We the People

Three judges from the Third Circuit Court of Appeals joined host Jeffrey Rosen for a live panel held on September 17, Constitution Day, the anniversary of the signing of the Constitution. They shared an inside look into some of their rulings that then became blockbuster Supreme Court cases. Judge Cheryl Ann Krause discussed her ruling in the case involving a cheerleader who was punished for a Snapchat, Mahanoy Area School District v. B.L. Judge Stephanos Bibas spoke on his decision in one of the major Trump campaign challenges to the 2020 election results, Donald Trump for President, Inc v. Secretary Commonwealth of Pennsylvania. And Judge Marjorie Rendell shared insight into her decision in Fulton v. City of Philadelphia, the case spurred by the city barring Catholic Social Services (CSS) from placing children in foster homes because CSS refused to allow same-sex couples to be foster parents. The judges also reflected on their work more broadly, their efforts to find compromise among colleagues with differing opinions, and their important roles in American government.Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution.Questions or comments about the show? Email us at podcast@constitutioncenter.org.

September 17 is Constitution Day—the anniversary of the framers signing the Constitution in 1787. This week’s episode dives into what happened after the Constitution was signed—when it had to be approved by “we the people,” a process known as ratification—and the arguments made on behalf of the Constitution. A major collection of those arguments came in the form of a series of essays, today often referred to as The Federalist Papers, which were written by Alexander Hamilton, James Madison, and John Jay using the pen name Publius and published initially in newspapers in New York. Guests Judge Gregory Maggs, author of the article “A Concise Guide to The Federalist Papers as a Source of the Original Meaning of the United States Constitution,” and Colleen Sheehan, professor and co-editor of The Cambridge Companion to The Federalist, shed light on the questions: What do The Federalist Papers say? What did their writers set out to achieve achieve by writing them? How do they explain the ideas behind the Constitution’s structure and design—and where did those ideas come from? And why is it important to read The Federalist Papers today?Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution.Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Last week, the Supreme Court declined to temporarily halt, and thus allowed to go into effect, a new Texas law that bans abortion after six weeks of pregnancy—effectively banning most abortions in the state. The law is unusual in that, instead of enacting criminal penalties as a method of enforcement, it enables others to sue anyone who violates the law for money damages. On this week’s episode, host Jeffrey Rosen is joined by constitutional law scholars Kate Shaw and Sarah Isgur to explain what exactly the Texas law says, the motivations and legal theory behind it, and why it was structured the way it was specifically in order to be hard to challenge—given that it directly violates constitutional precedents like Roe v. Wade and Planned Parenthood v. Casey, which protect the constitutional right to abortion pre-viability (around 22-24 weeks). Shaw and Isgur also consider whether the type of enforcement mechanism that makes this Texas law unique might be replicated in other states for abortion restrictions or gun control. They also unpack the Supreme Court’s brief ruling declining to intervene at this time, its reasoning, and how it compares to other recent emergency rulings like the COVID-19 cases and the eviction moratorium. Kate Shaw is a professor at Cardozo Law and a co-host of the Supreme Court podcast Strict Scrutiny. Sarah Isgur is staff writer at The Dispatch and co-host of the legal podcast Advisory Opinions.This episode was recorded just before the Justice Department announced that it will sue the state of Texas over this law—although our guests provide some pre-emptive speculation on what such a lawsuit may look like.

Legal battles over masks in schools are being fought across the country—in states including Arkansas, California, Florida, Kentucky, Michigan, Oklahoma, Nevada and Texas—and the U.S. Department of Education recently announced a civil rights investigation into mask mandate bans in several states. This week’s episode explores lawsuits brought against governors who took action to try to ban  local mask mandates in schools, as well as challenges to state school mask mandates brought by people who say their individual rights were violated. We also address broader questions raised by this debate regarding the balance of power in America, and whether the Supreme Court might intervene. Host Jeffrey Rosen was joined by Charles C. W. Cooke, senior writer for National Review, and professor Jennifer Selin of the University of Missouri. Additional resources and transcript available in our Media Library at constitutioncenter.org/constitution.Questions or comments about the show? Email us at podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.