What is a Constitutional crisis?

It's a term thrown around quite a bit lately, but what does it actually mean? This is an episode about the basics of the Law of the Land, the three branches of government and what happens when they're don't work the way they're supposed to. Our guide is Aziz Huq, Professor of Law at the University of Chicago. His books include The Rule of Law: A Very Short Introduction, The Collapse of Constitutional Remedies and How to Save a Constitutional Democracy. If you want some extra context for this one, check out these other episodes: Checks and Balances So Long, Chevron What is "originalism"? How Should We Govern the Algorithm? The Fourteenth Amendment CLICK HERE: Visit our website to see all of our episodes, donate to the podcast, sign up for our newsletter, get free educational materials, and more! To see Civics 101 in book form, check out A User's Guide to Democracy: How America Works by Hannah McCarthy and Nick Capodice, featuring illustrations by Tom Toro. Check out our other weekly NHPR podcast, Outside/In - we think you'll love it! Learn more about your ad choices. Visit megaphone.fm/adchoices

Speaker names marked ? are inferred from speaking time and the show’s known hosts — they are not voice-verified.

• 0:00Speaker 00

  We've talked for a long time about approaching a constitutional crisis. We are now in it.

• 0:10Speaker 01

  Revolution within a constitutional crisis.

• 0:14Speaker 00

  It almost certainly would have precipitated a full-blown constitutional crisis.

• 0:18Speaker 02

  And thus, we have a constitutional crisis.

• 0:19Speaker 03

  Yesterday's constitutional crisis brought to you by Trump.

• 0:22Speaker 04

  This is a constitutional crisis that we are in today. Let's call it what it is.

• 0:35Hannah McCarthy?

  Hi there, Nick. How are you?

• 0:38Nick Capodice?

  I am well. And yourself, Hannah?

• 0:41Hannah McCarthy?

  If you are well, I am well.

• 0:43Nick Capodice?

  Ah, si tu salve, salveo. Wait, is it salve, salveo, or is it salway, salwayo?

• 0:50Hannah McCarthy?

  I think that all depends on if you're asking a professor or a priest. But anyway, you know, nicely done remembering your Latin, either way.

• 0:59Nick Capodice?

  Thank you.

• 0:59Hannah McCarthy?

  And actually, this is where I want to start today.

• 1:04Nick Capodice?

  With Latin?

• 1:05Hannah McCarthy?

  With this phrase, with this idea. If you are well, I am well.

• 1:10Nick Capodice?

  Now Hannah, correct me if I'm wrong here, but this is an episode about constitutional crises, is it not? Are we pivoting?

• 1:17Hannah McCarthy?

  No, no, no, we're not pivoting.

• 1:19Nick Capodice?

  We aren't pivoting, everyone. No pivot. Sit tight.

• 1:23Hannah McCarthy?

  And I'm going to get to that phrase, constitutional crisis, constitutional crises. This is Civics 101. I'm Hannah McCarthy.

• 1:29Nick Capodice?

  I'm Nicapadice.

• 1:30Hannah McCarthy?

  And for this episode, I called up someone who has been on the show before, Aziz Huq. Yeah, I'm happy to, you know, do this kind of thing. It's my pleasure. You may remember Aziz from our episodes on the 14th Amendment and on artificial intelligence and the algorithm and law. Aziz is a professor of law at U. Chicago, and his books include How to Save a Constitutional Democracy and The Collapse of Constitutional Remedies.

• 1:57Nick Capodice?

  I am always happy to have Aziz back.

• 2:00Hannah McCarthy?

  You and me both. So I did call Aziz to talk about the phrase constitutional crisis. You know, what is it? What would one mean? Is that even a thing?

• 2:13Nick Capodice?

  And did you get an answer?

• 2:16Hannah McCarthy?

  In a way. But first, Nick, I want to share this.

• 2:22Hannah McCarthy?

  I asked Aziz, after we talked about this phrase constitutional crisis, you know, so in light of this discussion, if people are feeling, you know, perhaps disempowered or cynical, what can they do? Does, you know, voting and participating, for example, make a difference? And Aziz said, absolutely, yes, of course. And then he said this.

• 2:47Speaker 02

  But it's also instrumentally important. I think part of what makes us rounded, full human beings is that we care for each other and that we act on the basis of that care.

• 3:00Hannah McCarthy?

  And this is why I am starting with, if you are well, I am well. Because those words, I think, are not just a pleasantry. I think they are a truth. I think they are what we mean when we say common good.

• 3:28Speaker 02

  I think many people are cynical about politics, clearly. And they're drawn to it about what they see on TV or what they read on Twitter or what have you.

