We the People

Latest Episodes:

The Modern History of Originalism Aug 03, 2023

Show notes

In this episode, a panel of libertarian and conservative scholars—J. Joel Alicea of the Catholic University of America Columbus School of Law, Anastasia Boden of the Cato Institute, and Sherif Girgis of Notre Dame Law School—explore the different strands of originalism as a constitutional methodology. They also explore the Roberts Court’s application of originalism in recent cases, and how originalism intersects with textualism and other interpretive approaches. Jeffrey Rosen, president and CEO of the National Constitution Center, moderates. This program was originally streamed live on June 28, 2023.

Additional Resources

Moore v. Harper (2023)
New York State Rifle & Pistol Association Inc. v. Bruen (2023)
Grutter v. Bollinger (2002)
District of Columbia v. Heller (2008)
Bostock v. Clayton County (2020)
Counterman v. Colorado (2023)
J. Joel Alicea, “The Moral Authority of Original Meaning,” Notre Dame Law Review (2022)
Joel Alicea, “Originalism and the Rule of the Dead,” National Affairs (2022)
Sherif Girgis, “Living Traditionalism,” N.Y.U. L.Rev (2023)
Sherif Gergis, “Dobb's History and the future of Abortion Laws,” SCOTUSblog (2022)
Anastasia Boden, “Supreme Court's Sidestep Leaves Native Kids Without Answers,” Volokh Conspiracy (June 2023)
Anastasia Boden, “Discourse: Irrational Basis,” Pacific Legal Foundation, (August 2022)

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The Odyssey of Phillis Wheatley Jul 27, 2023

Show notes

David Waldstreicher’s The Odyssey of Phillis Wheatley: A Poet’s Journeys Through American Slavery and Independence offers the fullest account to date of Wheatley’s life and works. Seized in West Africa and forced into slavery as a child, Wheatley became a noted poet at a young age. She is considered the first African American author to publish a book of poetry and had a lasting influence on the Founding generation as well as generations to come. In this episode of We the People, David Waldstreicher of CUNY and Nancy Isenberg of Louisiana State University join Jeffrey Rosen to discuss Wheatley’s life and towering poetic legacy.

Resources:

David Waldstreicher, The Odyssey of Phillis Wheatley: A Poet’s Journeys Through American Slavery and Independence(2023)
Nancy Isenberg, Sex and Citizenship in Antebellum America (1998)
Phillis Wheatley, Letter to Reverend Samuel Occum (1774)

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You can find transcripts for each episode on the podcast pages in our Media Library.

Justice Gorsuch and Native American Law Jul 20, 2023

Show notes

This past term, the Supreme Court handed down two major decisions about Native American law. In Arizona v. Navajo Nation, the Court ruled 5-4 that a treaty did not require the U.S. Government to take affirmative steps to secure water for the Navajo Nation; and in Haaland v. Brackeen, the Court upheld the Indian Child Welfare Act (ICWA). In this episode, Native American law experts Professor Marcia Zug of the University of South Carolina Law School and Timothy Sandefur of the Goldwater Institute join to help unpack these key Native American law cases. They also dive more deeply into one specific member of the Court—Justice Neil Gorsuch—and his unique stance toward how the Constitution applies to issues relating to Native American tribes—from his dissent in Haaland, to his majority opinion in the McGirt v. Oklahoma case from 2020, and more. Host Jeffrey Rosen moderates.

Resources:

Arizona v. Navajo Nation(2023)
Haaland v. Brackeen(2023)
McGirt v. Oklahoma(2020)
Marcia Zug, “ICWA’s Irony”, American Indian Law Review (2021)
Tim Sandefur, Brief Amici Curiae of Goldwater Institute in Support of State of Texas and Brackeen, Haaland v. Brackeen
Adam Liptak, “Justice Neil Gorsuch Is a Committed Defender of Tribal Rights”, The New York Times (June 15, 2023)
John Dossett, “Justice Gorsuch and Federal Indian Law”, American Bar Association (Sept. 1, 2017)

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You can find transcripts for each episode on the podcast pages in our Media Library.

303 Creative and Other Key Cases From SCOTUS’s 2022-23 Term Jul 13, 2023

Show notes

In a 6-3 ruling at the end of the 2022-23 term, the Supreme Court handed down a major First Amendment decision about the intersection of free expression rights and anti-discrimination laws in 303 Creative v. Elenis. The Court held that Colorado could not force a website designer to design a site and create expressive designs that she disagreed with, which included creating a website for same-sex marriages. In this episode, host Jeffrey Rosen is joined by ACLU National Legal Director David Cole and New York Times opinion columnist David French to break down the 303 Creative decision, as well as review the 2022-23 term as a whole, other key decisions from this past year, and where the Court is headed next.

