We Don't Appreciate The U.S. Constitution Enough

Summary

---

Podcast Summary: "We Don't Appreciate The U.S. Constitution Enough"

Podcast: Federalist Radio Hour (Radio America)
Host: Matt Kittle
Guest: Elon Wurman (Constitutional Law Scholar, University of Minnesota Law School; author, The Constitution of 1789)
Date: June 23, 2026

---

Overview

This episode features a deep dive into the U.S. Constitution’s enduring significance, the historical and present-day challenges in interpreting the 14th Amendment (especially birthright citizenship), and a broader discussion of the modern erosion of constitutional principles. Elon Wurman discusses his latest book and offers a compelling argument for the original meaning and contemporary relevance of the Constitution as America approaches its 250th anniversary.

---

Key Discussion Points & Insights

1. The 14th Amendment & Birthright Citizenship

Timestamps: 02:24–18:24

• Origins of Birthright Citizenship

  • Wurman lays out his research, arguing that the common law principle of birthright citizenship was premised on a “social compact” — protection exchanged for allegiance.
  • Quote: “Birthright citizenship was based on this compact theory... but actually, the reason a child was protected in infancy is because the parents were under the sovereign's protection. And not all parents were under the sovereign's protection.” (04:09, Elon Wurman)
  • Wurman clarifies that invaders, ambassadors, and those not under the sovereign’s protection — such as illegal entrants — were likely not included in the compact, and thus, their children might not be entitled to citizenship under original principles.

• Historical Drift in Interpretation

  • He challenges the belief that birthright citizenship for all is a century-old precedent, noting its conventional status is much newer, only crystallizing in recent decades (e.g., post-1980s, following certain administrative and academic trends).

• Case Law & Misconceptions

  • The Supreme Court case United States v. Wong Kim Ark commonly cited to support universal birthright citizenship, actually involved legal residents, not illegal entrants.
  • Quote: “Wong Kim Ark's parents were lawful domiciled permanent residents... no question that they would have been under the government's protection...” (09:40, Elon Wurman)
  • The "subject to the jurisdiction" clause is at the heart of the debate, with Wurman highlighting the distinction between mere subjection to criminal law and the broader, intended “protection and allegiance” relationship.

• Contemporary Examples & Absurdities

  • Discussion of current edge cases, like birth tourism and children born while parents evade border authorities.
  • Quote: “[I]f you successfully escape, evade detection at the border, we will give you the benefits of citizenship and your children the benefits of citizenship. It seems somewhat crazy.” (14:37, Elon Wurman)

• Originalist Caution & Legislative Authority

  • Wurman, identifying as an “originalist,” warns even this school of interpretation faces limits; on “profoundly, deeply morally significant issues” not contemplated by the original drafters, society may need new constitutional moments rather than judicial activism.
  • Quote: “I consider myself an originalist, but... I’m not so crazy to think that originalism dictates answers... to issues that the legislator at the time was not thinking about.” (16:38, Elon Wurman)

---

2. Separation of Powers & Administrative State

Timestamps: 20:36–34:14

• Founders' Design for Power

  • Wurman reviews the Constitution’s careful assignment of power to Congress (legislative), President (executive), and Courts (judicial), arguing that modern delegation to agencies (“the administrative state”) undercuts the original design.
  • Quote: “It suggests that this fundamentally undermines the objective of the separation of powers and the Constitution that the framers gave us, because agencies shouldn't be making all of these fundamental policy choices. It's we the people, through our elected representatives in Congress...” (22:16, Elon Wurman)

• Congressional Abdication

  • The host and Wurman bemoan Congress’ twin failures: expanding federal power (via new interpretations of the Commerce and Spending Clauses, e.g., Wickard v. Filburn) and then delegating much of it to bureaucrats.
  • Quote: “Congress has asserted jurisdiction over a huge swath of national life that they never had jurisdiction over… and then it delegated all of that new jurisdiction to the executive branch. So it's like a double whammy...” (31:12, Elon Wurman)

• Performative Politics

  • Wurman laments that today’s Congress is dominated by “C-SPAN posturing” and not real debate or legislation, a sharp contrast to the seriousness of early legislative sessions.