• 3:37Speaker 07

  When your political involvement is all about watching cable television and screaming at the TV or writing on social media, it's actually incredibly disempowering to you.

• 3:45Speaker 00

  Even if Americans don't agree on who to vote for, most say they often feel exhausted just thinking about politics. Contemptious. Nightmarish. Hectic. Anxiety. Challenging. Chaotic. Nerve-wracking. Confusing. Anxiety. Prophetic. Contemptious. To turn young people off to government. And if they do not embrace their role in that process, then I'm not sure what we'll be left with.

• 4:13Speaker 02

  I would think about politics in a different way. I think politics is at the level of an individual person who's a citizen, who's just a resident of a place, is it's the way that you demonstrate care and compassion for your fellow residents and citizens. And it's a way of engaging with them respectfully and as equals by processes of persuasion and advocacy and all the things that people do in ordinary democratic politics.

• 4:44Hannah McCarthy?

  Today, we are going to talk about the constitution and government and politics and democracy. And I think instrumental to all of that is the agreement that the wellness of others is the wellness of oneself. In a democratic system especially, it is about the whole. It is about saying, if you are well, I am well. And that can be true even when you're not getting what you want out of this system. It is right to ensure that others are well. That is how and why any of this works.

• 5:24Speaker 02

  I absolutely think that it is possible that elections have consequences and how people behave make up those consequences, right? What people do to mobilize, how people vote really matter. But I also think that even when it doesn't work, it's also really important. I draw an analogy to parenting. People who are parents understand that they're not able to prevent all the bad things that can happen to their children from happening. Stuff happens, people, kids get hurt, kids make bad decisions. But that doesn't change the fact for most parents that they still try and be good parents and they still try and do the things that help their kid. And the fact that they don't have complete

• 6:09Speaker 02

  control over that doesn't alter, it doesn't mean that they stop doing it. Doesn't mean that they stop acting out their compassion, acting out their bond. In that case, it's a familial bond with, with the child. So I think there's a parallel between parenting and citizenship that I think pushes one to think of the duties of citizenship, the duties of belonging to a place as not being completely dependent upon, do I think these are going to have a material effect? I think you do things because they're the right things to do, not because you know they're going to work.

• 6:45Nick Capodice?

  I really have to say Aziz sure has got me there, Hannah. I mean, I know this as a parent, and I hate saying that phrase, as a father, but I know this as a parent. You don't always, or even often, see how your parenting is actually working. But to be a parent at all means doing it every day. A hundred, a thousand little failures and you never stop. And it sounds like Aziz is saying likewise, being a citizen in this democracy means doing it every day.

• 7:20Hannah McCarthy?

  Even if you feel like other people are not.

• 7:24Speaker 02

  I think a way of thinking about that is if you read coverage of the reasons people have for voting.

• 7:35Speaker 02

  One of the reasons that powerfully emerges is resentment and contempt of others. And that, that, that sort of feelings, I think, has been charted probably better in journalism than it has in opinion polls. For example, Arlie Russell Hoxchild has a marvelous book called Strangers in Their Own Land, which describes people who are motivated by a kind of compound of fearful resignation and anger at those who have seemingly more. And I think that there's a profound human problem.

• 8:13Speaker 02

  Which doesn't have to do with consequences, but has to do with how do you respond as a human being? When you, when it's really hard to see what it is that you've done that warrants those sentiments of anger, resentment, contempt, and even hatred? I think that that human problem is best thought about by looking back at the examples of historical figures who we admire because of their ability to continue operating as decent human beings under conditions in which they were hated.

• 8:53Speaker 07

  New tonight, police arrest a man wanted for three anti-Muslim attacks in Queens. The 23rd annual transgender day of remembrance in honor of all who have lost their lives to violence.

• 9:05Speaker 03

  Police say back in September, they yelled anti-LGBTQ statements at a man. He's facing charges as racial intimidation tonight for her outburst inside of a McDonald's.

• 9:38Hannah McCarthy?

  Okay, so just keep that in mind as we talk about something that a lot of people perhaps are concerned about. I mean, we're talking about the word crisis, right? But what are we even saying when we say constitutional crisis?

• 9:55Speaker 02

  I don't think that we can say what a constitutional crisis is because there's no shared definition in either the law or in a social science discipline, which we might look to for an objective opinion.

• 10:11Nick Capodice?

  So in terms of the civics one on one of it all, we can't tell everyone what it is. Like, we can't define this term because people don't agree about what it is.

• 10:21Hannah McCarthy?

