We discuss the slush fund kerfuffle with Professor Smauel Bagenstos, who served as general counsel to the Department of Health and Human Services and has written a forthcoming article on slush funds. One theme is that Trump’s lawyers got a decent way toward giving J6 rioters access to federal funds in a way consistent with the formal law but muffed it at the level of detail. Another is that it’s really silly—and says something bad about some kinds of discourse about this sort of thing—to focus o...
Jun 19, 2026•51 min•Ep. 46
In our second episode on the Callais decision we turn to criticism, though only after doing our best to identify some things in the decision that might be correct. Among our concerns are whether the Court was right in saying that things have changed (for the better) since 1965, whether the opinion was a reasonable application of the Court’s prior decision to refrain from federal judicial regulation of partisan gerrymandering, and whether partisan gerrymandering is defensible in places where part...
Jun 09, 2026•41 min•Ep. 45
In the first of two episodes about the Callais decision we speculate about its immediate impact on the 2026 elections, with Mark trying to minimize that impact and Mike arguing that it’s likely to be significant. Then we provide a detailed explanation of the historical background of the 1965 Voting Rights Act, emphasizing the ways in which it was initially interpreted (a combination of generosity and restrictiveness), how Congress responded, and then how the Court began to narrow its effects. Th...
Jun 03, 2026•39 min•Ep. 44
Today we take up a challenge to our views about the tension between democratic self-governance and the contemporary form of judicial that Mark draws from the scholarship of political scientists including Robert Dahl. Dahl’s challenge, in a shorthand, is that American politicians, speaking for we the people, like that form of judicial review—that it has democratic credentials. Other political scientists identify different periods or “regimes” of dominant majorities, and judicial review fits comfo...
May 15, 2026•1 hr 1 min•Ep. 43
In this episode we get to the heart of Mike’s book, his argument that judicial review as practiced today can’t be justified because justification requires a foundation in good constitutional theories—and none of the theories on offer are good enough. After a minor skirmish over what’s good enough, we take up a feature of Mike’s account that he finds attractive—that deconstitutionalizing everything would open the way for pragmatic compromises on the deep issues of principle that divide us. Mark r...
May 07, 2026•49 min•Ep. 41
We begin our second episode on Mike's new book Why the Constitution Cannot Save Us by discussing different ideas of popular constitutionalism, with Mike restating his concern that popular constitutionalism can misdirect our attention from what really matters--whether policies are good or bad--to unproductive discussions of what the Constitution "really" means and Mark restating his sense that the language of "the Constitution" does motivate some people to act in ways they wouldn't otherwise. The...
Apr 25, 2026•54 min•Ep. 40
We try to sell some books!—Mike’s forthcoming The Constitution Cannot Save Us and Mark’s Who Am I to Judge? Mike describes his book and then we talk about the role of law clerks in writing Supreme Court opinions today because the topic actually gets us to the core disagreement between us, about the failings of constitutional theory and the role of judgment and craft in justifying the power the Court exercises. We don’t resolve our disagreements but maybe listeners will learn something from the d...
Apr 20, 2026•1 hr 12 min•Ep. 39
We take on the decision invalidating President Trump’s tariffs. Mike offers what he calls a democratic defense of a decision that would have, in his terms, preserved the status quo and let the tariffs go into effect, and offers a backup explanation that doing so would be more likely to generate a productive dialogue between Congress and the President possibly resulting in more precise delegations of authority to the President. Mark says that he doesn’t understand the democratic argument and isn’...
Mar 11, 2026•1 hr 13 min•Ep. 38
Pretty much everyone who looks into the matter knows that courts don’t enforce statutory, constitutional, or international law limits on the deployment of US military forces overseas. What are we to make of that fact? That we don’t need judicially enforceable limits on this sort of policy choice to get along reasonably well? That the limits work “behind the scenes” to affect the choices political actors make? Or, perhaps more disturbingly, that legal limits in this area are pretty much like lega...
Feb 19, 2026•57 min•Ep. 37
After telling the semi-salacious story of the attempted assassination of Supreme Court Justice Stephen Field in 1889 we explore the implications of the Supreme Court case that dealt with the attempt for the possibility of state prosecutions of ICE and CBP officers for the killings of Renee Nicole Good and Alex Pretti. That leads us to a discussion of the costs and benefits of using the rhetoric of “unconstitutionality” in political protests against ICE, in which we elaborate on some of the disag...
