Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like.
The Ezra Klein Show5 Heinä 2022

Liberals Need a Clearer Vision of the Constitution. Here’s What It Could Look Like.

For decades now, the conservative legal movement has been on a mission to remake this nation’s laws from the bench. And it’s working. On Friday we released an episode with the legal scholar Kate Shaw that walked through case after case showing how conservative Supreme Court majorities have lurched this country’s laws to the right on guns, voting, gerrymandering, regulatory authority, unions, campaign finance and more in the past 20 years. And if the Dobbs majority is any indication, this rightward shift is just getting started.

But this conservative legal revolution is only half of the story. The other half is just as important: the collapse of liberal constitutional thinking. Liberals have “lost anything that would animate a positive theory of what the Constitution should be,” says the legal scholar Larry Kramer. “And so they’ve been left with a kind of potpourri of leftover things from the periods when liberals were ascendant in the ’60s and ’70s.”

Kramer is a former dean of Stanford Law School, the current president of the William and Flora Hewlett Foundation and the author of“The People Themselves: Popular Constitutionalism and Judicial Review.” And according to him, it hasn’t always been this way. For most of American history, politicians, from Jefferson to Lincoln to Franklin Roosevelt, believed that constitutional interpretation was inextricable from politics. And they put forward distinct visions of what the Constitution meant and the kind of country it was written to build. But then, in response to the progressive victories of the Warren court, liberals began to embrace the doctrine of judicial supremacy: the view that the final authority on the Constitution rests with the courts. This has resulted in both the conservative legal victories of the past few decades and liberals’ muddled, weak response.

So this is a conversation about the collapse of liberal constitutional politics: why it happened, what we can learn from it and what a renewed, progressive vision of the Constitution could look like. We also discuss why the founders weren’t actually originalists at all, whether liberal constitutional thinking has been captured by the legal profession, what a liberal alternative to originalism could consist of, why changing the size of the court (despite its controversies) has been an important tool for staving off constitutional crisis, the case for an “anti-oligarchy Constitution,” the merits of imposing supermajority requirements on court decisions and nominations, why Kramer views Roosevelt’s infamous court-packing effort as a major success and more.

Mentioned:

Larry Kramer’s testimony at the Presidential Commission on the Supreme Court of the United States

Judicial Supremacy and the End of Judicial Restraint” by Larry D. Kramer

Marbury and the Retreat from Judicial Supremacy” by Larry D. Kramer

The Judicial Tug of War” by Adam Bonica and Maya Sen

Book recommendations:

The Anti-Oligarchy Constitution by Joseph Fishkin and William E. Forbath

The Second Creation by Jonathan Gienapp

When We Cease to Understand the World by Benjamín Labatut

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Thoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.

You can find transcripts (posted midday) and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast, and you can find Ezra on Twitter @ezraklein. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.

“The Ezra Klein Show” is produced by Annie Galvin and Rogé Karma; fact-checking by Michelle Harris, Mary Marge Locker, Kate Sinclair and Irene Noguchi; original music and mixing by Isaac Jones; audience strategy by Shannon Busta. Our executive producer is Irene Noguchi. Special thanks to Kristin Lin and Kristina Samulewski.

Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

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Ta-Nehisi Coates on Bridging Gaps vs. Drawing Lines

Ta-Nehisi Coates on Bridging Gaps vs. Drawing Lines

The writer Ta-Nehisi Coates was harshly critical of my response to Charlie Kirk’s assassination. In an article in Vanity Fair, he suggested I was whitewashing Kirk’s legacy, comparing it to the whitewashing of the Southern cause after the Civil War.So I wanted to have Coates on the show to talk out our disagreement, as well as some deeper questions that I think exist underneath it about the work of politics.What should the left do about the fact that so many Americans share Kirk’s views? What kinds of disagreements should we try to bridge? When is that work moral and necessary, and when is it a betrayal?This episode contains strong language.Mentioned:“Charlie Kirk, Redeemed: A Political Class Finds Its Lost Cause” by Ta-Nehisi CoatesBetween the World and Me by Ta-Nehisi Coates“My President Was Black” by Ta-Nehisi CoatesBook Recommendations:The Brothers by Stephen KinzerRace and Reunion by David W. BlightThe Sirens’ Call by Chris HayesThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Rollin Hu. Fact-checking by Michelle Harris, with Mary Marge Locker. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Kristin Lin, Jack McCordick, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. Transcript editing by Sarah Murphy. The director of New York Times Opinion Audio is Annie-Rose Strasser. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