  And because of the reason and the way the phrase constitutional crisis tends to crop up.

• 10:27Nick Capodice?

  Mr. Speaker, we are in a constitutional crisis.

• 10:32Speaker 04

  Crisis is here. And thus, we have a constitutional crisis.

• 10:35Speaker 02

  In daily politics, when you hear talk of a constitutional crisis, generally, the definition at work turns upon the speaker's views about what values they prioritize in government. And therefore, the definition they're using is often one that's not shared by others. Because of that, I tend to avoid the phrase constitutional crisis because I think it is more confusing than it is illuminating.

• 11:15Nick Capodice?

  All right, so people might say, this is a constitutional crisis. But what they really might mean is, I see this as a threat to what I care about. Or simply, I don't like this, you know? And you're throwing constitution, the law of the land, the latticework undergirding democracy, right up next to the word crisis. So basically, you're saying, everybody, we've got a democracy emergency. But what are we actually talking about here?

• 11:48Hannah McCarthy?

  Well, I think that maybe we should avoid even using the word emergency because what does that mean? Aziz tended to say breakdown and strain. And he started me off with what the constitution is ostensibly for, whether people are using it that way and what it means if they're not.

• 12:09Speaker 02

  I think I would distinguish between a couple of different ways in which you could have substantial breakdowns in constitutional law, understood in some sense. Here are two ways of thinking about that that I think are salient now.

• 12:30Speaker 02

  So the first is, you might think that the purpose of the Constitution is not just to create a number of offices or roles that are filled at the level of the nation and that carry out the work of government. It's also to impose constraints upon how those roles can behave and to carve out paths or lanes that they should, rather than should not be in.

• 12:59Nick Capodice?

  Now, this, I do at least think I know, Hannah, that the Constitution establishes the existence of government, the people in charge, and also puts guardrails on that government.

• 13:10Hannah McCarthy?

  Great. So those are two things that the Constitution is for. But if one of those things isn't happening, that could be a breakdown.

• 13:19Speaker 02

  One way of thinking about a situation of substantial constitutional strain is to say, well, many of the mechanisms that kept those actors who were given power through or by the Constitution, all or most of the mechanisms that kept them in their lanes are breaking down. And although the creative part of the Constitution, the bit of the Constitution that elevates people to offices of public power and influence is working, the constraining part of a Constitution, the element that imposes, breaks and channels those people, isn't in good working order.

• 14:03Speaker 02

  So that's one way of thinking about it.

• 14:05Nick Capodice?

  So this makes me think of separation of powers and checks and balances. I feel like that's a pretty well-known government guardrail. One branch might really want to do something, but the other branch checks it, maybe has to approve it or is allowed to say no to it.

• 14:24Hannah McCarthy?

  Yeah. We know the framers were worried about tyranny. They were worried about too much power being in one person or one group of people's hands. So they split it up and they added some rules for keeping it that way. Because, because Nick, this whole system is supposed to be about the group, the whole, people having a say in their governance, people governing themselves.

• 14:49Speaker 02

  Another way of thinking about it is to say, well, one of the important and central goals of the Constitution is self-government. It's to fashion a set of offices that are not just responsible for doing the thing that's beneficial to the nation today, but that are capable over time of being responsive, not just to the voters of today, but to the voters of tomorrow and to the voters of the day after that. You can think of that as democracy

• 15:26Speaker 02

  as a going concern. And another form of substantial constitutional strain occurs if that possibility of democracy as a going concern starts to recede meaningfully from sight, starts to become a theory, but not actually a practice. And we know from looking around the world, other countries' experience of what's come to be called democratic backsliding, that that kind of recession into the twilight of democratic possibility is a real, a real thing that happens even in the absence of elections being called off or some kind of

• 16:11Speaker 02

  very clear signal of democracy ending. I think that's a different kind of constitutional failure.

• 16:21Nick Capodice?

  All right. So we've got these two principles, the guardrails that ensure democracy and people prioritizing self-governance, prioritizing democracy. And if either of those things gets weak or strained, either because people give them up or because people find ways around them, then we're not doing democracy anymore.

• 16:43Hannah McCarthy?

  And by the way, there are people, as Aziz pointed out to me, who do not believe that the point of the- Constitution was to create democracy. So those people might say, well, democracy receding is not a constitutional strain.

• 16:55Nick Capodice?

  Yeah, and I want to avoid the rhetorical exercise here of we're a republic, not a democracy. We have a whole episode on that, if anyone is interested. But you and I, at least, we pretty much operate on the assumption that the point of the Constitution was to create democracy.

