AEI's Unprecendential https://ricochet.com Thu, 13 Aug 2020 17:26:19 +0000 en-US hourly 1 The Ricochet Audio Network Ricochet.com support@ricochet.com https://cdn.ricochet.com/wp-content/uploads/2020/04/Unprecedential.jpg AEI's Unprecendential https://ricochet.com no episodic 2020 by Ricochet.com 174309703 The Cost of Greatness: Jay Cost on the Bank of the United States The Cost of Greatness: Jay Cost on the Bank of the United States Thu, 06 Aug 2020 23:02:02 +0000
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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 Jay Cost, who has written about Madison's concerns that the Bank and other federal initiatives would foster corruption and oligarchy. (See especially his recent two-part AEI essay series.) Jay and Adam discuss problems inherent in factionalism, private-public partnerships, established churches--and whether Madison would have ever admitted that Hamilton was right about the Bank.

This discussion follows previous Unprecedential episodes on McCulloch v. Maryland (with Gary Schmitt and Nelson Lund) and on Madison's notion of constitutional "liquidation" (with Will Baude).

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789951 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/the-cost-of-greatness-jay-cost-on-the-bank-of-the-united-states/
Judicial Legitimacy Judicial Legitimacy Thu, 16 Jul 2020 19:30:46 +0000
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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 justices on the Court, set merely by statute and always subject to the possibility of amendment, is preserved only by tradition and political restraint.

How, then, does the independent Court maintain its legitimacy? Can unpopular decisions from a body not democratically elected undermine its ability to maintain its proper role in American governance? Michael Greve, author of a recent essay on judicial "legitimacy" and the current Roberts Court, joins Adam and Tal to work through some of these most challenging issues.

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McCulloch v Maryland at 200 McCulloch v Maryland at 200 Thu, 02 Jul 2020 22:30:11 +0000
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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 George Mason University's Antonin Scalia Law School offers his criticisms in "The Destructive Legacy of McCulloch v. Maryland." And finally, Unprecedential's own Adam White defends Chief Justice Marshall's decision with "McCulloch v. Maryland and John Marshall's Judicial Statesmanship."

All three authors join this special episode of Unprecedential to discuss their views on the landmark case that touched on so many fundamental questions of constitutional governance.

 


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Congress’s Proxy Wars Congress’s Proxy Wars Fri, 19 Jun 2020 10:30:47 +0000
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The House of Representatives has resolved to allow members of Congress to vote by proxy. Some members of the House, led by Minority Leader Kevin McCarthy (R-CA) filed a lawsuit challenging the constitutionality of the measure, citing the lack of historical precedent for a measure allowing Representatives to vote from beyond the House.

To discuss the case, and the broader question of how Congress does its constitutional work in times of crisis, we bring you a special two-part episode. Part One features Chuck Cooper and Joel Alicea, two of the lead lawyers arguing against the resolution's constitutionality. In Part Two we welcome several experts on congressional procedure and precedent: Kevin Kosar, Michael Stern, and James Wallner.

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Et tu, Brutus? The Anti-Federalists as Co-founders Et tu, Brutus? The Anti-Federalists as Co-founders Thu, 04 Jun 2020 21:30:26 +0000
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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

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Precedents and the Search for Constitutional Meaning Precedents and the Search for Constitutional Meaning Thu, 21 May 2020 22:10:42 +0000
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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

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760230 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/precedents-and-the-search-for-constitutional-meaning/
After the People Vote, Who Really Decides? After the People Vote, Who Really Decides? Mon, 11 May 2020 20:00:40 +0000
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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.

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756454 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/after-the-people-vote-who-really-decides/
Lead Yourself, Govern Yourself Lead Yourself, Govern Yourself Thu, 07 May 2020 21:30:15 +0000
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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.

 


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755199 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/lead-yourself-govern-yourself/
Reviewing judicial review Reviewing judicial review Thu, 23 Apr 2020 20:00:33 +0000
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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.

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Justice delayed Justice delayed Thu, 16 Apr 2020 20:00:56 +0000
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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.

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752786 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/justice-delayed/
Repugnant Laws Repugnant Laws Wed, 15 Apr 2020 20:00:44 +0000
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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.

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752788 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/repugnant-laws/
Defense Coordinators — How the White House Manages Disaster Defense Coordinators — How the White House Manages Disaster Wed, 15 Apr 2020 18:15:56 +0000
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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.

