Constitutionally Speaking

In this episode, Jay and Luke discuss procedures in the Senate. After giving a broad overview of how the institution works, they dig deep into the filibuster -- how it works, why it works, and some surprising answers as to whom it benefits.

In this episode of Constitutionally Speaking, Luke and Jay continue their explanation of Congress, this time looking at the party structure in the House of Representatives. After Jay offers some broad considerations about the function and structure of the parties, Luke takes a deep dive into how the majority party (right now, the Democrats) actually work in the House.

In this episode of Constitutionally Speaking, Jay and Luke discuss the role of committees in Congress. Committees are the workhorses of Congress, where the real legislating happens. The guys evaluate different theories of committee organization, and Luke makes the case that their flexibility makes them still useful in the era of omnibus legislating.

Luke interviews Jay about his new book, James Madison: America's First Politician, which is out on November 9th. Jay introduces a new bonus for podcast listeners — autographed book plates! — and the two dive (once again!) into Madison's fascinating political career.

In this week's episode, Jay and Luke examine what makes members of Congress tick. The answer: paranoia. Specifically, the all-abiding fear that they might lose reelection. The congressional drive toward reelection frames their entire career in Congress, especially how they interact with their constituents back home. It determines how they view their districts and how they communicate with it. Those who are good at this job tend to win reelection. Those who don't, don't.

In this final installment of their ‘Historical Congress' series, Luke and Jay discuss various facets of the legislative group since the 1990s.

Jay and Luke discuss Congress's evolution and role after the Watergate scandal. 

Luke and Jay take a look at Congress's confrontation with reform, from the collapse of the Populist movement through the rise of modern American liberalism. As the Civil War generation fades into the past, new cleavages and governing patterns emerge.

Jay and Luke take a look at the long period of congressional dominance in the 19th century, and they explain how congressional supremacy survived everything from the Civil War to civil-service reform.

Jay and Luke discuss Congress and the mid 1800s.

Picking up with Martin Van Buren in Jackson's cabinet, Jay and Luke trace the Little Magicians rise to the vice presidency, his political knife fighting with John C. Calhoun, and his successful introduction of the party convention system. His presidency, bedeviled by the Panic of 1837 at home and trouble abroad with Britain and Mexico, gave rise to the hotly contested election of 1840 that saw the Whigs get organized and the ticket of William Henry Harrison and John Tyler take the White House. We move quickly through Tyler's presidency (after Harrison's death thanks to an inaugural address given in freezing rain) and see Van Buren aim for and nearly win the Democratic Party nomination in 1844. We look at his work forming the Free Soil Party, his increasing hostility to slavery, and his failure to defeat the rise of the slaveocracy within the Democratic Party. In the end, Van Buren remains one of the most consequential figures of his age, and deserves far more attention from the history books than he has received. 

Martin Van Buren, nicknamed the Red Fox of Kinderhook and the Little Magician, was the first American president born after American independence, the first raised in a home where English was not the primary language, and the first true political organizer. A political genius, who created the model of the nineteenth-century political machine, Van Buren is sadly consigned to the second or third tier of American presidencies. Jay and Luke push back against his undue relegation in this episode, the first of two covering Van Buren. They discuss his unique cultural background, his rise through the ranks of Jeffersonian politics, his creation of what became known as the Albany Regency, and his controversial efforts on behalf of James Crawford’s unsuccessful candidacy in 1824. That election saw Van Buren cast out of the center of political life with the return of DeWitt Clinton to the New York governorship and John Quincy Adams’s presidency. Yet in four short years, Van Buren managed to organize the Jacksonian resurgence, as well as his own political revival in New York. We end the episode with Van Buren elected governor of New York and called by Jackson to join his cabinet as Secretary of State.

Like his father in so many ways, JQA was a man of immense talents, a statesman of vast achievements, a brilliant political mind, and -- like his father -- a one-term president. JQA may, still, be the most qualified person ever to reach the presidency. And yet from the outset, his presidency was a failure. His political angling to get the presidency, the so-called “Corrupt Bargain” between Adams and fourth-place finisher Henry Clay, pitched Adams into the presidency via the House of Representatives. Even though this conformed to the formal constitutional method of selection, it offended the political sensibilities of most Americans and limited Adams’s effectiveness. Jay and Luke trace Adams’s policy priorities, his role in advancing what became the American System, and how his administration paved the way for the Jacksonian era.  