• 17:11Hannah McCarthy?

  I guess you could call that a civics 101 philosophy. But I think it's also one that a lot of people agree on, a lot of people think.

• 17:17Nick Capodice?

  Yeah. And real quick, Hannah, it is possible, right? That when someone says, this is a constitutional crisis, they actually do mean the guardrails are breaking down, or democracy is backsliding.

• 17:32Hannah McCarthy?

  It definitely is possible.

• 17:34Nick Capodice?

  All right. So now I've got to know where the courts come in. Like, if I think about people avoiding government guardrails, for example, isn't that when the federal courts are supposed to jump in and say, you cannot do that, we say the Constitution says so? Or, I guess you can do that, we say the Constitution says so?

• 17:56Hannah McCarthy?

  Right, okay, the courts. So you're describing what happens when someone thinks someone else is breaking a federal law or violating the Constitution. They go to the federal courts and they ask a judge to say something about it.

• 18:12Hannah McCarthy?

  And that judge either agrees that it's a violation or says that it isn't. If they say it is, it means the violation has to stop.

• 18:20Nick Capodice?

  And then, of course, that sometimes gets appealed all the way up to the Supreme Court, and the Supreme Court decides what the Constitution really has to say about this.

• 18:28Hannah McCarthy?

  So thinking about the breakdown of guardrails, I basically asked Aziz, okay, so what if that guardrail breaks down? What if the federal courts, what if the Supreme Court says, this is the way it has to be, and the person they're talking to says, nope?

• 18:47Nick Capodice?

  As in, what if someone ignores what a judge or a justice says?

• 18:52Hannah McCarthy?

  Right.

• 18:52Speaker 02

  Probably the best example of government officials not complying with a instruction from the Supreme Court is what happened in the wake of Brown v. Board of Education. Brown in 1954 declares that separate but equal in education is a violation of the Fourteenth Amendment's equal protection clause. For roughly a decade after Brown has decided, there is no meaningful change in the level of school segregation outside of a couple of what are known as the border states, places like Maryland.

• 19:32Speaker 02

  The reason for that absence of change is the officials responsible for managing schools at the local and municipal level, and to some extent at the state level, successfully resisted the instruction in Brown.

• 19:50Nick Capodice?

  Oh, of course, and I know this is super complicated, Hannah. And schools today are still wildly segregated. If not by law, then by policies at the state and local level, and everything from district boundaries to school choice, to income inequality, to a lack of a court overseeing things. And it took something like 50 or 60 years before the last school district was formally desegregated in 2016.

• 20:19Speaker 02

  One of the lessons that one might take from that is the answer to the question of what happens when officials defy the court is that the court loses. The court is not in a position to buck at certain kinds of coordinated resistance by governmental actors.

• 20:39Nick Capodice?

  The court loses? Like, that's the answer? Is that allowed?

• 20:44Hannah McCarthy?

  Well, it's not supposed to happen, but it can. It has. And it is a really big deal. Remember, this system is about guardrails and about agreeing on democracy, agreeing to abide by it and keep the project up. This is all just a theory written down on paper. If we don't do it, then we don't do it.

• 21:10Nick Capodice?

  Okay, did Aziz say anything about the federal courts today? If we're thinking about upholding the Constitution, how all these branches work together or not, how is that branch working right now?

• 21:24Hannah McCarthy?

  We're gonna get to that after a quick break.

• 21:28Hannah McCarthy?

  But before that break, just a little reminder that Nick and I wrote a book. We really love it. We hope you will too. It is called A User's Guide to Democracy: How America Works. I think it's pretty useful. You can find it wherever books are sold.

• 21:55Nick Capodice?

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• 22:35Nick Capodice?

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• 23:15Nick Capodice?

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• 24:00Nick Capodice?

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• 24:24Hannah McCarthy?

  We're back. We're talking about the idea of the Constitution being strained. And Nick, before the break, you asked if Aziz Huck, a UChicago professor of law who has written a lot about the Constitution, had anything to say about the federal courts today. He sure did.

• 24:43Speaker 02

  I don't think we're in a world in which that characterizes the challenge to constitutional stability practice today. I think we're in a world in which it's much more likely that particularly the justices of the Supreme Court take their cues for their rulings, not from text, not from original understanding, not from precedent, not from constitutional principle, but from what their ideological fellow travelers think.

• 25:26Nick Capodice?

  Okay, let me make sure I understand this, Hannah. We're talking about the courts today, specifically the Supreme Court, and the way the Roberts Court interprets the Constitution and hands down rulings based on the Constitution. All part of the project of upholding the guardrails, upholding the law of the land. So what does it mean to base rulings on what your, quote, "ideological fellow travelers", unquote, think instead of, you know, text precedent, principle, et cetera?