Resources:

303 Creative LLC v. Elenis (2023)
ACLU (David Cole as Counsel of Record), “Brief for Amici Curiae American Civil Liberties Union and American Civil Liberties Union of Colorado in Support of Respondents”, 303 Creative LLC v. Elenis
David Cole, “The Supreme Court Picks its Battles” The New York Review (July 4, 2023)
David Cole, ACLU, “Supreme Court Term in Review: Reconciling Our Losses and Wins” July 6, 2023
David French, “Brief of 15 Family Policy Organizations as Amici Curiae in Support of Petitioners”, 303 Creative LCC v. Elenis
David French, The New York Times “How Christians and Drag Queens Are Defending the First Amendment” (June 30, 2023)
David French, “Harvard Undermined Itself on Affirmative Action,” New York Times (June 29, 2023)
David French, “The Supreme Court Just Helped Save American Democracy from Trumpism,” New York Times (June 27, 2023)

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The Historical Legacy of Thomas Jefferson Jul 06, 2023

Show notes

In a special Independence Day episode, scholars Akhil Amar of Yale Law School and Peter Onuf of the University of Virginia join host Jeffrey Rosen for a discussion on the historical legacy of founding father Thomas Jefferson, America’s third president and principal author of the Declaration of Independence. In a National Constitution Center event a few months ago, Professor Amar announced his intention to “break up with” Thomas Jefferson; and in this episode of We the People, we explore why he’s decided to break up with Jefferson—including his actions and views on slavery—and what aspects of Jefferson's legacy deserve defense. Professors Amar and Onuf also explore the positive and negative aspects of his legacy and influence on the country, as well as recommendations on how to understand and study Jefferson today.

Resources:

Akhil Amar,The Words That Made Us: America’s Constitutional Conversation, 1760-1840(2021)
Peter Onuf, The Mind of Thomas Jefferson (2007)
Peter Onuf and Annette Gordon-Reed, “Most Blessed of the Patriarchs”: Thomas Jefferson and the Empire of the Imagination (2017)
Peter Onuf, Jefferson and the Virginians: Democracy, Constitutions, and Empire (2018)
Should We Break up with the Founders?, We the People episode (April 2023)

Questions or comments about the show? Email us at podcast@constitutioncenter.org.

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You can find transcripts for each episode on the podcast pages in our Media Library.

Live from the Aspen Ideas Festival: 2022-23 Supreme Court Review Jun 30, 2023

Show notes

This week, NCC President and CEO Jeffrey Rosen moderated a panel live from the Aspen Ideas Festival featuring three of America’s leading legal scholars: former deputy solicitor general and Georgetown Law Professor Neal Katyal, Stanford Law Professor Pam Karlan, and Clark Neily of the Cato Institute. During the program, they discussed the major decisions from the Supreme Court’s most recent term, including Allen v. Milligan, in which the Court upheld Section 2 of the Voting Rights Act; Moore v Harper, where the Court rejected the independent state legislature theory; Students for Fair Admissions v. Harvard, in which the Court struck down affirmative action programs in higher education as violating equal protection; and more.

Resources:

Aspen Ideas Festival 2023: Supreme Court Review
Moore v. Harper (2023)
Allen v. Milligan(2023)
Students for Fair Admissions v. Harvard (2023)

Questions or comments about the show? Email us at podcast@constitutioncenter.org.

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You can find transcripts for each episode on the podcast pages in our Media Library.

The Supreme Court Rejects the Independent State Legislature Theory Jun 29, 2023

Show notes

This week, the Supreme Court handed down a major decision relating to elections in America in the Moore v. Harper case. In a 6-3 ruling, the Court rejected the independent state legislature theory, finding that the Elections Clause does not give state legislatures exclusive power over elections, and upholding the power of judicial review in electoral cases, including redistricting decisions. In this episode of We the People, guests Judge Michael Luttig and Professor Evan Bernick join to break down the Moore decision – including why the Court decided to reject the independent state legislature theory; why conservative Justices Thomas, Alito, and Gorsuch dissented; and what this means for the future of judicial review of election laws. Host Jeffrey Rosen moderates.

Resources:

Moore v. Harper (2023)
Judge Michael Luttig, “The Court Is Likely to Reject the Independent State Legislature Theory: And that offers hope for American democracy”, The Atlantic, April 13, 2023
Judge Michael Luttig, “There Is Absolutely Nothing to Support the ‘Independent State Legislature’ Theory”, The Atlantic, October 3, 2022
J. Michael Luttig, et al, Brief for Non-State Respondents, Moore v. Harper
Brief of Professor Evan Bernick in support of respondents in Harper v. Moore
Check out previous We the People episodes on the Moore v. Harper case: Part 1 (March 2022) and Part 2 from (July 2022), and Part 3 (Dec. 2022)

Questions or comments about the show? Email us at podcast@constitutioncenter.org.

