Advisory Opinions The Oldest Constitutional Question | Interview: Richard Primus
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Sep 18, 2025 Richard Primus, a law professor and author of The Oldest Constitutional Question, challenges traditional views on congressional powers and their limits. He argues that limits on Congress don’t stem from enumeration but rather from broader constitutional principles. The conversation also dives into the implications of hate speech laws, the impact of emergency dockets on judicial decisions, and the nuances of the Tenth Amendment. Primus brings historical context to federal powers, making a compelling case for a reconsideration of how we view federalism.
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Hate Speech Remains Protected From Prosecution
- Hosts stress that hate speech is protected from government prosecution; only incitement or unprotected categories like defamation are punishable.
- They warn that government hate-speech laws risk empowering political actors to define forbidden speech arbitrarily.
Social Censure vs Government Punishment
- David and Sarah distinguish social censure from government punishment and debate its role in policing speech norms.
- They argue employers should default to tolerance but can fire for vile conduct; social-media oversharing fuels cancelation cycles.
Interim Docket Magnifies Ideological Splits
- The emergency/interim docket shows more ideologically split voting than the merits docket because decisions often rely on priors with less briefing.
- Sarah and David note that case selection by administrations and case types (executive authority vs policy) shape those patterns.