The Constitution as a written, amendable document
Across the episodes, guests and host treat the Constitution as a written text whose meaning is meant to remain stable until it is changed through the amendment process rather than by judges. In a discussion of Amy Coney Barrett’s nomination, Randy Barnett defines originalism as the view that the meaning of the Constitution should remain the same until it is properly changed by amendment and not by judges. He contrasts this with living constitutionalism, which he describes as the view that the meaning of a written constitution can and should be updated by judges to reflect changing times and problems — a judicial updating view rather than one in which judges are subject to the Constitution’s fixed meaning Amy Coney Barrett on Trial (2020).
Barnett illustrates the distinction with the Second Amendment. An originalist, he says, would argue that the meaning of the right to keep and bear arms is the same today as when the Second Amendment was ratified and as when the Fourteenth Amendment was ratified, and that among the privileges or immunities of citizens was the individual right to keep and bear arms. A living constitutionalist, by contrast, would treat the Second Amendment as at best a starting point or a single factor, and might conclude that public safety requires strong restrictions on that right today. Barnett also notes that opponents of gun rights who argue the original meaning was a collective rather than individual right are themselves making an originalist argument Amy Coney Barrett on Trial (2020).
Bob Zadek frames the amendment process as the originalist answer to the charge that originalism leaves the country bound by the dead hand of the past. On his summary, if society concludes a constitutional provision is wrong, there is a mechanical way to change it — and the wrong way is to change it by judicial reinterpretation. Barnett agrees and notes the Constitution has been changed 27 times, citing the Fourteenth Amendment’s creation of a federal power to police states and the Progressive Era amendment allowing Congress to tax incomes. He adds that in the Slaughterhouse Cases, decided five years after the Fourteenth Amendment was enacted, judges undid the Privileges or Immunities Clause because they disagreed with the scale of the change, a form of living constitutionalism Amy Coney Barrett on Trial (2020).
Judicial nominations and the Court’s role
The nomination of Neil Gorsuch to the Supreme Court is the subject of a discussion between Bob Zadek and Ilya Shapiro, framed around the Court’s growing influence on major political issues and the vacancy left by Justice Scalia as a pivotal point in the 2016 election Judge Gorsuch on the Hot Seat (2017). The excerpt identifies the participants and topics but does not record the arguments they made about Gorsuch or about the confirmation fight.
Educating the public about the Constitution
Sheldon Gilbert describes the National Constitution Center as having its origin during the Reagan administration, when Congress issued a resolution calling for an organization with the singular purpose of educating the American public about the meaning and importance of the Constitution. He notes the Center is located on Independence Mall, across from Independence Hall, where the Constitution and the Declaration of Independence were signed Revenge of the Pen and the Phone (2018).
Gilbert also describes the Interactive Constitution, available at constitutioncenter.org and as a mobile app, which presents the constitutional text alongside commentary from top scholars on the right and left. He says the scholars begin with areas of agreement and then present matters of debate, giving conservative and liberal perspectives on the same provision. Bob Zadek praises the resource as a rare place to hear both sides of an issue rather than an echo chamber Revenge of the Pen and the Phone (2018).
Constitutional rights and the administrative state
Philip Hamburger argues that the federal government is not content with the power to enact laws limited by rights, and has created an alternative pathway to control through administrative edicts that look like congressional rules but come from agencies rather than elected officials. He describes a further mode of control through conditions: the government distributes money or privileges, such as money to the states for education, and attaches conditions requiring recipients to give up speech rights, due process rights, or the jury right. Hamburger calls this unconstitutional The New Civil Liberties Movement (2021).
Bob Zadek presses Hamburger on the framing of his book Purchasing Submission: Conditions, Power, and Freedom, suggesting that the phrase is too bland and that what is at stake is constitutionally granted rights. Hamburger agrees that the movement could simply be called a movement to defend constitutional freedoms. Zadek also characterizes the federal government as purchasing or persuading individuals and entities to waive constitutional rights, a premise Hamburger accepts The New Civil Liberties Movement (2021).
State constitutions and economic liberty
Jessica Thompson, discussing litigation over a food truck ordinance, argues that if a brick-and-mortar restaurant and a food truck restaurant cannot be distinguished in a way that poses a risk to health and safety, there is no reason to regulate them differently, and that doing so violates the equal protection clause and the right to earn a living Food Truck v. Farmville (2022).
Thompson explains that the claim in the case was brought under the North Carolina Constitution rather than the U.S. Constitution because the Supreme Court has watered down federal constitutional protections for economic liberty, a decline she traces to the New Deal. She notes that the North Carolina Constitution explicitly protects the right to earn the fruit of one’s labor, and that many other state supreme courts have interpreted due process or law-of-the-land clauses in their own constitutions to protect a right to earn an honest living. She connects the North Carolina provision to John Locke, who in 1669 was the author of the Fundamental Constitutions of Carolina, and to the state’s classical liberal tradition Food Truck v. Farmville (2022).
Thompson adds that enforcement under the fruits-of-their-own-labor clause has come in waves and decreased around the 1980s, but that earlier courts rigorously enforced it, striking down laws as arbitrary interference with that right. She cites opinions addressing ordinances that banned massages from masseuses of the opposite sex while permitting massages at the YMCA and barbershops, as well as cases involving photography and dry cleaners, as areas of ordinary occupation that North Carolina courts have protected Food Truck v. Farmville (2022).
Across episodes: originalism, amendment, and evasion
The excerpts show a recurring concern with who determines constitutional meaning, but they do not present a single argument developed across episodes. Barnett supplies the fullest account of originalism and living constitutionalism and of the amendment process as the proper route to change; Hamburger describes administrative conditions as an alternative pathway around constitutional limits; Thompson describes federal economic-liberty protections as watered down since the New Deal and state constitutions as a higher floor. The Gorsuch episode touches the Court’s role without recording its argument, and the National Constitution Center episode concerns public education rather than interpretation. The excerpts show no development between the earlier and later treatments.
What the sources do not cover
The excerpts do not state the outcome of the Gorsuch nomination or confirmation, the holding or amendment at issue in the Slaughterhouse Cases beyond Barnett’s description, or the name of the food truck ordinance or the court hearing the case. They do not give the date of the National Constitution Center’s founding beyond its origin during the Reagan administration, nor the titles of the speakers beyond what the excerpts state. Several sections end mid-sentence or at a section break, and nothing beyond those points is reported here.