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Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

You can find transcripts for each episode on the podcast pages in our Media Library.

Recapping Allen v. Milligan: The Court Upholds Section 2 of the VRA Jun 22, 2023

Show notes

Earlier this month, the Supreme Court handed down a major voting rights decision in the Allen v. Milligan case. In a 5-4 ruling, the Court upheld Section 2 of the Voting Rights Act of 1965 and found that Alabama’s 2022 congressional map likely violated Section 2. This comes as a surprising victory for voting rights and the Thornburg v. Gingles (1986) test after a series of other Supreme Court cases that have narrowed the scope of the Voting Rights Act, including the Brnovich v. DNC case in 2021 and Shelby County v. Holder in 2013. The decision was written by Chief Justice John Roberts and was joined by Justice Brett Kavanaugh along with the liberal justices. In this episode, Jason Torchinsky of Holtzman Vogel and Rick Hasen of UCLA School of Law join host Jeffrey Rosen to break down the Allen decision; discuss why Chief Justice Roberts and Justice Kavanaugh voted with the liberal justices to uphold the Gingles framework; what other conservative justices Thomas, Alito and Gorsuch wrote in dissent; and what this means for redistricting and voting rights in 2024 and beyond.

Resources:

Allen v. Milligan (June 2023)
Jason Torchinsky, Amicus Brief on Behalf of the National Republican Redistricting Trust
Rick Hasen, “John Roberts Throws a Curveball,” NYT (June 8, 2023)
Thornburg v. Gingles (1986)
Section 2 of the Voting Rights Act (1965)

Questions or comments about the show? Email us at podcast@constitutioncenter.org.

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You can find transcripts for each episode on the podcast pages in our Media Library.

Presidents, Prosecutions, and the Rule of Law Jun 15, 2023

Show notes

Last week, former President Donald Trump was indicted by the U.S. government for allegedly retaining, mishandling, and concealing classified documents after he left office. Charged with 37 criminal counts—including many that stem from the Espionage Act—Trump appeared in a Miami federal court on Tuesday and pled not guilty to the charges brought against him. In this episode, legal experts Oona Hathaway of Yale Law School and Jamil Jaffer of the Antonin Scalia Law School at George Mason University join to break down the legal and constitutional significance of the federal indictment. They also discuss potential outcomes of the prosecution, including effects on the upcoming 2024 presidential election; how these charges intersect with other charges being brought against President Trump in other courts including charges brought by the Manhattan district attorney in New York for allegedly falsifying business documents; how other countries around the world deal with heads of state who have been charged with breaking national and international laws; and how the decision to prosecute a president affects rule of law and the future of constitutional democracy.

Resources:

United States v. Donald Trump and Waltine Nauta (indictment)
Espionage Act: 18 U.S.C. § 793(e)
The Presidential Records Act (PRA)
Oona Hathaway, “What Donald Trump and Reality Winner Have in Common” NY Times, June 11, 2023
Oona Hathaway on Classification of Government Documents, Washington Journal Interview, January 24, 2023
Jamil Jaffer, on “The Lead with Jake Tapper”, June 12th, 2023, Complete Transcript
Scott Bomboy, “The question of president immunity back in the spotlight” National Constitution Center, July 24, 2017

Questions or comments about the show? Email us at podcast@constitutioncenter.org.

Continue today’s conversation on Facebook and Twitter using @ConstitutionCtr.

Sign up to receive Constitution Weekly, our email roundup of constitutional news and debate, at bit.ly/constitutionweekly.

You can find transcripts for each episode on the podcast pages in our Media Library.

Artificial Intelligence, Defamation, and New Speech Frontiers Jun 09, 2023

Show notes

As ChatGPT and other generative AI platforms have taken off, they’ve demonstrated exciting possibilities about the potential benefits of artificial intelligence; while at the same time, have raised a myriad of open questions and complexities, from how to regulate the pace of AI’s growth, to whether AI companies can be held liable for any misinformation reported or generated through the platforms. Earlier this week, the first ever AI defamation lawsuit was filed, by a Georgia radio host who claims that ChatGPT falsely accused him of embezzling money. The case presents new and never-before answered legal questions, including what happens if AI reports false and damaging information about a real person? Should that person be able to sue the AI’s creator for defamation? In this episode two leading First Amendment scholars—Eugene Volokh of UCLA Law and Lyrissa Lidsky of the University of Florida Law School—join to explore the emerging legal issues surrounding artificial intelligence and the First Amendment. They discuss whether AI has constitutional rights; who if anyone can be sued when AI makes up or mistakes information; whether artificial intelligence might lead to new doctrines regarding regulation of online speech; and more.

Resources: