Unprecedential

Unprecedential goes on summer break: Adam and Elayne look back, and look ahead Jul 22, 2021

After fifteen months and 46 episodes, Unprecedential is packing up and going to the beach. Today’s episode features Adam and Elayne reflecting on their favoriteconversations thus far. They also draw out some general lessons about constitutional governance from the wide-ranging insights brought by guests.

In the meantime, watch out for bonus episodes this summer and, later on, a revamped show with a new format. Stay tuned!

Is America's criminal justice system truly just? Judge Jed Rakoff argues for reform Jul 08, 2021

The Bill of Rights provides a great number of protections for accused and convicted criminals: it promises trial by jury; it prohibits “cruel and unusual” punishment. And in this system, defendants are presumed innocent until proven guilty. Yet few criminal indictments today are actually decided by a full trial; instead, prosecutors have many points of leverage, and defendants have strong incentives to plead guilty. Are these tools and incentives good for constitutional government?

Judge Jed Rakoff, of the U.S. District Court for the Southern District of New York, recently published a book arguing for major reforms: “Why the Innocent Plead Guilty and the Guilty Go Free: And Other Paradoxes of Our Broken Legal System.” On April 29, 2021, he participated in a public web event with Adam, to discuss the limits of forensic science, prosecutors’ advantages over defense during trials, and other ways the criminal justice system is falling short. The recording of their conversation is today's podcast episode.

Fears of a setting sun: Dennis C. Rasmussen on the worries of Washington, Hamilton, Adams, and Jefferson Jun 24, 2021

From today’s vantage point, the Founding era often seems a time churning with decisive hopefulness. The 1789 Constitutional Convention certainly featured vehement debate, as Gary Schmitt and Joseph Bessette noted in our last episode. But optimism appeared to prevail: on the last day of the Convention, Benjamin Franklin concluded that a rising, rather than a setting, sun was the apt metaphor for the fledgling nation.

Yet many of our most revered Founders –Washington, Adams, Jefferson, Hamilton – expressed deep concern for the new nation’s prospects for success. The framers’ worries, often overlooked in scholarship, is the subject of Syracuse University Political Science Professor Dennis Rasmussen’s new book, Fears of a Setting Sun: The Disillusionment of America's Founders. Listen as Adam and Dennis discuss the Founders’ fears – and one framer whose measured confidence was notable exception.

Neither monarch nor magistrate: Joseph M. Bessette and Gary J. Schmitt on crafting a republican executive Jun 10, 2021

When the Constitutional Convention began in 1787, delegates were tasked with creating a government that could simultaneously avoid monarchy’s overreaches and the Articles of Confederation’s ineffectiveness. In other words, the Convention needed to craft a republican executive. The Convention’s arguments over presidential selection, structure, and scope captured both the danger and fragility of executive power – twin concerns still evident in today’s debates about the presidency.

Claremont McKenna College professor of Government Joseph Bessette and frequent guest and AEI scholar Gary Schmitt join Adam on Unprecedential to discuss their recent AEI report, “Crafting a Republican Executive: The Presidency and the Constitutional Convention.”

Defining women’s rights: Erika Bachiochi on the constitutional debate over women’s equality May 27, 2021

Since the 19^th Amendment ratified women’s right to vote in 1920, the quest for women’s equality in America has taken many turns. But the philosophical lineage behind the legal and cultural debates about women’s rights remains visible in today’s disagreements. Intellectual descendants of John Stuart Mill argue that reproductive autonomy best achieves economic equality for women. Heirs of Mary Wollstonecraft’s thought, on the other hand, emphasize the need for laws that require employers to respect men’s and women’s family obligations.

Erika Bachiochi, fellow at the Ethics and Public Policy Center, senior fellow at the Abigail Adams Institute, and author of the forthcoming book The Rights of Women: Reclaiming a Lost Vision, joins Adam to trace and evaluate the evolving debate over the political, legal, and cultural meaning of women’s equality.

The politics of religious freedom: Helen Alvaré on worship in a secular age May 13, 2021

Both historically and constitutionally, the freedom to worship has been a centerpiece of American politics. For much of their history, Americans viewed religious devotion as a linchpin of human experience and deserving of legal protection. But traditional religion has become increasingly suspect in the current cultural landscape, which prizes autonomy and freedom. For those with secular beliefs, faith can seem like a veil for discrimination and intolerance.

To discuss the political dynamics of religion, George Mason University’s Antonin Scalia Law School professor Helen Alvaré joins Adam on Unprecedential. Adam and Professor Alvaré, who has written and edited three books on topics related law and religion, consider religion’s place in government, in politics, and in education.

Politics, faith, and the law: Ryan Anderson on American religion and public policy Apr 29, 2021

The relationship between politics and religion is inevitably fraught. In the American context, various confessions have evaluated America’s political arrangement differently over time, but some themes of the debate remain the same. Does America’s constitutional character favor religious belief? Or does it imply an anthropology of autonomous individualism and tacitly encourage secularism? Should laws move beyond mere proceduralism towards soulcraft, and if so, how can they do so while respecting America’s cultural and religious diversity? In our current moment, is big tech a threat to the First Amendment’s free speech and free exercise guarantees?

Ryan Anderson, President of the Ethics and Public Policy Center and author of When Harry Became Sally: Responding to the Transgender Moment and Truth Overruled: The Future of Marriage and Religious Freedom, joins Adam to discuss how to think about the competing priorities of religion, law, technology, and speech. Ryan’s Public Discourse essay, “America, Liberalism, and Catholicism” and the University of Dallas’ recent JPII Conference also explore the themes discussed in this episode.

Free speech on campus: Stuart Taylor and Nicole Neily on defending dialogue in higher education Apr 15, 2021

Higher education is supposed to provide space for citizens to generate new ideas, consider old ones, and debate about society’s priorities. But these intellectual activities depend upon open channels of dialogue, which face profound challenges from politically sensitive administrators and students driven by activism. What legal protections can students and faculty with diverse views invoke when their right to free speech is flouted? How can dissidents from academia’s sanctioned opinions influence campus culture to accept and cultivate diverse ideas?

In today’s episode, Adam is joined by Stuart Taylor, longtime Supreme Court journalist and co-founder of Princetonians for Free Speech, and Nicole Neily, president of Speech First and Parents Defending Education. They discuss how to defend open dialogue on campus–both legally and culturally.

Political science: Tony Mills on expert judgement and public policy Apr 01, 2021

The pandemic has dramatically emphasized the authority that scientific expertise commands in our political culture. As the CDC has periodically updated its guidelines over the course of the year, states, localities, and businesses adapted their policies in light of the new findings. The mantra of covid-19 has been “follow the science,” as though some rational machine processes new data and computes updated guidelines behind the scenes.

Often overlooked is the central role that human judgment plays in scientific discovery. Tony Mills, AEI resident scholar and expert in science policy, joins Adam to discuss the ways judgment and deliberation guide scientific discovery. They also consider how to weigh scientific knowledge with other forms of expertise relevant to public policy. Tony’s recent paper, “The Role of Judgment and Deliberation in Science-Based Policy,” explores the themes of this episode.

Truth will set you free: Jamie Fly on America's message abroad Mar 18, 2021

As Ivana Stradner and Gary Schmitt noted in Unprecedential’s previous episode, the United States maintains many political, economic, and cultural interests abroad. One of the United States’ most crucial efforts abroad is the dissemination of unflinching, factual reporting in foreign nations without a free press of their own, which is the aim of Radio Free Europe/Radio Liberty. By maintaining editorial independence and objective reporting, even when inconvenient to American interests, RFE/RL showcases the connection between truth and good governance.

RFE/RL’s current president and CEO Jamie Fly joins Adam to discuss the organization’s Cold War history, its continuing work in today’s complex global scene, and RFE/RL’s role in American government.

Global institutions and the U.S. Constitution: Ivana Stradner and Gary Schmitt on the challenges facing America Mar 04, 2021

: After WWII, the United States led the world in building international institutions. But in recent decades America’s polarized politics has led to a bipolar approach to international institutions: years of significant distrust followed by years of significant deference. As the Biden Administration begins to engage international institutions, how should it approach those institutions—and recent efforts by China and Russia to influence them? And how does America’s own constitutional system and politics affect the Administration’s options?

