Advisory Opinions Podcast: "The Oldest Constitutional Question"

Host: The Dispatch
Episode Date: September 18, 2025
Guest: Professor Richard Primus, University of Michigan Law School

Episode Overview

This wide-ranging episode of Advisory Opinions features hosts Sarah Isgur and David French dissecting a grab-bag of contemporary legal issues—from the boundaries of hate speech law, the politics of Supreme Court interim dockets, and Supreme Court clerk hiring elitism, to the question of Supreme Court cases being mooted before decision. The centerpiece is an in-depth, paradigm-challenging interview with Professor Richard Primus about the “oldest question” in constitutional law: Are Congress's legislative powers limited to the Constitution’s enumerated list, or is enumeration just a non-exhaustive marker? Primus’s new book, The Oldest Constitutional Question, challenges longstanding con law orthodoxy about federalism, originalism, and the boundaries of congressional power.

Key Discussion Points and Insights

1. Hate Speech and Free Speech Law (02:06–09:05)

• Context: Discussion was prompted by statements from Attorney General Pam Bondi advocating for the prosecution of "hate speech," which contradicts well-established First Amendment law.
• Summary of Legal Doctrine:
  • The Supreme Court (notably in 303 Creative and Masterpiece Cakeshop) has made clear that government cannot censor speech simply for being hateful; only a narrow category of speech like true incitement or defamation is unprotected.
  • Sarah Isgur (05:11):
    “If you want the government to prosecute people for hate speech … you have to be okay with your worst enemy getting to choose what the definition of hate speech is.”
  • Bondi’s comments received bipartisan condemnation and she later backtracked her remarks, reflecting the breadth of First Amendment support across the spectrum.

Notable Quotes

• David French (07:55):
  “If you’re thinking for half a second that a hate speech prosecution would be a reasonably good idea, and allowing the Trump administration to define what hate speech is, just listen to the man himself.”

2. Social Censure and Cancel Culture (09:05–14:59)

• Debate: The hosts explored whether and how private actors (employers, the public at large) should engage in "social censure" for offensive speech.
• David French on Employer Rights vs. Social Tolerance:
  • Employers have legal rights to terminate employees for "vile" speech, but he urges a default towards tolerance—save for cases of “obviously vile, bad faith employees” (10:03–12:18).
  • French draws distinctions between truly hateful statements and more nuanced or critical views often swept up in cancel culture (13:41).
• Sarah Isgur (12:18):
  “There's the tolerance for different viewpoints … And also, if you're an employer, the lack of judgment of your employees for being on social media in the first place.”

Memorable Anecdote

• Ambien Twitter Moment (11:41): Roseanne Barr blamed a racist tweet on Ambien; the company cheekily responded that "racism is not a known side effect of Ambien."

3. Supreme Court’s Interim Docket and Partisanship (14:59–24:38)

• Context: Recent New York Times coverage alleged partisan bias in how the Supreme Court handles emergency (interim) applications from the Trump and Biden administrations.
• Sarah Isgur (14:59):
  She criticizes misleading statistical comparisons, noting that the administration only appeals stronger cases to the Supreme Court, and the subject matter differs across administrations. Noteworthy is the greater apparent "partisan" split on the interim (emergency) docket vs. the merits docket, with “333” (Roberts, Barrett, Kavanaugh) Justices showing the most nuance.
• David French (19:55):
  Highlights that many cases concern the President’s authority over the executive branch—a context where Republican- and Democratic-nominated justices predictably differ.
• Both conclude: The interim docket exposes judicial philosophy differences (especially on executive power) rather than raw political partisanship.

4. Delegation of Taxing Power and the Major Questions Doctrine (24:38–32:38)

• Listener Drive: Email from Prof. John Endian raises the idea that Congress cannot delegate its explicit taxing power to the President via vague statutory language (IEEPA and tariffs).
• Key Insight:
  • Congressional delegation of taxing authority must be explicit, historically understood as different from other enumerated powers.
  • Sarah Isgur (30:06):
    “That's hiding an elephant in a mouse hole … If there's no sign that says [Congress delegates all taxing power], you can assume there's probably not an elephant in the mouse hole.”

5. Clerkship Hiring: Rehnquistian vs. Sutarian Approaches (32:38–36:58)

• Summary: Listener Andy Smarrick’s research highlights the near-monoculture of Ivy League hiring among Supreme Court Justices (and how justices who are themselves non-Ivy tend to hire more widely).
• Sarah Isgur:
  Reads Smarrick’s concluding thought, encouraging more diverse clerkship hiring practices.
• David French (35:10):
  “There is a difference between elite higher education and elites in higher education.” Gives example that the University of Alabama often enrolls the most National Merit Scholars due to generous scholarships—warning elite institutions not to conflate selectivity with merit.

