Unprecedential

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 favorite conversations 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!

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. 

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.

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.”

Since the 19th 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. 

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.

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. 

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. 

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.

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.