AEI’s Jeane Kirkpatrick Fellow Ivana Stradner and Gary Schmitt, frequent Unprecedential guest and AEI Resident Scholar in Strategic Studies and American Institutions, join Adam to discuss how international law and American constitutionalism impact the United States’ role in global affairs.

Congress’s first hundred days and beyond: Kevin Kosar on legislative prospects for the 117th Congress Feb 18, 2021

Our national legislature is overwhelmed. With a new presidential administration comes new appointments to confirm and a fresh legislative agenda to consider. But Congress’ time and resources are scarce. Antiquated legislative procedures have created perverse partisan incentives and handicapped Congress’ ability to perform its basic functions. What challenges does the First Branch face in the months ahead, and how can Congress overcome its institutional shortcomings?

Kevin Kosar, a resident scholar at AEI and editor of the recent volume Congress Overwhelmed: The Decline in Congressional Capacity and Prospects for Reform, talks with Adam about Congress’ role in the new government, how it can refortify itself, and ways to expand Congress’ institutional capacity and expertise.

The first hundred days: Jonathan Alter on why early success matters for presidents Feb 04, 2021

While presidential terms last four years, the first hundred days define much of posterity’s judgment of presidents. Franklin Roosevelt marked the one hundredth day of his term with a reflection about creating the New Deal, much of which he had assembled and executed in that short period of time. Presidents since have viewed the hundred-day window as an opportunity to establish their political prowess and push signature policies.

Jonathan Alter, acclaimed presidential biographer and political historian whose most recent book, His Very Best: Jimmy Carter, a Life is the first full-length biography of Jimmy Carter, joins Adam to discuss the first hundred days tradition and consider President Biden’s goals for this period. His other books, including The Defining Moment: FDR's Hundred Days and the Triumph of Hope, have examined the significance of presidents’ early accomplishments.

Congress and the Biden Administration: Sarah Binder and Andrew Rudalevige on legislative power Jan 21, 2021

With President Biden’s victory and two Senate seats in Georgia turning blue, Democrats will enjoy unified government control for at least two years. However, unified government does not necessarily mean President Biden can seamlessly push his legislative agenda through Congress. House and Senate Democrats represent diverse interests and priorities that often differ from those of the White House.

Adam is joined by Sarah Binder, a Brookings Institution Senior Fellow and expert in legislative politics, and Andy Rudalevige, Bowdoin College Professor of Government who specializes in interbranch relations and the presidency, discuss how executive and congressional powers stay separate even when unified by party. Listen as they explain consensus building amid bare Senate majorities, presidential appointments and Senate consent, and congressional oversight of the Presidency.

The presidency’s first impression: Stephen Howard Browne on the inauguration of George Washington Jan 07, 2021

Aristotle defines rhetoric as the faculty for discovering the available means of persuasion in any given case. When George Washington was elected to be our first president, he used rhetoric not just in his inaugural address, but throughout the journey from his Mount Vernon home to New York's Federal Hall. He carefully selected his words and actions—even his clothes—to exemplify the virtues of our new Constitution and the statesmanship needed to sustain it.

Stephen Howard Browne, of Pennsylvania State University describes this in a terrific new book, The First Inauguration: George Washington and the Invention of the Republic.He joins Adam on today’s episode of Unprecedential to discuss it.

The president’s opening lines: Jeff Tulis and Gary Schmitt on the inaugural address Dec 22, 2020

The president’s inaugural address exemplifies America’s republican constitution. It serves as the point of connection between the “poetry” of campaigns and the “prose” of governance. It embodies the peaceful transition of power, usually with the outgoing president present for the occasion. It comes weeks after the election’s other candidate concedes the loss, and moments after the new president swears his constitutional oath of office.

To explore the meaning of inaugural addresses in our constitutional order, University of Texas Professor of Government Jeffrey Tulis and AEI Resident Scholar Gary Schmitt join Adam on today’s episode of Unprecedential. Transitions, as Tevi Troy explained in the last episode, begin to translate campaign promises into policy. By contrast, Gary and Jeff note, inaugural addresses connect the president’s oath of office to the new administration’s agenda.