The Adams administration saw the rapid, shocking collapse of Federalism as an organized force in American political life. The regnant faction that had forced through ratification, secured America's diplomatic position, and stabilized the public credit, disappeared utterly from the national stage. How did this happen? And if Federalist policies were so essential to American success, where did they go? Jay and Luke trace the ideological and personal divisions within Federalism, which led to its political weakening, the passage and deployment of the Sedition Act, and its complete collapse in the election of 1800. However, they also show how events and John Marshall conspired to preserve a species of Low Federalist ideology that, in the end, Jefferson's Republicans incorporated into their agenda and made their own. 

Foreign policy became a key divide between Federalists and the emerging Jeffersonian Republicans, all the more so as Britain and France escalated a rolling series of continental wars. At the same time, domestic polarization around Hamilton's plan of public finance and its successor policies, contributed to a roiling base of political support for Jefferson's growing opposition. Despite Washington's unanimous reelection to the presidency, the divisions between Federalists and Republicans that would eventually doom the former were already at work.

Welcome to our three-episode miniseries on Federalism. We're taking a deep dive into America's first political party, which governed for the first twelve years under the Constitution, then collapsed entirely. Who were the Federalists? What did they believe? Why were they so dominant and then so completely destroyed? Our first episode takes a big picture look at their ideas, their coalition, the policy challenges they faced, and some of the novel solutions they developed for facing them. We look at Washington, Adams, Hamilton, Marshall, and other lesser-known Federalists and try to understand American politics at the end of the 18th century.

No Founding Father thought more deeply about the presidency than Alexander Hamilton. He was an enthusiastic supporter of a strong chief executive and believed the president had a central and vital role to play in American government, both at home and abroad. Hamilton was also a realist when it came to the nature of politics and, unlike some of his contemporaries, did not shy away from the fact that politics can be a rough business. As a result, Hamilton jumped at the chance to define what impeaching the president would mean in The Federalist. We are still working within the parameters of the impeachment system as he understood it. This talk explains what Hamilton thought and how his ideas can shed light on the recent impeachment. This talk was given at the Down Town Association in New York City, with support from the St. Andrew's Society, the First Families of New York, and the Alexander Hamilton Awareness Society.

In this final episode of the Virginians miniseries, Jay and Luke discuss George Mason, the godfather of Virginia republicanism. Mason was instrumental in writing the Virginia Constitution in 1776. He was the primary author of the Virginia Declaration of Rights, upon which James Madison relied heavily for writing the Bill of Rights. Yet though Mason was a constructive participant at the Constitutional Convention, he eventually opposed the Constitution in strident and bitter terms because he thought it a bad deal for Virginia. Mason thus represents the competing instincts of the Founding Era — embodying a broadminded nationalism but also parochial prejudices. 

In this episode of the Virginians miniseries, Jay and Look look at the life of Patrick Henry. Perhaps the greatest orator in the history of the United States of America, Henry was an essential part of the “revolutionary vanguard” in the 1760s and 1770s, men who were committed to the project of revolution long before the rest of the country embraced the idea. 

In this episode, Jay and Luke discuss John Marshall, perhaps the least appreciated of all the Founding Fathers. A delegate to the Virginia ratifying convention in 1788, Marshall also served briefly as secretary of State before becoming chief justice in 1801. As the head of the Supreme Court, Marshall would secure a legacy for the Federalists long after the party disappeared.

In this episode, Jay and Luke discuss the life and times of James Monroe. A junior partner in the “Virginia Dynasty,” Monroe was the fourth Virginian to be president of the United States — and the only Anti-Federalist ever to rise to the top office. Less an intellectual force than Jefferson or Madison, Monroe is still worth examining, as his career illustrates the evolution of politics in the United States between the 1780s and 1820s.

In this episode, Jay and Luke discuss James Madison, often hailed as the Father of the Constitution. Madison’s life remains a bit of a puzzle, as he transitioned from being a strong Federalist in the 1780s to a leading Republican in the 1790s. Jay and Luke try to make sense of this by outlining Madison’s strong commitment to enduring republican principles.