28 Syys 1h 8min

Trump Is Building the Blue Scare

Trump Is Building the Blue Scare

This is McCarthyism 2.0. Since Charlie Kirk’s assassination, the Trump administration has been speed-running an attack on the “radical left.” And the tactics it has been using are darkly reminiscent of the Red Scare of the 1940s and ’50s. So what can that period teach us about the current moment and what the Trump administration might do next? How far could this go? Corey Robin is a political theorist at Brooklyn College. He’s an expert on McCarthyism and the author of the book “The Reactionary Mind,” one of the most insightful books you can read on the Trumpist right. In this conversation, he walks through what happened in the first and second Red Scares and what made him start worrying about the Trump administration.This episode contains strong language.Mentioned:Red Scare by Clay Risen“How Democrats Drove Silicon Valley Into Trump’s Arms” by Ross DouthatThe Furies by Arno J. MayerBook Recommendations:On the Slaughter by Hayim Nahman BialikNaming Names by Victor S. NavaskyCitizen Marx by Bruno LeipoldThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Jack McCordick and Annie Galvin. Fact-checking by Kelsey Kudak. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota and Isaac Jones. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Rollin Hu, Kristin Lin, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Beverly Gage and Clay Risen. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

24 Syys 1h 26min

Spencer Cox Wants to Pull Our Politics Back From the Brink

Spencer Cox Wants to Pull Our Politics Back From the Brink

The Utah governor is trying to model a different kind of leadership in a very dangerous political moment.The Trump administration seems intent on using the assassination of Charlie Kirk to crack down on what it calls “the radical left.” But Spencer Cox doesn’t believe that suppression will make Americans safer.For years now, Cox has been thinking seriously about our toxic political culture and what the path out of it could be. So I wanted to have him on the show to talk about how he responded in the hours and days after the shooting, what it has left him thinking about and what he thinks we should do now.Mentioned:Politics and Social Change LabBook Recommendations:Our Biggest Fight by Frank H. McCourt, Jr.A Time to Build by Yuval LevinAmerican Covenant by Yuval LevinThe Pursuit of Happiness by Jeffrey RosenThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Rollin Hu. Fact checking by Michelle Harris, Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Kristin Lin, Jack McCordick, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

19 Syys 54min

We Are Going to Have to Live Here With Each Other

We Are Going to Have to Live Here With Each Other

This is an episode in two parts. First, my thoughts on Charlie Kirk’s murder, now that I’ve had a few days to process it, and to see the unfolding reactions and responses on both sides. Then a conversation with Ben Shapiro — one that was recorded shortly before Kirk’s assassination, but that has a different significance after it.This episode contains strong language.Mentioned:“Charlie Kirk Was Practicing Politics the Right Way” by Ezra KleinDominion by Tom Holland“What J.D. Vance Believes” by Ross DouthatBook Recommendations:Superabundance by Marian Tupy and Gale PooleyDemocracy in America by Alexis de Tocqueville The Constitution of Liberty by F.A. HayekThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Annie Galvin and Elias Isquith. Fact-checking by Michelle Harris. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Rollin Hu, Kristin Lin, Jack McCordick, Marina King and Jan Kobal. Original music by Carole Sabouraud, Sonia Herrero and Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

16 Syys 1h 55min

If Democrats Have a Better Plan, I’d Like to Hear It

If Democrats Have a Better Plan, I’d Like to Hear It

In a few weeks the government’s funding will run out. If Democrats vote for a new spending bill, they will be funding Trump’s autocratic takeover. What should they do?Thoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis column read was produced by our executive producer, Claire Gordon. Fact-checking by Jack McCordick. Our senior engineer is Jeff Geld, with mixing by Aman Sahota. The show’s production team also includes Marie Cascione, Annie Galvin, Michelle Harris, Rollin Hu, Kristin Lin, Marina King and Jan Kobal. Original music by Aman Sahota and Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

7 Syys 22min

The Supreme Court Is Backing Trump's Power Grab

The Supreme Court Is Backing Trump's Power Grab

Trump was losing in the courts. He’s not anymore.In the early months of the administration, the courts were proving a powerful check on President Trump, blocking many of his boldest actions. But those were the lower courts. In the past few months, the Supreme Court has weighed in, and it has handed Trump win after win after win.So what do these decisions enable the president to do? And why is the Supreme Court giving Trump what he wants?To pull all this apart, I’m joined by Kate Shaw. She is a former Supreme Court law clerk, a professor at the University of Pennsylvania Carey Law School and a host of the “Strict Scrutiny” podcast.Note: This episode was recorded on Aug. 21, before Trump announced his intention to fire Lisa Cook from the Federal Reserve Board of Governors and before Immigration and Customs Enforcement re-arrested Kilmar Armando Abrego Garcia and began processing him for deportation to Uganda.Mentioned:“Don't Believe Him” by Ezra Klein“This Is the Presidency John Roberts Has Built” by Peter M. ShaneBook Recommendations:Lawless by Leah LitmanVera, or Faith by Gary ShteyngartWe the People by Jill LeporeThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Elias Isquith. Fact-checking by Michelle Harris. Our senior engineer is Jeff Geld. Mixing by Isaac Jones and Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Rollin Hu, Elias Isquith, Kristin Lin, Jack McCordick, Marina King and Jan Kobal. Original music by Aman Sahota and Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Josh Chafetz. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