Preparing a presidency: Tevi Troy on presidential transitions Dec 10, 2020

In today’s era of modern governance, presidential transitions seems like a herculean task. The shift from a presidential campaign to a presidency requires preparing the president and his advisors for the responsibility of handling current crises; translating campaign policy proposals into actual legislation and agency actions; and identifying countless high-level officials to administer the government. How can an administration possibly be ready to govern just two and a half months after the election, on Inauguration Day?

Tevi Troy is a presidential historian with firsthand experience in the White House, administrative agencies, and presidential transitions. In this episode of Unprecedential, he joins Adam to discuss the nuts and bolts of transitions. They also discuss the history of presidential transitions, with some especially famous examples. The discussion draws from Tevi’s 2013 article in National Affairs, “Measuring the Drapes,” and his recent Washington Post op-ed, “Five myths about presidential transitions.”

Thanksgiving for (and in) the Constitution: Yuval Levin on gratitude Nov 25, 2020

2020 has shown us that our world has a lot of room for improvement, to say the least. But there’s also a lot to be grateful for. We’ve inherited an extraordinary constitutional system that has withstood the turmoil of 2020. This system’s wise and prudent stewards – such as George Washington, Abraham Lincoln, and Frederick Douglass – demonstrated remarkable gratitude for the American project, even as they sought to reform it. They recognize the “unbought grace of life,” as Edmund Burke put it.

In today’s Thanksgiving episode, Yuval Levin, director of AEI’s Social, Cultural, and Constitutional Studies department and editor of National Affairs, sits down with Adam to discuss the role of gratitude in our political order, which was the subject of Yuval’s 2013 Bradley Prize remarks.

Celebrity Culture and the Supreme Court: Chad Oldfather on the "Inconspicuous" David Souter Nov 12, 2020

Since the days of John Marshall, justices have worn black robes to downplay their individuality. But in recent decades, Supreme Court justices have found themselves increasingly surrounded by a "celebrity culture" befitting politicians—or reality TV stars. If the exemplar of this trend was Justice Ruth Bader Ginsburg (or "RBG" to her fans), then its antithesis was Justice David Souter, who retired quietly from the Court in 2009.

Marquette University Law Professor Chad Oldfather describes this in a new paper: “The Inconspicuous DHS: The Supreme Court, Celebrity Culture, and Justice David H. Souter.” He discussed it with Adam in today's episode—an episode first scheduled before the sad news of Justice Ginsburg's passing.

The Living Presidency: Saikrishna Prakash on “recaging the executive lion” Oct 29, 2020

It’s commonly noted that, in the wake of King George III’s manifold mishaps, America’s framers built a constitutional system designed to constrain the executive. After all, the Founders typically deemed Congress, not the Presidency, the most powerful branch thanks to the preeminence of legislative authority granted in the Constitution. So how is it that today’s executive branch – both the Presidency and the sprawling administrative state – commands such vast governing authority, overshadowing Congress?

University of Virginia Law Professor Sai Prakash, author of The Living Presidency: An Originalist Argument Against Its Ever-Expanding Powers, talks with Adam about the debates and decisions of the Founding that paved the way for the expansive executive office we see today. From early on, America’s unwritten constitution – its mores, civic culture, accumulation of practices – laid the foundation for today’s muscular presidency. To “recage the executive lion,” Sai suggests sensible reforms based on an astute originalist reading of the Constitution.

Court of Public Opinion: Dahlia Lithwick on the press and the Supreme Court Oct 15, 2020

Supreme Court reporters are tasked with the heavy responsibility of telling the Court’s story fairly and accurately. But this job is not as straightforward as it might seem. The Court decides complicated legal issues, and analysts must resist the temptation to treat the Court's work as simply political, or to suggest that the 5-4 rulings are the most important and representative ones.

Dahlia Lithwick has been writing on the Court and the law for two decades, primarily at Slate. In today's episode, she and Adam discuss the press's work of covering the Court in politically and cultural fractious times. They consider Chief Justice Roberts's sometimes surprising moves to minimize the Court's political footprint, and the ways in which justices’ authentic camaraderie creates an institutional culture of spirited but largely amiable disputes that distinguish the Court from the government's political branches. Often these themes are more complicated—and more interesting—than momentary partisan disputes.

*NOTE: This conversation was recorded shortly before the passing of Justice Ginsburg and the nomination of Judge Barrett to succeed her.