In this episode, Jay and Luke examine Thomas Jefferson, one of the most puzzling of the Founders. Simultaneously the rhetorician of American equality and a lover of the trappings of aristocracy, Jefferson remains a hard man to pin down. Jay and Luke trace his career from the Declaration of Independence through his founding of the University of Virginia, and try to understand how he aspired to create what he called “an Empire of Liberty.”

In this episode, Jay and Luke look at the life and political career of George Washington, with a particular emphasis on how his experience during the Revolutionary War created in him a strong belief in the need for a strong national government. As president, Washington’s prudence and fairness were essential to securing the constitutional experiment in republican government.

Jay and Luke dig through the twisted, confusing, and occasionally sordid history of campaign finance to tell you where we are, how we got here, and why McCain-Feingold was a terrible law. From Martin Van Buren to Citizens United, get the full picture with this episode of Constitutionally Speaking.

Description: Jay and Luke have a look at how we wound up with the unusual primary system we have today. Ever since John Adams, America's constitutional system for selecting the president has created tensions and frustrations. Indeed, it's not too much to say that America has never had a particularly good method for choosing the president. What did the Framers miss about parties and factions that created this problem? How have attempts to fix it only made it worse? From Martin Van Buren to George McGovern, this wide-ranging episode covers a lot of history with a relevance to today.

Jay and Luke are back, this time discussing the future structure of this very podcast and giving a deep explanation of impeachment.

Jay and Luke dive headfirst into the Louisiana Purchase to explore the battle over the Elastic Clause.

In this episode of Constitutionally Speaking, Jay and Luke discuss the origins of judicial review.

In this episode of Constitutionally Speaking, Jay and Luke discuss the Election of 1800. This contest, pitting Thomas Jefferson against John Adams, is not simply important because it was the first time power transferred from one party to another. It also marked the first time a party organization was integral in bringing about a victory for a candidate.

In this episode of Constitutionally Speaking, Jay and Luke discuss the Virginia and Kentucky Resolutions of 1798.

In this episode of Constitutionally Speaking, Jay and Luke discuss the foreign crisis of 1793 to 1795 and its impact on the development of executive power.

In this special episode, Luke speaks to the First Families and St. Andrew's Society of New York at the Down Town Association. His speech covers Alexander Hamilton's attitude towards the free press.

In this final episode from our Bill of Rights series, Jay and Luke read the Ninth Amendment and Tenth Amendments together, trace the political fight between Federalists and Antifederalists underlying these amendments, and show how they frame the relationship between the people, the states, and the federal government.

This week the guys dig into the Eight Amendment's prohibitions on excessive fines and bail, and on cruel or unusual punishments.

Luke and Jay spend this episode digging into the peculiar American institution of the civil jury: recruiting your fellow citizens to decide disputes over everything from a cow to a global corporation. The civil jury grows in response to concerns about courts of equity: In revolutionary America (and in England), parties could choose whether to have their cases decided according to law or according to a separate equitable judicial system. Americans aren't willing to let the equity system continue without juries, so we wind up with the Seventh Amendment. Yet this raises a question: When does the common law begin or end? As it turns out, the founding generation simply asserts that the English common law applies up to revolution and then lets things run after that. However, always skeptical of the citizenry, the states resist implementing the civil jury, and despite the 14th Amendment, the civil jury has never been incorporated against the states. The guys dig deeply into the ideology and the empirical evidence underpinning hostility to the civil jury, but ultimately side with the civil jury as a virtuous institution reflective of the Founders' devotion to citizen power. 

Jay and Luke take you through the parts of the Sixth Amendment, from speedy and public trials, to the subpoena power. What constitutes an impartial trial and why do we have to have trials in the locality where a crime is committed? The guys connect the Sixth Amendment back to the political and military amendments to outline exactly how Madison imagined using juries to enforce the liberties guaranteed by the early amendments in the Bill of Rights. 

Today, Jay and Luke talk about the second half of the Fifth Amendment, which means digging into the right against self-incrimination, the guarantee of due process of law, and finally the Takings Clause. 

Today, Luke and Jay talk about the first half of the Fifth Amendment. What's so grand about a Grand Jury? Where does it come from and why do we still use it? The guys unpack that and more, looking all the way back to Runnymede and beyond. They also unpack the martial law provisions of the amendment and explain how we think about the law in fundamentally different ways than Madison and his contemporaries did. Finally, they explain how the prohibition on double jeopardy illustrates the intermingling of the common and Roman legal traditions long before Blackstone. Next week, they are going to deal with self-incrimination, due process, or takings.