2 Syys 56min

Trump Is Building His Own Paramilitary Force

Trump Is Building His Own Paramilitary Force

ICE now has the biggest budget of any law enforcement agency in America.“ICE and Customs and Border Protection have long been the most rogue, kind of renegade and certainly pro-Trump police agencies in the federal government,” explained Radley Balko, a journalist who’s covered policing for decades. “What I think we are seeing right now is Trump is attempting to build his own paramilitary force. They want people whose first, ultimate loyalty in this job is going to be to the president.”Balko is the author of “Rise of the Warrior Cop: The Militarization of America’s Police Forces.” And he’s been tracking the changes at ICE and the Trump administration’s escalating law-and-order tactics on his excellent newsletter, The Watch.Mentioned:“ICE’s Mind-Bogglingly Massive Blank Check” by Caitlin Dickerson“The police militarization debate is over” by Radley BalkoBook Recommendations:The Highest Law in the Land by Jessica PishkoUnruly by David MitchellBottoms Up and the Devil Laughs by Kerry HowleyThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Jack McCordick. Fact-checking by Will Peischel. Our senior engineer is Jeff Geld. Mixing by Isaac Jones. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Annie Galvin, Michelle Harris, Rollin Hu, Elias Isquith, Kristin Lin, Aman Sahota, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

27 Elo 1h 8min

MAHA Is a Bad Answer to a Good Question

MAHA Is a Bad Answer to a Good Question

“Make America Healthy Again” is a great idea — somebody should try it.A lot of the concerns animating the MAHA movement — chronic disease, the unhealthiness of the American diet, how profits warp our health care system — are serious issues. But Robert F. Kennedy Jr. hasn’t taken major actions to address them. Instead he’s gutted funding for scientific research, including nearly $500 million dedicated to mRNA vaccine development, throwing a huge amount of possibly lifesaving research in limbo.How did we get here? What are the politics that allowed Donald Trump to preside over Operation Warp Speed, the single most successful pandemic mitigation policy, and then turn around a few years later to appoint Kennedy to undo it all?My colleague David Wallace-Wells has done incredible reporting on how pandemic policies have shaped our politics, culture and society. Rachael Bedard is a physician and a writer who has been thinking deeply about what MAHA represents and where the movement could find common ground with its critics.Mentioned:“‘I Think He Is About to Destroy Vaccines in This Country’” by David Wallace-Wells“Why Calling RFK Jr. ‘Anti-Science’ Misses the Point” by Rachael BedardBook Recommendations:Doppelganger by Naomi KleinThe End Doesn’t Happen All at Once by Chi Rainer Bornfree and Ragini Tharoor SrinivasanPlagues Upon the Earth by Kyle HarperThe Making of the Atomic Bomb by Richard RhodesCalling the Shots by Jennifer ReichWave by Sonali DeraniyagalaThoughts? Guest suggestions? Email us at ezrakleinshow@nytimes.com.You can find the transcript and more episodes of “The Ezra Klein Show” at nytimes.com/ezra-klein-podcast. Book recommendations from all our guests are listed at https://www.nytimes.com/article/ezra-klein-show-book-recs.htmlThis episode of “The Ezra Klein Show” was produced by Annie Galvin and Jack McCordick. Fact-checking by Michelle Harris, with Kate Sinclair and Mary Marge Locker. Our senior engineer is Jeff Geld, with additional mixing by Aman Sahota. Our executive producer is Claire Gordon. The show’s production team also includes Marie Cascione, Rollin Hu, Elias Isquith, Kristin Lin, Marina King and Jan Kobal. Original music by Pat McCusker. Audience strategy by Kristina Samulewski and Shannon Busta. The director of New York Times Opinion Audio is Annie-Rose Strasser. Special thanks to Dr. Sunil Patel and Dr. Andrew Gabrielson. Subscribe today at nytimes.com/podcasts or on Apple Podcasts and Spotify. You can also subscribe via your favorite podcast app here https://www.nytimes.com/activate-access/audio?source=podcatcher. For more podcasts and narrated articles, download The New York Times app at nytimes.com/app.

22 Elo 1h 22min

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