The new superpowers: Klon Kitchen on big tech and geopolitics Oct 13, 2020

Technology has always played a role in global affairs, encouraging trade, cooperation, and competition among nations. Today’s tech giants, however, are not just influential bystanders in the international arena. They have become peers to global political powers, sometimes going toe-to-toe with state actors. Digital technology, software engineering, and big data companies often find themselves as the gatekeepers of crucial national security information and technology.

How can the U.S. government best cooperate with tech giants to achieve national security aims and stymie adversaries like China? What strategies have state actors like the U.S., China, and Europe employed to grapple with the rise of big tech? Klon Kitchen joins Adam to consider these themes and discuss his recent essay, “The New Superpowers: How and Why the Tech Industry is Shaping the International System” featured in National Affairs’ special issue, “Big Tech, Big Government: The Challenges of Regulating Internet Platforms.” Klon is the Director for the Heritage Foundation’s Center for Technology Policy. His newsletter, the Kitchen Sync, offers regular updates technology and global affairs.

The Essential Scalia: Judge Jeffrey Sutton and Ed Whelan on Justice Scalia’s jurisprudence Oct 01, 2020

It is difficult to exaggerate Justice Antonin Scalia’s outsized impact on American constitutional law. Originalism and textualism, the interpretive methods he championed throughout his career, are key themes in today’s legal landscape thanks in large part to his elegant and witty defense of their merits.

In this episode of Unprecedential, two former Scalia clerks, Sixth Circuit Judge Jeffrey Sutton and the Ethics and Public Policy Center’s president Ed Whelan, join Adam to talk about the recent compilation of Scalia’s writings they edited, The Essential Scalia: On the Constitution, the Courts, and the Rule of Law.

Judge Sutton and Ed note that equally significant to Justice Scalia’s legal acumen was his amiable character. They discuss with Adam their memories of his generous mentorship of them as clerks, and his affable spirit even to those with whom he dissented vehemently. Justice Scalia’s playful disposition leaps out of his writings, providing his ideas with clarity, vividness, and pleasure uncommon in the legal profession. His faithfulness to originalism, as Judge Sutton and Ed point out, brought him both critics and admirers. But such principled jurisprudence is a sparkling example to all of judging at its very finest.

Supreme Disorder: Ilya Shapiro on the politics of Supreme Court nominations Sep 10, 2020

Americans are all too aware of the partisan warfare involved in recent nominations to the Supreme Court. Heated political frenzy accompanied Brett Kavanaugh, Merrick Garland, and Neil Gorsuch on their path to reaching (or being denied) a seat on the nation’s highest bench. How much further will the Supreme Court nomination battles escalate? How did […]

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Before and after the people vote: John Fortier on the 2020 election Sep 03, 2020

Every presidential election involves at least some uncertainty. But usually the uncertainty is the outcome—not the process itself. In 2020, however, with COVID-19 complicating every aspect of our lives, there is great uncertainty around how the basic processes of casting and counting votes will work. Will polling places be staffed? Will significant expansion of mail-in voting […]

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Defender in Chief: John Yoo on President Trump and executive power Aug 20, 2020

Since the election of Donald Trump, Americans have been sharply divided in their views of his presidency. Has he preserved the Founding Fathers’ vision of an energetic executive? Or has President Trump, in his quest for executive efficiency, sidestepped crucial constitutional constraints? This episode presents John Yoo and Adam White’s conversation from the July 28 […]

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The Cost of Greatness: Jay Cost on the Bank of the United States Aug 06, 2020

When George Washington’s Administration proposed to create a national bank, it exploded divisions among Americans—and, more specifically, among Alexander Hamilton and James Madison—about what our Constitution means. The Bank, and the arguments surrounding it, continue to echo today. To discuss the Bank of the United States, Adam was joined on the podcast by AEI’s own […]

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Judicial legitimacy Jul 16, 2020

The Supreme Court, entrusted by the Constitution with “the judicial power,” is said to wield “neither force, nor will, but merely judgment.” To that end, the Constitution gives judges significant independence from political reprisal. Yet the institution as a whole remains part of our political system. The justices are appointed by politicians. Even the number of […]

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McCulloch v Maryland at 200 Jul 02, 2020

