We the People

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.

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 podcast@constitutioncenter.org.