---

3. The “Living Constitution” vs. Originalism

Timestamps: 34:50–41:29

• Modern Left’s “Living Constitution” Argument

  • Kittle frames the left’s approach as an existential threat: “Everything is in flux, dependent on the sense of society at the time... the primary battle facing this republic.”
  • Wurman responds that “living constitutionalism” is not really about interpretation—it’s about giving courts, not the people, the power to change constitutional meaning.
  • Quote: “Living constitutionalism is not an interpretation of the Constitution. It's a theory of constitutional change... It stands for the proposition that the courts can in fact alter the meaning and content of the Constitution over time.” (36:08, Elon Wurman)
  • He posits that the true source of constitutional rules should remain “we the people” through constitutional moments—amendment and ratification—rather than legal elites.

• Normative Defense of the Original Constitution

  • Wurman champions recovering and defending the “original meaning... because I believe the original Constitution is just normatively good. It was a remarkable accomplishment.” (36:08, Elon Wurman)
  • He links this to a call for “veneration and admiration” of the Constitution as America’s 250th approaches.

---

4. Reconciling America’s Revolutionary Ideals

Timestamps: 41:29–44:23

• Declaration of Independence & Written Constitution

  • Wurman underscores how the Revolution was prompted by the abuses of unwritten, mutable constitutional norms in Britain. The U.S. responded by writing down and binding its government to those principles.
  • Quote: “It’s why we fought the American Revolution: so that the fundamental rights of the people could be reduced to writing and become limitations on the political branches...” (41:49, Elon Wurman)

• Current Challenges & The Way Forward

  • Both speakers express concern about anti-American, anti-constitutional sentiment, particularly within education.
  • Wurman emphasizes the necessity of public conversation and education in defense of constitutional principles: “I think just the most we can do at the present time is to have these conversations and to truly be proud and celebrate America's constitution on this 250th birthday.” (44:00, Elon Wurman)
  • Host’s closing assertion: “Books like yours in our public school libraries... are a better fit for the defense of this republic than porn for middle schoolers... a healthy respect for the greatest Constitution ever created... the good that that Constitution has brought not only to the United States of America, but to the world. And I think we have forgotten that.” (44:23, Matt Kittle)

---

Notable Quotes & Memorable Moments

• “It is weird that if you successfully escape, evade detection at the border, we will give ... your children the benefits of citizenship. It seems somewhat crazy.”
  — Elon Wurman (14:37)
• “Living constitutionalism is not an interpretation of the Constitution. It's a theory of constitutional change... where does our law come from?”
  — Elon Wurman (36:08)
• “Congress was supposed to have primacy, but it certainly does not anymore.”
  — Elon Wurman (34:14)
• “We just have so many people in America who hate America, who hate this constitutional republic, that their vision is to tear it all down.”
  — Matt Kittle (41:29)

---

Structural Timeline (Selected Timestamps)

• 01:20 – 02:24: Introduction of Elon Wurman and episode theme
• 02:24 – 18:24: Discussion of the 14th Amendment and concept of birthright citizenship
• 20:36 – 34:14: The separation of powers, growth of the administrative state, and erosion of congressional authority
• 34:50 – 41:29: Debate over “living constitution,” originalism, and implications for the republic
• 41:29 – 44:23: Links between the Revolution, the Constitution, and modern educational/cultural challenges
• 44:23 – 46:00: Host’s closing reflections and call for constitutional literacy

---

Conclusion

This episode offers an urgent, intellectually rigorous defense of the Constitution’s original meaning and relevance. Through history, legal doctrine, and practical governance, Wurman and Kittle argue that Americans have lost appreciation for the document’s brilliance, often to the country’s detriment. As the 250th anniversary approaches, they call for renewed education, discourse, and respect for constitutional principles — warning that the alternative is a drift toward arbitrary government and the loss of foundational liberties.

---

Transcript

[Kleenex Commercial Announcer]

Allergy season does not slow down when you are on the move. That's why Kleenex Ultra Soft Tissues are ready whenever sneezes strike. Kleenex Ultra Soft Tissues are allergist approved and silky soft for up to 100% irritation free skin. And now with the new Kleenex Snap and Go, you can get that same gentle care made for life on the go. Get the Kleenex Ultra Soft tissues you love in a new compact durable package. New Kleenex Snap and Go snaps shut for a clean tissue anytime, anywhere. For whatever happens next, grab Kleenex Snap and Go.

[Ryan Seacrest]

Hey there, it's Ryan Seacrest for Safeway for you. Save days are here now through June 25th. Find hot deals throughout the store and earn four times the points. Look for in store tags to earn on eligible items from Triscuit, Quaker Reese's and Dot's Pretzels. Then clip the offer in the app for automatic event long savings. Stack up those rewards to save even more, enjoy savings on top of savings when you shop in store or online for easy pickup or delivery, restrictions apply. See the website for full terms and conditions.