Feb 07, 2026•53 min•Ep. 36
Could Senator Mark Kelly successfully be prosecuted for sedition? Not under current law as developed by the Supreme Court. Tushnet presses Seidman on his opposition to the Court’s invocation of the Constitution to prevent democratically elected governments from enacting whatever policies the people want—even in connection with speech restrictions. Seidman sticks to his guns and says that, though prosecuting Kelly would be profoundly unwise the Supreme Court shouldn’t block a prosecution by invok...
Jan 16, 2026•1 hr 9 min•Ep. 35
Our guest is David Luban, a distinguished legal philosopher who has written widely about military law and ethics. We use the Trump administration's drone strikes on "drug boats" as the vehicle for talking about the tension--such as it may be--between law and hierarchical authority, for example when ordinary soldiers are instructed that they must disregard unlawful orders. As usual with us, we try to show that the issues are much more complicated than they are typically presented as being--to the...
Dec 19, 2025•1 hr 1 min•Ep. 34
We have a conversation with Genevieve Lakier about the First Amendment and the courts in our current situation. She defends recourse to the courts; we are as usual more skeptical. We go into some aspects of the political economy of major media, emphasizing the problems created by media consolidation and the difficulty of dealing with those problems not merely because of the normative issues we raised in discussing Jimmy Kimmel but also because the political-economic causes of consolidation play ...
Dec 05, 2025•58 min•Ep. 33
After some reflections on how the oral arguments in the tariff case affect our expectations about what the Court might do, we turn to the Court’s pending decision in a case challenging the constitutionality of the key remaining provision of the 1965 Voting Rights Act. We offer what we hope are some more in-depth and analytic comments on the doctrines in play in the case and (as usual!) highlight the ways in which the arguments against the statute are rife with internal tensions. We conclude with...
Nov 23, 2025•40 min•Ep. 32
We continue our speculation about constitutionalism after Trump (after some mundane observations about the 2025 elections), by broadening our lens to include some thoughts about what progressives might do to present appealing visions of an egalitarian and multicultural society that’s part of our heritage. We disagree a bit about the level at which the conversation should be pitched and then turn to some suggestions about “principled compromises” that progressives could offer to appeal to some pe...
Nov 14, 2025•1 hr 2 min•Ep. 31
Our conversation with Richard Re focuses on his Foreword to the Harvard Law Review’s annual Supreme Court Review. The Foreword argues that the Roberts Court today is a conservative version of the Warren Court whose decisions are as supported today or perhaps even better supported today by a political majority as were the Warren Court’s decisions. We suggest that his argument is a domesticated version of the more politically engaged analysis of Supreme Court decisions offered by people associated...
Nov 04, 2025•54 min•Ep. 30
If we manage to extricate ourselves from our current constitutional plight, what might things look like? Or, alternatively, what sorts of constitutionally inflected policies should Democrats offer as part of their political effort to defeat Trumpism? We argue pretty forcefully against what we call “restorationism,” a program that would simply reinstitute the constitutional agenda that MAGA constitutionalism rejects. This episode focuses on the role that skepticism about expertise plays in MAGA c...
Oct 31, 2025•43 min•Ep. 29
We talk about the Jimmy Kimmel episode, a small victory in the fight against Trumpism. We range more widely, though, in identifying no fewer than five groups who have competing First Amendment interests in having Kimmel on or off the airwaves, which makes figuring out what the First Amendment “means” in this setting. We emphasize the interests of broadcasters in choosing what to air and the interests of potential listeners in hearing—and preventing others from hearing—what they want. Any governm...
Oct 17, 2025•31 min•Ep. 28
Why are the birthright citizenship cases both not such a big deal and a big deal? After going through the arguments for the Trump administration’s position in some detail (the arguments against it are so obvious that we don’t spend much time on them), we situate the cases in the administration’s larger policy and ideological agendas: from a policy point of view they aren’t that big a deal, but from an ideological one they might be.
Oct 03, 2025•43 min•Ep. 27
Our conversation with Will Baude covers his ideas about originalism as "our law" and the implications of his position for a constitution--ours, perhaps--that isn't normatively attractive overall.