For the 200th anniversary of the Supreme Court’s landmark decision in McCulloch v. Maryland, AEI’s Program on American Citizenship commissioned six distinguished scholars to author essays related to that decision. Gary Schmitt, the editor of the volume, provides an introduction with his essay, “John Marshall and the Politics of McCulloch v. Maryland.” Nelson Lund of […]

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Congress’ proxy wars Jun 19, 2020

Adam and Tal talk with 2 panels about the decision to allow Congress to vote by proxy, how Congress functions in crisis, and the necessity of precedent

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Et tu, Brutus? The Anti-Federalists as cofounders Jun 04, 2020

Adam and Tal talk with Judge Andrew Oldham about why those who opposed the US Constitution in 1787 are founders of the nation on par with its proponents

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Precedents and the search for constitutional meaning May 21, 2020

In Federalist 37, James Madison conceded that even the best lawmakers cannot write perfectly clear laws. “All written laws,” whether the Constitution or in statutes, “are considered as more or less obscure and equivocal, until their meaning be liquidated and ascertained by a series of particular discussions and adjudications”. These discussions happen not just in […]

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After the people vote, who really decides? May 11, 2020

Adam talks to law professor Derek Muller about the value and challenges of the Electoral College, as well as some current challenges to it's existence

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Lead yourself, govern yourself May 07, 2020

US 6th Circuit Judge Ray Kethledge and Adam discuss the benefits we can glean from this time of forced solitude, and how to lead others and govern ourselves

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George Washington, cabinetmaker Apr 30, 2020

Some of America’s most important precedents are the ones that were set outside of the Supreme Court. So much of the form and function of American public life reflects precedents set by the founding generation, by the first Congress and the first president. And among President Washington’s most significant precedents was his establishment of the […]

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Reviewing judicial review Apr 23, 2020

How should US courts exercise the "judicial power" given to them by the Constitution? Princeton's Keith Whittington discusses the concept of judicial review

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Justice delayed Apr 16, 2020

Supreme Court expert (and former lawyer) Amy Howe joins to discuss the role SCOTUS will play in the upcoming election and their response to COVID-19

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Repugnant Laws Apr 15, 2020

Keith Whittington joins Adam to discuss the use of judicial power throughout American history, and the radical consequences it can hold.

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Defense Coordinators — How the White House Manages Disaster Apr 15, 2020

In moments of disaster, the White House is the first to respond. AEI's Kori Schake and Ryan Streeter join Adam to discuss how that response is coordinated.

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Commander in Crisis Apr 15, 2020

When crisis strikes, we turn to the President for leadership. But in a world of uncertainty, which response is right? Guest Tevi Troy shares his thoughts.

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Virtuous republicans Apr 15, 2020

Adam and Tal discuss whether or not the success of our republic's constitutional structure depends on the character of its citizens and servants

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Approaching the Bench Apr 14, 2020

Adam talks to Supreme Court advocate and former CFPB senior counsel Deepak Gupta on the administrative state, regulation, and standing before SCOTUS.

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The Constitution as an Institution Apr 14, 2020

Adam White and guest Yuval Levin broaden our view of what institutions (like the Constitution) are, how they work, and how vital they are to republican citizenship.

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Abdication and Nondelegation Apr 14, 2020

For nearly 100 years the Supreme Court has declined to strike down laws that it believes “delegates” Congress’s legislative power to the Executive Branch. What would a more assertive “nondelegation doctrine” look like? Until then, what limits — if any — does the current nondelegation doctrine place upon Congress? Administrative Law nerds everywhere celebrate […]

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Court-ing power? Apr 13, 2020

Host Adam White is joined by AEI colleage Greg Weiner to discuss the role of the Court both within and in interpreting the Constitution

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The ‘soul’ of the presidency Apr 13, 2020

What is the essence of the American presidency? How does it compare to what the Constitution intended it to be? Adam White and guest Stephen Knott discuss.

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The first episode, the first branch Apr 13, 2020

Host and AEI Scholar Adam White talks with Cornell law professor Josh Chafetz about Congress: its limits, its powers, and its purpose

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Welcome to Unprecedential! Apr 13, 2020

Join host Adam White, producer Tal Fortgang, and guests as they examine the constitutional debates surrounding Congress, the President, and, of course, the courts.

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