Unprecedential

When we talk about “the Founders” of the United States, we often think of the 55 men of the Constitutional Convention in Philadelphia, 1787. We might even think of the great defenders of the Constitution that emerged from the Convention, such as Alexander Hamilton, James Madison, and John Jay. But to understand the Constitutional republic we have, we must listen not just to its supporters but its detractors – known as the Anti-Federalists – lest we run the risk of playing judge while considering only one party’s brief.

Judge Andrew Oldham of the US Court of Appeals for the 5th Circuit is accustomed to giving both sides their due, and as such set out to explore the argument of the Anti-Federalists, in essays collected by the late Herbert Storing in ‘The Complete Anti-Federalist’. Why were they so worried about the Executive Branch? What can they tell us about today’s administrative state? And how should their arguments inform current debates about the Constitution’s original public meaning? Judge Oldham joins Unprecedential to cover all this and more.

Links: – Judge Oldham’s article, “The Anti-Federalists: Past as Prologue” – Assorted works of Herbert Storing

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 courts but in the course of actual administration. 

So, when a law’s original meaning is not clear, its ambiguities can be resolved — “liquidated” — by the people themselves, through the settlement of precedents set by judges and statesmen alike. To discuss this underappreciated part of republican self-government, and its relation to more familiar notions of judicial stare decisis, Adam welcomes William Baude of the University of Chicago, author of two recent articles on these subjects.

Additional Resources: – Precedent and Discretion – Constitutional Liquidation

Today the Electoral College operates mostly like an algorithm, automatically converting popular votes into electoral ones. But the Constitution originally created the Electoral College to be a fourth institution in federal government. Elected and assembled every four years, this body would deliberate and elect the next president of the United States. Nearly 30 years ago, AEI published a collection of essays on the College: “After the People Vote,” edited by the late Walter Berns. 

For years, some activists have called for the Electoral College to be abolished and replaced with a single national popular vote, while others ask how much power the states or Congress can assert over the votes of the College’s individual members. The latter question now arrives at the Supreme Court, in a pair of cases to be argued on May 13. Those cases center on questions of the respective powers of Congress, the states, and the electors themselves. To discuss them, Unprecedential welcomes Professor Derek Muller, an expert on the law of American democracy.

Many Americans have been thrust into a period of unprecedented solitude. That can be daunting and lonely — but solitude can also be an opportunity for working on inner strength, balance, and fortitude. It can even be a time to write your most challenging opinions for the US Court of Appeals for the 6th Circuit.

That is, if you are Judge Ray Kethledge, who joins the podcast to discuss the lessons of his 2017 book, Lead Yourself First. He and Adam discuss how we can learn from models of thoughtful solitude, from Helmand Province, Afghanistan, to Lake Huron, Michigan and from Lincoln to Lawrence of Arabia. They also cover, you know, judge stuff: Whether statutes are ambiguous as they seem, the real meaning of the rule of law, and whether FA Hayek was right about the 9th Amendment.

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 cabinet as the president’s advisory council.

Dr. Lindsay Chervinsky describes this in her terrific new book, “The Cabinet: George Washington and the Creation of an American Institution.” Dr. Chervinsky, a historian at the White House Historical Association, joins Adam to discuss how the Washington administration created the model for future administrations, how the responsibilities and powers of cabinet officials changed through American history, and how those official mediated between the branches of the federal government. Dr. Chervinsky also gives an unsurprising answer when asked which president’s cabinet was worst.

Article III of the US Constitution vests “the judicial power” in the Supreme Court and the lower federal courts. How that power should be exercised — and when it has been exercised throughout our country’s history — are questions still fiercely debated today. May courts legitimately exercise “judicial review,” the power to say conclusively what the law is? Or is this notion actually foreign to what the framers of the Constitution had in mind for the judiciary?

Keith Whittington of Princeton University, author of “Repugnant Laws,” a recent book on the surprisingly misunderstood history of judicial review, joins the show to explain what “the Judicial power” has meant to Americans from the founding to the present. He and Adam then venture far afield in legal nerdery while Tal sits in the corner and quietly grits his teeth, remembering the subpar grade Whittington gave his senior thesis.

The Supreme Court was set to have a busy spring, with a full docket of cases and a schedule packed with oral arguments. But like so many American institutions, even the Highest Court in the Land had to pause business-as-usual thanks to the COVID-19 pandemic. So what happens now? 

Joining us to discuss these questions, and the Court’s role in the upcoming election season, is Amy Howe, a cofounder of SCOTUSblog and one of the leading reporters covering the Supreme Court (and a former Supreme Court lawyer herself). She helps us try to understand how the Supreme Court and its Justices may adapt — or not — to our nearly unprecedented circumstances. Is this going to change the operations of the Court forever? That’s up for debate; you be the judge.

How often does the Supreme Court declare laws unconstitutional? What does this say about the Court’s place in American politics? These are timeless questions, of course, but Princeton University’s Keith Whittington sheds significant new light on them in his latest book. Drawing from Whittington’s comprehensive database of cases, Repugnant Laws: Judicial Review of Acts of Congress from the Founding to the Present examines how judges have used their power throughout American history, and it upends conventional wisdom in the process. 

Enjoy this special episode of Unprecedential, featuring Whittington’s presentation of his book at AEI, his conversation with Adam White, and some sharp audience Q&A.

When disaster strikes — a public health crisis, natural disaster, or terrorist attack — the executive branch is the first to respond. Our Constitution empowers the president to respond quickly to threats, allowing the other parts of government to get their footing. But crafting an energetic response is no easy task when it requires not just coordinating the White House’s own team, but also the rest of the executive branch. 

Two of AEI’s research directors know this firsthand. Kori Schake, AEI’s director of Foreign and Defense Policy, served on the White House’s National Security Council and in the State Department after 9/11; Ryan Streeter, AEI’s director of Domestic Policy, served on the White House’s Domestic Policy Council during Hurricane Katrina. They join Adam to discuss some of the near-impossible challenges of coordinating responses to disaster: How are responsibilities delegated? What kind of legal considerations come into play? How does the federal government remain cognizant of state needs during national emergencies? And much more.

When crisis engulfs the nation, how should the federal government — especially the president — respond? Of course, when crisis strikes, the best response is for everyone — government and citizens alike — to have prepared in advance. But when “unknown knowns” suddenly appear and shake our sense of normalcy, we look to the president and his administration to respond. 

Our guest, Tevi Troy, knows this well. He has served at the highest levels of government in the White House and the US Department of Health and Human Services, and has studied the White House from a historian’s perspective — most recently in “Fight House,” his account of White House rivalries. Perhaps most relevantly, though, is “Shall We Wake the President?” (2016), his account of presidential crisis management through American history. Seeing as he predicted the coronavirus pandemic in that 2016 book, he seemed to be the right oracle to discuss disaster management within and across the various arms of government.