that may determine if former White House Counsel Don McGahn must testify before Congress – about whether President Trump obstructed justice during the Mueller investigation – is being argued on appeal tomorrow, January 3rd. And, three other cases concerning requests for President Trump’s financial records – issued by Congress and, separately, by a New York State grand jury – will be heard by the Supreme Court in early 2020. All of these cases involve subpoenas – written orders compelling an individual or organization to produce evidence or to testify – and raise important questions about the power of Congress and the states to investigate the president and his aides. Guests Steve Vladeck of the University of Texas School of Law and Andy Grewal of Iowa Law join host Jeffrey Rosen to explain all four cases: These three cases will be heard by the Supreme Court in March 2020: Trump v. Mazars: The House Committee on Oversight and Reform issued a subpoena requesting that President Trump’s accounting firm Mazars USA turn over financial records of President Trump and several of his business entities. The committee states that it's investigating whether and how to legislate on presidential financial disclosure requirements. The U.S. Court of Appeals for the D.C. Circuit ruled that the committee’s subpoena is valid. Trump v. Deutsche Bank: The House Committee on Financial Services and the House Intelligence Committee issued subpoenas requesting that President Trump’s creditors, Deutsche Bank and Capital One, release documents related to President Trump’s, his family’s, and his business’s finances. The committees state that they’re investigating whether and how to legislate on the practices of financial institutions and potential presidential conflicts of interest. The U.S. Court of Appeals for the Second Circuit upheld the subpoenas. In this case and Mazars, the Trump administration is arguing (among other things) that the subpoenas exceed the committees’ powers and do not serve a “legitimate legislative interest.” Trump v. Vance: Cyrus Vance, district attorney of the County of New York, issued a state of New York grand jury subpoena requesting nearly 10 years’ worth of the president’s financial papers and his tax returns for an inquiry into whether the President or his businesses violated New York law. The U.S. Court of Appeals for the Second Circuit upheld the subpoenas. This case differs from the other two because the subpoena was issued by a state, not federal, authority. The McGahn case 4.Committee on the Judiciary, U.S. House of Representatives v. Donald F. McGahn II: The House Judiciary Committee issued a subpoena calling for former White House Counsel Don McGahn to testify before the committee on whether President Trump obstructed justice in Special Counsel Robert S. Mueller III’s investigation of Russian interference in the 2016 U.S. election. U.S. District Judge Ketanji Jackson ruled that McGahn must testify, and the Trump administration’s appeal of that decision will be heard by the U.S. Court of Appeals for the District of Columbia tomorrow. Questions or comments about the podcast? Email us at [email protected].

2019 saw the impeachment of a president for just the third time in American history, the release of the Mueller report, and court battles over DACA, reproductive rights, and the Affordable Care Act. David French, TIME columnist and senior editor at The Dispatch, and Kate Shaw, Cardozo Law professor and ABC Legal Analyst, join host Jeffrey Rosen to review this year in constitutional debate. They give their takes on the possible long-term constitutional implications of the ongoing impeachment, Special Counsel Robert Mueller’s investigation in retrospect, and how the “Kavanaugh Court” is likely to rule in a key upcoming abortion case, the battle over rescinding DACA, and the question of whether President Trump must release his financial records. Questions or comments about the show? Email us at [email protected].

U.S. Supreme Court Justice Ruth Bader Ginsburg joins National Constitution Center President and CEO Jeffrey Rosen to discuss his new book, Conversations with RBG: Justice 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. They expand upon several of the conversations featured in the book, such as Justice Ginsburg’s favorite dissents, key gender cases she worked on throughout her career, and how to lead a productive, compassionate life of service. They also reflect on the performance that preceded the discussion. The discussion was preceded by a special performance of “The Long View: A Portrait of Ruth Bader Ginsburg in Nine Songs” by Patrice Michaels, composer/soprano/creator and daughter-in law of Justice Ginsburg. The National Constitution Center gratefully acknowledges the Bernstein Family Foundation for its generous support of our education programs in Washington D.C. This program is made possible in part through support from the John Templeton Foundation. Questions or comments about the podcast? Email us at [email protected].