Sep 27, 2025•51 min•Ep. 26
We pick up after our summer break with a recap of our arguments about constitutional theory. Then we discuss the pending Supreme Court decision about President Trump’s power to impose tariffs, getting into some weeds that most popular commentary avoids, including a lot of detail about the major questions doctrine.
Sep 15, 2025•45 min•Ep. 25
Today we apply our way of thinking about the Constitution—what we’ve been calling constitutional theory—to a topic that isn’t usually discussed in those terms even though it gets a lot of attention: constitutional criminal procedure, focusing on police practices like stop-and-frisk and on the Miranda warnings. As usual our questions are about the connection between judicial (and political and bureaucratic) regulation of police practices and the people’s ability to govern itself. And as usual we ...
Aug 03, 2025•59 min•Ep. 24
This current events episode uses ICE arrests of public officials and protestors as the vehicle for a discussion of jury nullification as a constitutional or political practice. We begin with the story of abolitionist interference with the renditions—a word in the news again—of fugitives from enslavement as authorized by the 1850 Fugitive Slave Act. We use jury nullification to explore the opposition between “law” and “non-law” in political practice. We also discuss more briefly some aspects of t...
Jul 21, 2025•1 hr•Ep. 23
Joseph Fishkin and William Forbath join us to discuss their book The Anti-Oligarchy Constitution. We talk about what their book's title describes, why they think it matters to describe it as a "constitutional" position rather than a "mere" set of policy prescriptions, the importance of historical traditions in thinking about the political use of the word "constitutional," the advantages and disadvantages of using that word as an intensifier, and more (including a digression of the possibility of...
Jul 04, 2025•1 hr 5 min•Ep. 22
Mike gets a chance to lay out his approach. We begin with a longish discussion of the Emancipation Proclamation: Was it merely a “bill of lading”/military measure (Mark) or an extraconstitutional action justified because it was right (Mike)—or both? Mike then develops his approach by distinguishing between simple justice and legal justice and argues that legal justice interferes with the accomplishment of simple justice by trying to shut down disagreements about simple justice requires with an a...
Jun 27, 2025•1 hr 7 min•Ep. 21
The final (!) episode laying out Tushnet’s “craft” account of what judicial review done well looks like. We discuss Tushnet’s argument that good judges use legal reasoning, not direct appeals to justice, to explain and justify what they do. His shorthand is that, just as a well-designed legislative process gives everyone a fair shot at getting their policies adopted and so produces outcomes that those who lose out should and typically do accept, so a well-performed judicial function gives everyo...
Jun 06, 2025•1 hr 15 min•Ep. 20
We have our first guest! We engage in a wide-ranging conversation with Aziz Rana, jumping off from his important book The Constitutional Bind: How Americans Came to Idolize a Document That Fails Them (which we urge you to buy and read). Rana’s book ends before the turn of this century, and our conversation both extends the ideas he develops there (particularly about the connection between the role of the US on the international scene and the US constitutional creed), and takes up his and our thi...
Jun 03, 2025•1 hr 4 min•Ep. 19
Another discussion of current events and constitutional theory. We distinguish between “small bore” and “large bore” challenges to Trump’s agenda—the former dealing with individual injustices and the latter with more comprehensive programs like tariffs—and suggest that courts might do something about the former but are less likely to do anything about the latter. We disagree as usual about the potential political impact of interventions in small bore cases. And we wrap the episode up with a disc...
Apr 21, 2025•51 min•Ep. 18
This current events episode uses the Alien Enemies Act case before Judge Boasberg as our vehicle for examining what constitutional theory can contribute to understanding fast-moving current events. We argue about how nervous we should be about Seidman’s arguments for constitutional disobedience in our current context and about the contributions, if any, constitutional litigation can make to alleviating—or exacerbating—what’s going on. We conclude with a description of what commentators might mea...
Mar 31, 2025•49 min•Ep. 17
With the idea of constitutional "workarounds” as a focal point, we describe the quite large areas of agreement between us about democratic constitutions in general and about the US Constitution specifically and try to clarify where our disagreements lie. The disagreements are mostly about how the US constitutional system functions today and partly about what a good democratic constitution building upon actual US experience would look like.
Mar 25, 2025•1 hr 11 min•Ep. 16