• 26:00Hannah McCarthy?

  So here's the example he gave.

• 26:02Speaker 02

  A really good example of this is the attack on administrative agencies that culminated this last year. The core of that attack was an attack on the idea that when a federal administrative agency does something, when it interprets the law, it gets a lot of deference from the federal courts. And this was really a non-issue among any of the justices until about 2015.

• 26:30Nick Capodice?

  Oh, this is Chevron, right?

• 26:31Hannah McCarthy?

  The Chevron deference, yeah. The court did away with that in a case called Loper Bright, which I made an episode about and warmly recommend you listen to if you want a better sense of what Aziz is referencing here. But essentially, for a long, long time, experts in administrative agencies could interpret a statute, and the courts would generally say, you know, okay, we defer to you. You're the expert.

• 26:57Speaker 02

  And in 2015, a couple of the justices start saying, well, hey, we shouldn't do this. We should, we should police what agencies are doing. Well, what changes in 2015? The only thing that changes in 2015 is that in the course of the Obama administration, the RNC platform has changed to include we shouldn't give deference to agencies. And lawyers associated with the Republican Party and that movement start making arguments in that register.

• 27:22Nick Capodice?

  So the Republican National Committee came up with this idea, and then they got it into the legal system. They put the question out there. I mean, that is how cases get before the Supreme Court. People actively try their best to put them there, often after years of planning.

• 27:41Hannah McCarthy?

  Absolutely, that is often how it works. But I think the reason Aziz brought this up is that, for one, this was, as he put it, "a non-issue in the court until it became a part of a party platform." And for another, the actual reasoning, the logic of the majority opinion, is borrowed from the arguments that those lawyers were making, the lawyers associated with the Republican Party.

• 28:07Speaker 02

  Those arguments very, very quickly filter into judicial opinions. I think you can say the same thing about affirmative action. I think you can say the same thing about the way that the religion clauses of the Constitution are understood. I think you can say the same thing about the court's ruling on presidential immunity last year. There are many instances in which even the grounds upon which the Roberts Court majority usually justifies itself, its originalist grounds, do no explanatory work. They're not even in the opinions. And the basis for the opinions can really only be understood in terms of changes in

• 28:49Speaker 02

  the legal culture, but changes in a very particular co-partisan corner of the legal culture.

• 28:55Nick Capodice?

  OK, so a majority of the Roberts Court justices identify as originalists. And we also have an episode about that, which listeners might find helpful right now. And Aziz is saying that in many cases, even their originalism, or what they're calling "originalism," which is supposed to be about the text of the Constitution, does not explain their reasoning.

• 29:20Hannah McCarthy?

  Yeah, later on in an email, Aziz explained to me that he thinks, quote, "It is hard to explain any rulings by the Roberts Court on the basis of standard legal sources, text, history, precedent." He also said that he thinks, quote, "That it is hard to explain those rulings without seeing an effect of political affiliations."

• 29:41Nick Capodice?

  And Aziz, in case anybody out there missed it, is someone who knows the Constitution, text, history, and precedent really well.

• 29:51Hannah McCarthy?

  Really well.

• 29:53Hannah McCarthy?

  So if Aziz finds it hard to explain these rulings without taking politics into account, it seems likely that politics are being taken into account in these rulings.

• 30:05Nick Capodice?

  So if the majority of the Roberts Court is basing its rulings on that partisan corner, as Aziz puts it, what does that mean for the judicial guardrail? They're supposed to be independent. The whole reason justices are allowed to serve for life is to protect them from political pressures so that they can keep the other branches in check.

• 30:27Speaker 02

  So I just don't think we're in a world in which the courts are likely, except for edge cases, to offer much by way of resistance to what's happening in the executive branch or perhaps in Congress.

• 30:41Hannah McCarthy?

  And, look, Nick, I know you know that a Supreme Court of nine perfect angels, who cannot possibly be remotely influenced by politics in any way, is a pretty tall order. But we are talking about a court that particularly stands out for what appears to be partisan reasoning and rulings. So I ask Aziz, you know, is this a new thing? Have we ever seen the Supreme Court behave this way before?

• 31:22Speaker 02

  I think that the best analogy is to the court in the 1870s and 1880s, where around the election of 1876, the national political culture, both on the Democrat and the Republican side, take a hard shift away from the idea that racial reconstruction in the South is worth pennies being spent on it. And in particular, in the wake of a number of economic crises that occur in the 1870s and early 1880s, there is a dramatic shift toward building up a national economy and deepening what is then an emerging industrial state.