6. Mootness Gamesmanship Before the Supreme Court (36:58–41:49)

• Legal Tactic: Discusses the concern of litigants mooting Supreme Court cases (voluntary dismissal) after cert is granted to avoid a likely adverse ruling—calling it “gamesmanship that the court shouldn't tolerate.”
• David French:
  Emphasizes the problem of parties withdrawing only from cases where they anticipate losing, while letting favorable circuit rulings stand.

Interview: Professor Richard Primus & "The Oldest Constitutional Question" (45:18–69:03)

A. The Central Thesis

• Primus (46:08):
  “Every law student learns that the federal government is a government of enumerated powers ... Congress can do what's on the list and not what's not on the list … This book says most of it’s wrong.”
• His Big Idea:
  The enumeration of congressional powers in the Constitution wasn’t clearly intended—or textually mandated—to limit Congress ONLY to those powers. The list was created as much to empower Congress and define its powers versus the President or states, not as a strict limitation.

B. Problems With the Standard Enumerationism

• It’s Not Textual:
  The Constitution doesn’t say Congress is only vested with the enumerated powers; Article I, §1 speaks in terms of “herein granted.”
• 10th Amendment:
  The text reserves to the states “powers not delegated,” not “not enumerated.” Attempts to amend the wording to “expressly delegated” failed.
• Judicial History:
  Before the New Deal, the Court recognized a variety of implied federal powers (e.g., the Legal Tender cases, Native American affairs). The broad construction of enumerated powers arose in the New Deal not because enumeration was limiting, but because it became less necessary to look for “implied” powers due to ever-broader interpretations of the Commerce and Taxing clauses.

Notable Quote

• Richard Primus (47:29):
  “Enumerationism is a lens through which we understand constitutional law. It’s not a set of facts about the Constitution that must be true ... It’s one way of looking at how all this works. And there are other possible ways. And enumeration is a flawed way.”

C. Originalist and Pragmatic Arguments

• Primus:
  “It’s wrong not because nobody had that idea. It’s wrong because that idea wasn’t sufficiently a matter of consensus to command agreement and be written into the Constitution … It was not a settled question.” (53:39)
• 10th Amendment:
  The Amendment’s deliberate wording leaves the question open; rejection of “expressly” means delegation could be broad or implicit.

Analogies & Notable Moments

• Isgur (51:00):
  Praises the book both as a work of legal argument and as a method of arguing against deep conventional wisdom.
• Primus (65:46):
  Compares constitutional hermeneutics to biblical exegesis: “There are very few moves that constitutional interpreters know that the biblical hermeneuticists did not know long before them.”
• Isgur (69:03):
  “Originalists are the heir to Martin Luther. That makes actually a lot of sense to me. What a fascinating historical analogy. I’m going to be chewing on that one for a while.”

Timestamps for Major Segments

| Time | Topic / Segment | |----------|---------------------| | 02:06–09:05 | Hate speech, First Amendment doctrine, Attorney General Bondi controversy | | 09:05–14:59 | Social censure, cancel culture, employer discretion | | 14:59–24:38 | Supreme Court interim docket partisanship/statistics | | 24:38–32:38 | Congressional delegation—taxing power and the Major Questions Doctrine | | 32:38–36:58 | Supreme Court clerk hiring, Ivy League dominance | | 36:58–41:49 | Mootness and Supreme Court “vehicle” gamesmanship | | 45:18–69:03 | Interview: Prof. Richard Primus on enumeration, originalism, and the Constitution | | 69:03–71:01 | Closing reflections and sign-off |

Memorable Quotes (with Timestamps)

• Sarah Isgur (05:11):
  “If you want the government to prosecute people for hate speech … you have to be okay with your worst enemy getting to choose what the definition of hate speech is.”

• David French (07:55):
  “If you’re thinking … that a hate speech prosecution would be a reasonably good or defensible idea and allowing the Trump administration to define what hate speech is, just listen to the man himself.”

• David French (35:10):
  “There is a difference between elite higher education and elites in higher education.”

• Richard Primus (47:29):
  “Enumerationism is a lens through which we understand constitutional law. It’s not a set of facts about the Constitution that must be true … And enumeration is a flawed way.”

• Sarah Isgur (69:03):
  "Originalists are the heirs to Martin Luther. That actually makes a lot of sense to me."

Tone & Style

The hosts continue their signature blend of serious doctrinal analysis, nerdy legal enthusiasm, and wry humor. The episode is accessible to both legal nerds and interested lay listeners, with explanatory asides, sharp analogies, and a lively back-and-forth. Professor Primus’s interview stands out for its clarity, careful historical inquiry, and skeptical humility about legal dogma.