As the House Judiciary Committee unveils articles of impeachment against President Trump, we’re sharing a fascinating two-part conversation on impeachment hosted here at the National Constitution Center on December 2nd. The first panel features leading constitutional scholars including NCC Scholar-in-Residence Professor Michael Gerhardt who testified as an impeachment expert before the House Judiciary Committee. The next panel (starting at 37 minutes) features current and former members of congress, including Vice Chair of the House Judiciary Committee Representative Mary Gay Scanlon. They share their candid takes on the current impeachment inquiry, how it’s been handled, and what the Framers might think. This program was originally shared on our companion podcast, Live at America’s Town Hall, in two parts. You can listen at these links: part one featuring the impeachment scholars and part two featuring the current and former members of Congress. Panel one features: Michael Gerhardt – National Constitution Center Scholar in Residence, CNN impeachment expert, and professor at UNC Law School Keith Whittington – professor of politics at Princeton University Kimberly Wehle – professor at the University of Baltimore School of Law and CBS News legal analyst John Malcolm – Vice President of the Institution for Constitutional Government at Heritage Moderator: Jeffrey Rosen – National Constitution Center President Panel two features: Rep. Dwight Evans (PA-03) Rep. Mary Gay Scanlon (PA-05) Fmr. Rep. Charles Dent (PA-15) Fmr. Rep. Ryan Costello (PA-06) Moderator: Jeffrey Rosen – National Constitution Center President Questions or comments about the podcast? Email us at [email protected].

On Monday, the Supreme Court heard the case New York Rifle and Pistol Association v. the City of New York which centers around a New York City gun regulation prohibiting residents from taking their guns to second homes and shooting ranges outside the city. After New York’s NRA affiliate and some gun-owning residents challenged the regulation, New York changed it – raising the question of whether this case is now “moot.” Explaining the “mootness” issue and diving into the legal and practical implications of the case – Second Amendment experts Darrell Miller of the Duke Center for Firearms Law and Clark Neily of Cato join host Jeffrey Rosen. They discuss the history, text, and tradition of the Second Amendment, what the right to “bear arms” really means, and how the Court should decide its first major Second Amendment case in almost a decade. Here’s some vocabulary that may be helpful to know this week: Mootness: A case becomes moot if the controversy 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: The most deferential kind of review. The law must be rationally related to a legitimate government interest. Special thanks to the Duke Center for Firearms Law. Questions or comments about the podcast? Email us at [email protected].

The National Constitution Center’s initiative, ‘A Madisonian Constitution for All,’ is launching an essay series where leading scholars explore what James Madison, the “father of the Constitution”, might think about the presidency, Congress, courts, and the media today. This week, two of the authors celebrate the launch of the series by diving into all things presidential – how the office was conceived of at the Founding, evolved throughout history, was impacted by the rise of political parties and partisanship, and increasingly expanded its power. They also give their takes on the current impeachment investigation. Scholars Sai Prakash and Sean Wilentz, authors of the ‘Madisonian Constitution for All’ essays on the presidency, join host Jeffrey Rosen. Questions or comments about the podcast? Email us at [email protected].

Twitter recently announced that it will stop paid political advertising, with Twitter CEO Jack Dorsey asserting that interest in political messaging should be earned, not bought. Meanwhile, Facebook’s CEO Mark Zuckerberg announced that Facebook would not stop hosting political ads, saying that the platform should not be responsible for policing speech online. Will Twitter’s efforts to regulate political ads work? Might Facebook’s more “hands-off” approach lead to unintended consequences for our democracy? Which approach to regulating speech might foster free expression the most? And how do policies of private institutions shape our free speech landscape, given that the First Amendment doesn’t bind Twitter or Facebook? This year marks the 100th anniversary of the Supreme Court decision Abrams v. United States, so we also consider: Are the landmark First Amendment cases, many of which were decided decades before social media existed, still relevant in a world of ever-changing digital platforms, bots, and disinformation campaigns? Digital speech experts Ellen Goodman of Rutgers University Law School and Eugene Volokh of UCLA Law join host Jeffrey Rosen. Some terms you should know for this week: Microtargetting: a marketing strategy that uses people’s data — about what they like, their demographics, and more — to segment them into small groups for content targeting on online platforms. Interoperability: the ability of computer systems or software to exchange and make use of information. In this context, that means that if platforms like Facebook were required to share data with other developers, those developers could create new platforms and there would be more competition in the market. Questions or comments about the podcast? Email us at [email protected].

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 [email protected].

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.

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 [email protected].

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 [email protected].

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 [email protected].

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 [email protected].