• 32:10Speaker 02

  The Supreme Court in this period moves roughly in lockstep with those national, that change in national sentiment and interprets the, what were then recently enacted Reconstruction Amendments, the 13th, the 14th and the 15th Amendment, in ways that dilute or rob them of much of their practical force.

• 32:32Nick Capodice?

  Okay, the Supreme Court looks at these new parts of the Constitution and it looks at what politicians in the US think and want, which is often what voters think and want, and it picks what they want over what the law of the land says.

• 32:46Speaker 02

  So the, the court in the 1870s and early 80s is moving roughly, not entirely, always precisely in lockstep, but roughly in lockstep with a changing national sentiment and throwing the formerly enslaved and their families subject to the system of Jim Crow under the bus. I, I think that there's a parallel between then and now. The parallel, it's all historical parallels, it's imperfect. But it is worth noting that one of the effects of that shift is that whereas in the late 1860s and early 1870s, there were a substantial

• 33:31Speaker 02

  number of African-American representatives in state legislatures and local elected officers across the South, there were two black senators in DC, there were a number of black members of Congress. Essentially, all of that black representation is eliminated by about 1895. And you don't see, for example, black senators for another 60 years in DC. So the court's decision to move away from the project of, of the Reconstruction Amendments was, maybe it was, it would never have worked in the absence of national political support, but

• 34:10Speaker 02

  by moving with that shift in national political support, it's, I think, fairly uncontroversial now to say that the court just gave up on this slice of the Constitution for 60 or 70 years. And, and that part of the Constitution was a dead letter for, let's put this concretely, at least three generations of people living in the South.

• 34:42Nick Capodice?

  So that's what can happen when the Supreme Court picks political whims over the Constitution. Whole groups of people don't get to have the Constitution, or parts of it. Okay Hannah, thinking about the laws and whether they actually happen or don't happen, I know the court can "lose" when government officials defy it. But that's where the executive branch comes in. The court relies on it to enforce the law.

• 35:14Hannah McCarthy?

  Right. The branch with enforcement power. We will talk about the executive branch and its role in all of this after a quick break.

• 35:32Nick Capodice?

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• 36:17Nick Capodice?

  You can even track the progress on a dashboard. And for our listeners, we have an exclusive 60% off an annual Incogni plan. Just go to incogni.com/civics, or use the code CIVICS at checkout. There's a link in the episode description. Remember, they can't harm you if they can't find you.

• 36:44Hannah McCarthy?

  We're back. And before the break, Nick, you asked me about enforcement power. The court declares something constitutional or unconstitutional, legal or not. So what is the role of the executive branch when it comes to enforcing the law?

• 36:59Speaker 02

  I think the constitutional law is of two minds on this topic. And the two minds are not completely reconcilable. On the one hand, the text of the Constitution directs that the president shall take care that the laws be enforced. This imposes, by all originalist and precedential accounts, a weighty obligation on both the president and subordinates to enforce the law in the ways that they are written. On the other hand, the Supreme Court, in a number of cases, and the executive branch at every opportunity they have, underscores the idea of their discretion

• 37:41Speaker 02

  as to whether and when to enforce the law. And when it comes to the discretion of prosecutors and enforcers, the Supreme Court has indulged in every leeway or possible form of permission it can grant. When it comes to the power to issue new regulation, the court has withheld every grace, every leeway that it's possible to grant. So the legal materials on this question point in all sorts of different directions. And I think fairly rare betray the fact

• 38:24Speaker 02

  that the court does not read the Constitution, does not read statutes so as to require the executive to take seriously its obligations under the law. It selectively gives the executive free rein, particularly when it comes to enforcing and particularly when it comes to using coercion, and ties the executive hands when it comes to shielding and protecting people, especially through regulation.

• 38:59Nick Capodice?

  It selectively gives free rein? What does that mean?

• 39:02Speaker 02

  I think if you put those two things together, I think what you get is a little bit different from what particularly, well, actually, what people on either the right or the left stereotypically say. The right stereotypically says we want a small state. The left says we want a larger, more interventionist state. And what you see the court doing is building a state that is incapable of helping people, but profoundly capable of hurting them. I think the court gives every opportunity for the government as prosecutor to decide or not decide which cases to bring, to dial up or down the intensity of the criminal law in particular,

• 39:44Speaker 02

  but also other kinds of law which involve coercive enforcement. On the other hand, when the government is acting as a regulator, exactly the same court says, no, no, no, we don't trust the government. We are really worried about discretion. Well, hold on. Why is it that you trust the government when it acts as a prosecutor, but you don't trust the government when it acts as a regulator? There is no logical, coherent, legal response to that.