[Matt Kittle]

And we are back with another edition of the Federalist Radio Hour. More I'm Matt Kittle, senior elections Correspondent at the Federalist and your experienced Sherpa on today's quest for knowledge. As always, you can email the show at radiohefderalist.com follow us on XDRLST. Make sure to subscribe wherever you download your podcast and of course, to the premium version of our website as well. Our guest today is Elon Wurman, constitutional law Scholar and Julius E. Davis professor of Law at the University of Minnesota Law School. He's also host of the new podcast Rationally Based, and he is the author of the new book the Constitution of 1789. A new introduction fitting to talk about as we are about to celebrate this exceptional nation's 250th birthday. Elon, thank you so much for joining us on this edition of the Federalist Radio Hour.

[Elon Wurman]

Thank you so much for having me. Really, really glad to be here.

[Matt Kittle]

Yeah, no, we have much to discuss. Of course, the Constitution is not quite as old as this country, but it has been put through a lot of battles like this country over the time span. We'll talk about that in the moment. I wanted to begin specifically with something that aligns with the 14th amendment, and just how it aligns with the 14th amendment is being debated. In fact, by the time the podcast airs, we could have a ruling from the US Supreme Court on The birthright citizenship issue, particularly President Donald Trump's executive order on birthright citizenship. It is an extremely important topic because either we're going to. I guess this could go in a number of different ways, but principally, we could remain in the status quo what I believe to be the quagmire of a false interpretation of the 14th Amendment that dates back about 100 years or so. Or we could have a court that says, now wait a minute. The people in Congress who put together the language of the 14th Amendment did not intend this to be carte blanche citizenship for any person who just happens to be born in the United States of America. How did we get here? How has this issue evolved? And what do you think the impact has been, as we've watched firsthand, the repercussions of this interpretation of the 14th Amendment over the four years of the invasion that was the Biden administration and its immigration policies.

[Elon Wurman]

Yeah, well, thanks for the question. As you know, I'm sort of the leading academic on the right, so to speak, who has been writing about birthright citizenship generally in support of the Trump administration policy here, as you said, my new book is called the Constitution of 1789. My previous book was called the Second An Introduction to the 14th Amendment. And I had seen some materials on birthright citizenship then, but I was also untenured then, so why would I have written a lot of this up or further investigated? And the book was really principally about just the freed people and the objective of giving them citizenship and protecting their privileges and immunities and so forth. And. But when you really look at these materials, there was a concept of protection for allegiance. It's really the social compact. Why do we get out of the state of nature and enter into this thing called civil society and agree to obey the government? To give them allegiance, so to speak, is because they protect us in our natural rights. So the equal protection clause is rooted on this social compact theory. Well, it turns out birthright citizenship was based on this compact theory as well. So the theory of birthright citizenship, a common law, was that the child receives protection from the king when the child is born right in infancy, and then the child owes allegiance to the king perpetually at the time is what it was believed. And so this is sort of the conventional wisdom is, oh, well, any child born received protection and therefore owes allegiance, and therefore is a natural subject of the kings, or as a natural born subject of America. But what I have shown in my scholarship is that actually the reason a child was protected in infancy is because the parents were under the sovereign's protection. And not all parents were under the sovereign's protection. So invaders were not under the sovereign's protection. Ambassadors were not under the sovereign's protection. It's true that aliens who came to England with the sovereign's consent, whether in the statutes or explicitly through something called a safe conduct, aliens were under the sovereign's protection. They temporarily entered into this social compact with the sovereign right While they were there, they agreed to give temporary obedience to the king and the king gave them a temporary protection such that it was believed that that child born of aliens was given protection because the parents were in the social compact temporarily and so forth. And what I've suggested is that it is entirely unclear and actually there's some evidence to suggest otherwise, that an alien who'd come illegally or who had come contrary to the sovereign's consent, who's to say that they would have been under the sovereign's protection, that they would have entered into this social compact unilaterally, right exchanging protection for allegiance. In fact, Magna Carta has a clause giving alien merchants protection, safe and secure conduct unless they had been previously or publicly forbidden. So what I try to show in my scholarship is the common law really didn't address the situation of illegal aliens. And there really is reason to doubt that illegal aliens would have been under the protection of the sovereign and within the sovereign's allegiance, such that their children would get protection and become birthright subjects. So that's a really historical sort of explanation of the common law. We can go into the 14th Amendment's language and all of that as well. But where did we go astray? Matt, I think you suggested it was about 100 years ago, maybe 90 years ago, where there was this presumption in Congress in the United States that sort of anybody born was a citizen. But I actually think it's even more recent. I actually think it's even more recent than that. I mean, there were temporary worker programs in the 1920s, in the 1950s as well. Operation Wetback, where a bunch of individuals, temporary migrant workers, were removed from the country. This happened in the 50s and the 1920s. They had hundreds of thousands of children born in the United States. As far as I know, none of them claimed citizenship, which is somewhat interesting. You would have expected sort of some claims to citizenship. I really, you know, the census didn't explicitly record unlawfully present aliens or illegal aliens until 1980. The Carter administration. I think this is a lot more recent of a conventional wisdom than people believe. Tend to think.

