When the Constitution Breaks: A Conversation with Adam Liptak
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What is the constitutional “gap” the hosts introduce at the start of the episode?
Welcome to How Our Constitution Works and Why It Doesn't. I'm your host, William Cooper, and with me as always my co-host Edward Larson. Ed and I could not be happier to have as our guest today writer that we've been devouring for decades. with pleasure and and lots of edification. Adam Liptak, the Chief Legal Affairs Reporter for the New York Times. Adam, thank you for coming on.
It's great to be here. Thank you for having me.
So we like to get the the show started with Ed framing things for discussion rooted in the context of the show and of course his deep historical understanding. So Ed, why don't you take the mic and get us going?
All right. I don't want to take it away from Adam though. Adam, let me add my my gracious thanks and my delight. I I have been reading you for a long time. And Clara, I read one of your articles today and enjoyed it. Quoted parts to my wife. So thank you very much. As Will suggested, and our title of our podcast suggests is How our constitution works and why it doesn't, uh, is sort of like the first parts come sort of like a civics lesson. I really I often had lunch with Justice Sander Day O'Connor, especially after she shut down from the court. I was a huge fan and she cared enormously about civic education. Justice Bryor does too. and the importance of people understanding our constitution and she doesn't think people do and I agree with it.
And so we want to explain the Constitution sort of like uh what I would say when I was growing up in rural Ohio. a good eighth grade civics class, which I don't know if they have any more. But the second part is our concern of okay, this is how it's supposed to work. And why doesn't it? Why are so many people, the polls suggest. think Congress doesn't work, Supreme Court doesn't work. The constitution doesn't work and That could be worked we're thinking, and we're exploring it with people like you who know so much more than we do about this. And we've had some incredible guests. And and sometimes we wing it on our own. And I mean partly I think it's you know, simply because the Constitution is very old.
It's, you know, almost two hundred and fifty years old. Two hundred and si and it was written for a a small isolated group of thirteen colonies that had less people than the average state does now, less than Arkansas or Oklahoma. And things have changed enormously since then. We weren't a w world power. We but, you know, we love the vision based on John Adams' thoughts in government and then the working of these delegates trying to set up checks and balances that would work. So we wonder why it doesn't. We c are playing with different ideas. The framers didn't envision political parties, they didn't envision modern corporations, those just didn't exist. Independent agencies. But I I w with your expertise on the Supreme Court, given what has happened over the past week.
We have what we think. are two textbook cases of how the Constitution works. The Constitution clearly gives Congress power over all property owned by the federal government. It's explicit. They discussed it. They knew what they were doing. And here the Supreme Court says because of standing issues, Nobody's going to end up being able to challenge whether the president can build a new ballroom. Another example is with mail-in votings. Clearly, the Constitution gives power to the states over voting, all voting in state elections, but even in congressional elections, unless Congress intervenes. And yet the president runs an end run with with restricting mail-in voting, which I believe Congress could restrict mail-in voting.
They could say you can't do it. But Congress hasn't. They didn't pass the same act. And yet it's when it comes to the Supreme Court, the Supreme Court mealy mouse sort of says, well, it's not quite ripe yet. And then the time could sort of move on and the new activities, the ballroom gets built or the voting gets selected out by some machine that the the and the courts, even though the constitution is clear. So I see that as an example of why
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