• 40:13Nick Capodice?

  So if there's no logical or legal response, how do we answer that question?

• 40:20Speaker 02

  There is a coherent, logical, political response to that, which is we, the court, want a particular kind of state, a state that is strong in some ways, and a state that is weak or even handicapped in other ways. That is a political project, not a constitutional one. It's not even one that the court explicitly embraces, but it's one that's evident across the patterning of the cases.

• 40:44Nick Capodice?

  All right, I'm just full of questions today, Hannah. I hear all of this, and I want to kind of bring it back to the theme, so to speak, of this episode. We are talking about straining the Constitution.

• 40:58Nick Capodice?

  And we're also talking about the people who are supposed to be upholding the Constitution. So if you are someone who wants the Constitution to be the law of the land for the people of the land, for all the people, is there a way to basically make sure the justices are following it, are using it?

• 41:17Speaker 02

  I think that there are two ways of thinking about the process of constitutional change and the role of the court. I think one is, well, what's actually likely to happen? And the second is, well, what could, holding constant the likelihoods in the world, what could happen or what could be done? I do think that we are not in a world in which anything other than cycling over membership in the court is likely to affect the direction the court moves in in the near future. At least in a world in which those political constraints are bracketed, if you imagine that world, I think there's other things that can be done. My own view is that in, for much of American history, up until about the 1890s, there

• 42:02Speaker 02

  were substantial constraints upon the kinds of cases that the Supreme Court could hear that were imposed not by the court itself, saying, here are these cases, we don't like hearing them, for example, with respect to passes and gerrymandering, but that were imposed by Congress. And you can imagine a world in which Congress re-engaged and channeled the work of the court and imposed legislative restrictions upon it in ways that were meaningful.

• 42:30Nick Capodice?

  That's interesting because I sometimes forget that Congress is allowed to regulate the Supreme Court to a degree.

• 42:37Hannah McCarthy?

  Yeah, Congress can limit what is called appellate jurisdiction. Basically, that is the ability to review the decision of lower courts. Most of the cases that the Supreme Court hears are within appellate jurisdiction.

• 42:51Hannah McCarthy?

  Congress can also pass a constitutional amendment, which of course would have to be ratified by three quarters of the states.

• 42:58Speaker 02

  There's also a world in which the Constitution could be amended. And for example, term limits can be imposed upon the justices. New kinds of constraints upon judicial behavior or action could be added. My own personal view is that the design of the Constitution, which channels appointments through the elected branches, through the presidency, which is subject to the Electoral College, and through the Senate, which is wildly malapportioned in relation to population, were mistakes. And that if you look at more recently drafted constitutions in many parts of the world, there are a variety of other appointment mechanisms that successfully insulate, to much greater degrees, judges from politics.

• 43:43Speaker 02

  And we'd be far better off with one of those appointment mechanisms because we'd have much less politicized courts and much less politicized jurisprudence. Again, that's a nice idea, but I'm under no illusions that that kind of proposal is even incrementally plausible under current conditions.

• 44:08Hannah McCarthy?

  All right, Nick. I need to take a beat here and share with you that this episode, despite being about constitutional crisis or strain or breakdown, is one that maybe more than anything made me think about the saucer that cools the tea.

• 44:28Nick Capodice?

  Oh, that one. That perhaps apocryphal thing that George Washington said?

• 44:34Hannah McCarthy?

  Yeah, that supposedly he watched Thomas Jefferson pour his tea into his saucer. And George was like, what are you doing, dude? And Jefferson was like, I'm cooling this hot tea. And Washington said, we pour our legislation into the senatorial saucer to cool it.

• 44:49Nick Capodice?

  Now, I remember this very well, Hannah. But how on earth did this episode make you think of that?

• 44:58Hannah McCarthy?

  Well, because this is some potentially hot stuff, or at least that's kind of how I was thinking of it. And when I gestured to that, you know, when Aziz shared his whole point about citizenship that we talked about earlier, I was really moved by that. I said, basically, you know, some people might feel like they need some light in the darkness right now. And he said this.

• 45:23Speaker 02

  Yeah, I will say, I think that the extent that darkness is largely a product of flagellation by people in the media who are taking a sense of their own feelings and projecting it out, it would creating a kind of vicious circle.

• 45:42Speaker 04

  Many Americans are nervous about rising costs and what it signals about our nation's economy.