[Matt Kittle]

That is very interesting thinking that, you know, the arguments that we have heard, I guess the arguments that have been the most pronounced before the Supreme Court involve that case of a foreign national from China and.

[Elon Wurman]

Yeah, wonky Mark, that's.

[Matt Kittle]

That's exactly right. And. And there's a focus on that. But I think it is interesting that even during. Well, I suppose it's not the politically correct name, we think about Operation Wetback under the Eisenhower administration, it was the removal of illegal immigrants. And to tie it all back to the point of sovereign protection and the social contract, it was never the intention. I don't think, certainly in common law, and I don't think in the 14th amendment that you give citizenship to the children of the people whose first act was to break the law of the country. And I'm just curious how that interpretation, you know, changed.

[Elon Wurman]

Yeah, I think that's exactly right. And to be clear, to answer your question and to clarify, Won Kim Arc is consistent with everything we've said so far. Wong Kim Ark's parents were lawful domiciled permanent residents of the United States at common law. There's no question that they would have been under the government's protection and their child would have been under the government's protection. The language of the 14th Amendment says persons born subject to the jurisdiction of the United States right are citizens. And there was an intimate connection, by the way, between protection and jurisdiction. If you're under the sovereign's protection, it's what makes you allowed. What gives you the right to sue in the sovereign's courts? It gives you a capacity to sue and be sued to access the benefits of the sovereign's jurisdiction. We actually have cases saying this from the War of 1812, but. So people who come here illegally, they could be subject to some degree to US Jurisdiction, in other words. But does it mean you have to give them a full and complete protection? Do you have to completely subject them to the jurisdiction? So, for example, the Indian tribes which everybody acknowledges were excluded from the scope of birthright citizenship, they were subject to some degree of federal criminal jurisdiction. They were subject to the General crimes Act of 1817, which gave some federal court jurisdiction over some crimes that occurred in Indian Country. And subsequently, the Major crimes Act of 1885 greatly expanded this. No one, no one thought that because Indian tribal members were subject to some degree of federal criminal jurisdiction that their children were birthright citizens. And yet this is the primary argument, Matt, that people make today about illegal aliens are subject to criminal process, and therefore they are subject to a jurisdiction such that their children should be citizens well, let me ask you, if someone is caught at the border and is detained at the border trying to cross, and suppose that person kills a border guard, could we criminally prosecute that individual? I don't see why not. I don't see why they can't be made subject to US Jurisdiction for that limited purpose. Does it follow that we have to give them access to our courts to sue and be sued and to enter into contracts? Of course not. It would be totally and utterly preposterous. So why we went astray, Matt, was your question is really hard to. And it's really hard to pinpoint this. Okay. There was some State Department employees in the 1920s that articulated this broader version. And this State Department view seems to have taken hold possibly in Congress in the 1940s and 50s. It's a bit unclear, but, you know, how do certain views become conventional wisdom? Well, you have certain interest groups talk about it. You have certain academics who are incentiv. To have a particular point of view, sort of just presume that it's the conventional wisdom. They treat anybody who writes something else as, you know, bigoted and ignorant. There were books in the 1980s written about this, questioning the conventional wisdom as it was really solidifying. And no one ever let those scholars live it down. So how does this all happen? Is a really tricky question. Less in my expertise, I'm more of the original answer, the original history and the original meaning. But it's an intriguing question.