In this episode, Jay and Luke take a step back before diving into the jury amendments. We have a look at how the jury amendments turn from building institutions and rights around confidence in neighbors to protect one another from injustice, and towards enforcing those rights with neighborliness as a remedy.

In this week's episode, Jay and Luke take a look at the Fourth Amendment.

In this week's episode, Jay and Luke dig into the most successful, and therefore least controversial, of the the ten amendments that make up the Bill of Rights: the prohibition on quartering soldiers. But there's a lot more to the Third Amendment than meets the eye. Most striking to today's reader, it embodies a skepticism of armies with deep historical roots in the 30 Years War, Cromwell's New Model Army, and most immediately the British Occupation of Boston. Beyond historical experience, however, anti-army sentiment came with a rich ideological pedigree, rooted in classical republican ideas of citizenship, humanist, and Enlightenment ideas about the causes and consequences of war, and of course a general hostility to monarchy. Yet in ratifying the Third Amendment, Congress also set a pattern for civil-military relations that survives to this day. Why has the army been a major driver of economic development and social change? The Third Amendment is a major reason. Listen to find out why. 

In this week's episode the guys talk guns. It's the Second Amendment episode, and we're digging in to the right to bear arms: Where did it come from, what did it mean, how was it implemented, and does it still make sense? From James II and the Glorious Revolution to Little Turtle's War in the Ohio Valley, we walk through America's unique and fascinating history with firearms, the right to bear arms's relationship to both ancient and modern concepts of liberty, and why everybody wanted a militia even though they were terrible at actually fighting. 

This week, Jay and Luke dig into the second part of the First Amendment. They show how Congress curtailed Madison's original protections for free speech and a free press, while taking a look at what these freedoms meant as a practical matter to the founding generation. Politics was pretty wild in late eighteenth century. America had a robust publishing culture that mainly churned out pamphlets and broadsheets -- most famously Common Sense in 1776. Heated pamphleting mirrored and fed a robust protest culture. Rioting was common, and wasn't universally frowned upon, meaning the Framers understood “peaceable assembly” in broad terms. Hanging and burning effigies was common; people raised maypoles. There was a lot of fist-fighting and pretty much everybody was drunk. So the point of the freedom to assemble was a way of creating the latent potential for escalation, which the state would seek to avoid by coming to terms with the assembled. Petition, similarly, would allow the people to make a demand of government. The government might not do anything per se, but the government would face political pressure to give an account of itself. The colonists famously petitioned George III and used his indifference to their remonstrances as justification for revolution. 

In this episode, the guys discuss the First Amendment “Religion Clauses”, which prohibit the establishment of a national church and guarantee the right to free exercise of religion. They spend some time looking at Madison’s initial draft of the amendment and how Congress simplified it in the text that was ultimately ratified, leading some contemporary readers to incorrectly see the Founders as drawing a high distinction between religious and political activities. Madison is really pushing two larger ideas. First, he’s effectively outlawing prior restraints by the federal government when it comes to the pulpit and the press. Second, he’s trying to spark pluralism, which he views as generative of greater energy and, as a result, greater creativity. Finally, the guys wrap up breaking down the historical meaning of establishmentarianism and why the free exercise clause was just intuitive to early Americans.

Today, Jay and Luke begin digging into the Bill of Rights, starting with the First Amendment. Most Americans don't realize that what we know as the First Amendment was originally the Third Amendment in Madison's planned version of the Bill of Rights. The original First Amendment, which we call "Amendment A", dealt with the size of Congressional Districts. The original Second Amendment dealt with Congressional pay and, after 202 years, 7 months, and 10 days, was finally ratified as the 27th Amendment.

In this episode, Jay and Luke introduce the principles underpinning the Bill of Rights.

In this episode of Constitutionally Speaking, Jay and Luke discuss the rise of the political parties.

In this episode, Jay and Luke finish their discussion of Jay’s new book, 'The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy. They focus on politics and policy during the Age of Jefferson and beyond.'

In this episode of Constitutionally Speaking, Jay and Luke continue their discussion of Jay’s new book, 'The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy.'

In this episode of Constitutionally Speaking, Jay and Luke discuss Jay’s new book, 'The Price of Greatness: Alexander Hamilton, James Madison, and the Creation of American Oligarchy.'