• 45:47Speaker 03

  So today, I asked Press Secretary Jen Psaki to explain this winter of discontent.

• 45:52Speaker 02

  At the end of one tough year and at the beginning of another, there's a worry that none of it will bring America what it truly needs. It has been a turbulent year in politics around the world, but perhaps nowhere more than in the United States.

• 46:04Speaker 03

  We know exactly what we're going to be spending the next days and weeks and likely years of our life working on.

• 46:14Speaker 02

  I don't mean to view things through rose-tinted lenses, but I do think it's important to recognize that there are epicycles of emotion in the media, and that includes the NPR level of the media as much as any other level of the media. So I discount a little bit that. Or I think it's worth just taking a breath before taking that too seriously.

• 46:47Nick Capodice?

  Yeah, you wrote about this in our newsletter, and you've also maybe mentioned it six or seven times to me this week.

• 46:55Hannah McCarthy?

  I have been thinking about it constantly, especially in an episode that talks about things that could perhaps make people anxious. I think Aziz plays the saucer that cools the tea in the way that he explains it all. You know, he's careful, he doesn't exaggerate. And what opinions he does share, he bases them on his extensive reading and research in academic and legal work. Terms like constitutional crisis, which don't even have a clear definition, which are pretty likely to be a reflection of their users' emotional state. Those terms have the potential. I mean, they might even be designed

• 47:39Hannah McCarthy?

  to ramp up other people's emotions. So when we, you and me, Nick, talk about this kind of thing, I think we've got to ask ourselves, are we playing the saucer that cools the tea?

• 47:55Nick Capodice?

  I honestly don't know, Hannah. Like, are we supposed to be?

• 48:00Hannah McCarthy?

  Well, OK, so we tell people that this show is here to explain how everything works, to be a resource, to help people, right? To perhaps do what we can to make sure that they are well, at least when it comes to having a sound understanding of the government as it is, as it was supposed to be, as it could be. If our listeners are well, if our citizenry is well and equipped to do their civic duty, then I think we are well, Nick. We are doing what's right. So I say, yes, as journalists whose voices are in many people's ears, we absolutely should be the saucer that cools the tea.

• 48:44Hannah McCarthy?

  We have to try our very best to be.

• 48:47Nick Capodice?

  Well, if that's true, Hannah, what do you have to say about this whole episode? How are you gonna cool that tea?

• 48:57Hannah McCarthy?

  I think I'll say, this is all a really, really long game. Aziz said that we can think about democracy as a going concern, as a thing that is about many years, many generations of people, doing what is right today so that tomorrow, next year, a decade from now, other people still have a system that gives them self-governance. And I think this idea about doing what's right and kind and civic is part of that. You might not be getting something out of it. Do it anyway.

• 49:39Nick Capodice?

  You know, this reminds me, I was talking to one of my friends the other day. She's a city council member. She said, "You've got to avoid two things: apathy and urgency. Don't lose your concern, but don't rush at it either."

• 49:54Hannah McCarthy?

  Take it seriously, but don't get caught up in your anxiety. Yeah. You know, maybe if someone cries, "constitutional crisis," for example, it helps to take a breath. Even if there is a crisis, take a breath. Go out there and be kind and vote and talk to people and keep democracy real. One of the things that strains democracy, one of the things that breaks it down, is that people stop agreeing to do it. They stop upholding it. And you can be one less person being a strain on the system.

• 50:34Nick Capodice?

  And one more person making sure we are well.

• 51:07Hannah McCarthy?

  This episode was produced by me, Hannah McCarthy, with Nick Capodice. Christina Phillips is our senior producer. Rebecca Lavoy is our executive producer. Music in this episode by Mind Server Unlimited, Spring Gang, Dama Beats, Andrea Stalback, Matt Large, Hatami Tsunami, Ikana, Peerless, Ramiro, James LFO, Dejana, and Adeline Paig. You can find the episodes that we referenced in this episode, as well as everything we have ever done, at civics101podcast.org. Civics 101 is a production of NHPR, New Hampshire Public Radio.

• 51:58Hannah McCarthy?

  Did you know that if your spouse goes missing and you don't tell anyone, that's not necessarily a crime? That surprising fact is at the heart of the brand new season of Bear Brook, the critically acclaimed true crime podcast from New Hampshire Public Radio. I'm your host, Jason Moon. In this season, Bear Brook investigates another New Hampshire mystery. A Christmas tree farmer with dementia vanishes. His wife never reports him missing. Can he still be found? Don't miss it. Follow Bear Brook wherever you get your podcasts.