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752790 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/defense-coordinators-how-the-white-house-manages-disaster/
Commander in Crisis Commander in Crisis Wed, 15 Apr 2020 16:30:08 +0000
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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.

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Virtuous republicans Virtuous republicans Wed, 15 Apr 2020 14:00:02 +0000
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That’s “republican” with a lowercase “r” — the set of structures and characteristics that together form a free people governing themselves through representative bodies and the rule of law.

In a special guest-less episode, Adam expands on a recent essay in which he argues that our republic’s constitutional structure depends upon the character of its public servants and its citizens.

Adam and Tal talk about the definitions and value of civility, and how Americans can see themselves as active participants in shaping the lessons of history. Tal cites the Bible; Adam quotes Ron Burgundy.

Additional Resources:
Gorsuch were the joys
Civility is overrated
The coming constitutional storm

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Approaching the Bench Approaching the Bench Tue, 14 Apr 2020 19:00:57 +0000
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Only a few select lawyers get to argue before the Supreme Court. But even fewer are personally appointed by a Supreme Court Justice to do so. Deepak Gupta is one such attorney, and is no stranger to unusual or uncharted territory. Before launching his own firm in 2012, Deepak helped start the Consumer Financial Protection Bureau as senior counsel for litigation.

After discussing life as a Supreme Court advocate, Adam and Deepak descend into wonkery about regulation, the administrative state, and whether various agency structures might be considered constitutional. Sure, Adam once tried to sue the CFPB into oblivion — but what’s a little constitutional litigation among friends?

The post Approaching the Bench appeared first on American Enterprise Institute - AEI.


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752797 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/approaching-the-bench/
The Constitution as an Institution The Constitution as an Institution Tue, 14 Apr 2020 17:00:34 +0000
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What is an institution? How can we learn to see institutions more clearly in our daily lives? Yuval Levin, director of AEI’s Social, Cultural, and Constitutional Studies department, editor of National Affairs, and author of the new book “A Time to Build” on restoring American institutions, joins the show to discuss the structures of American associational life.

Adam asks him about the challenge of upholding existing institutions and how American citizens should think of themselves as parties to the institution that is the Constitution. Meanwhile, Yuval’s ability to speak in full paragraphs amazes and delights the audience.

The post The Constitution as an Institution appeared first on American Enterprise Institute - AEI.


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752799 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/the-constitution-as-an-institution/
Abdication and Nondelegation Abdication and Nondelegation Tue, 14 Apr 2020 15:00:28 +0000
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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 as we welcome an indefatigable champion of the nondelegation doctrine, George Washington University Law Professor Alan Morrison. Together, he and Adam discuss separation of powers, the judiciary’s role in enforcing that separation, and the timeless problem of vague laws. 

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Court-ing power? Court-ing power? Mon, 13 Apr 2020 22:31:17 +0000
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How strong is the “least dangerous branch?” Moreover, how self-restrained should it be?

In this episode of “Unprecedential,” Adam White interviews Greg Weiner, AEI visiting scholar and associate professor at Assumption College. Professor Weiner’s latest book, “The Political Constitution: The Case Against Judicial Supremacy,” argues that an over-active judiciary undermines the Constitution’s republican qualities. He and Adam discuss judicial restraint, judicial legitimacy, and the Madisonian and Burkean themes of Weiner’s previous books.

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752803 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/court-ing-power/
The ‘soul’ of the presidency The ‘soul’ of the presidency Mon, 13 Apr 2020 15:07:01 +0000
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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.

The post The ‘soul’ of the presidency appeared first on American Enterprise Institute - AEI.


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752805 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/the-soul-of-the-presidency/
The first episode, the first branch The first episode, the first branch Mon, 13 Apr 2020 14:59:31 +0000
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Host and AEI Scholar Adam White talks with Cornell law professor Josh Chafetz about Congress: its limits, its powers, and its purpose

The post The first episode, the first branch appeared first on American Enterprise Institute - AEI.


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752807 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/the-first-episode-the-first-branch/
Welcome to Unprecedential! Welcome to Unprecedential! Mon, 13 Apr 2020 14:43:44 +0000
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Join host Adam White, producer Tal Fortgang, and guests as they examine the constitutional debates surrounding Congress, the President, and, of course, the courts.

The post Welcome to Unprecedential! appeared first on American Enterprise Institute - AEI.


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752809 AEI's Unprecendential 0 No full https://ricochet.com/podcast/aei-unprecendential/welcome-to-unprecedential/