[Matt Kittle]

Yeah, and it's, it's even more insane. Your, your example is well taken, that if someone is. Is at the border trying to enter the United States and kills a border official, they can, of course, be subject to the laws, the prosecution in the United States. But it's, it's. Let's take it a step further. The notion that. Well, I think Supreme Court Associate Justice Ketanji Brown Jackson brought up in her arguments that if she were in France and she stole someone's wallet, she would effectively be a citizen because she would be under, you know, their, their legal system. There. That's the. This very strained argument that if we take your illustration a step farther, what if that individual killed the border patrol officer and was able to escape into the interior of the United States and then he and his wife had a child, that child would be a US Citizen under this thinking. And that, to me, is just insane. There was another example recently. It was the accomplice. Media treated it like, oh, isn't this funny? But it wasn't. I think it illustrated the point as well. There was a woman, I think, who was coming in from Puerto Rico. She was traveling to the United States. She had her child over US airspace, I believe. So the child was instantly a US citizen as it has been interpreted. These are the same kinds of logic that I think have gotten this country into a great deal of problems. Again, you mentioned that this kind of came out of the bureaucracy. That doesn't surprise me. But I just don't understand how those kinds of cases can stand. But that's where we are.

[Elon Wurman]

Yeah. And there are other legal principles at play here in the example you illustrated. One is it goes back to Roman law. Like you can't benefit from your own wrong. So to the extent that the law is ambiguous here, these background principles of jurisprudence should help inform it. And it is weird that if you successfully escape evade detection at the border, we will give you the benefits of citizenship and your children the benefits of citizenship. It seems somewhat crazy. Look, the problem of temporary visitors was contested at the time precisely for the reasons you say, because they also have allegiances and obligations to their home sovereigns. Right. And so what do you do with all these dual and conflicting allegiances? And they did not. So let me say one last thing about this. It is weird, as you suggested, this problem with temporary visitors especially, but also illegal aliens really was not front and center in 1868 when the 14th Amendment was adopted. Right. There was no illegal immigration in the modern sense until 1875 at the earliest. And even then it wasn't like a big problem until the 20th century. Birth Tourism was just not a thing. Right. So these are really salient, morally significant, normatively important, generationally significant questions. And the lawgiver, we the people, right? Who give the law of the Constitution. Right. We the people did not express our consent or opinions about this in a modern day constitutional amendment. And we the people in the 14th Amendment weren't thinking about this problem. We didn't apply ourselves to this problem. So the Lawgiver, the people have never really articulated a position on this. And it is strange to let you know an ambiguous text and accidental contingent historical conditions, you know, and facts sort of determine the answer to this question. In Federalist number one, I always want to invoke the Federalist if I'm speaking to you here on the Federalist.

[Matt Kittle]

Good idea.

[Elon Wurman]

It's always a great idea. Federalist number one, Alexander Hamilton says that it seems to have been reserved to the people of this country to determine whether mankind is forever destined to to be governed by accident and force or whether they be, they can be governed by reflection and choice. The people have not reflected and deliberated and chosen in answer to these profoundly moral and normative and generationally significant problems. And it just seems that we're just letting historical. If the Supreme Court goes the other way on this, they really, it seems to me, would be letting historical accident and contingent conditions determine fundamental questions of our polity. And that just strikes me. And I consider myself an originalist, okay, I consider myself a textualist, but you know, as Justice Scalia said in a slightly different context, I'm an originalist, but I'm not a nut. Okay? I'm an originalist and I'm a nut. Just to be clear. Like I. I'm willing to get to sort of crazy results, but I'm not so crazy to think that originalism dictates answers or textualism dictates answers to seriously profound political issues that the legislator at the time was not thinking about. Right? I do think that the text that they wrote often operationalizes rules that go beyond their immediate expected applications. And that's fair. But on profoundly, deeply morally significant issues, I think it's fair for the lawgiver to apply himself to the problem before we decide that there is just some answer to it that the lawgiver never gave anyway. That's a bit too abstract and theoretical perhaps, but something I've been wanting to say.

[Matt Kittle]

Most political shows tell you what to think. The future of Freedom podcast trust you to think for yourself. Every episode features two guests who share a commitment to liberty and limited government, but disagree on one major issue. And instead of debating each other, they each make their case one at a time, clearly, thoughtfully, and without the usual political theater. It's a refreshing change from the outrage driven media we're all used to. Hear multiple sides of an argument and make up your own mind. Search for future of freedom wherever you listen to podcasts. Yeah, no, I think your point is well taken and, and perhaps you're a practical originalist as Samuel Alito is, and that's not a. A bad place to be.

[Elon Wurman]

A lot of non. Love Molly. Love Molly Hemingway's book. We had her on our podcast Rationally Based to talk about the book and it's really, really wonderful. And yeah, maybe that's a good way to put it, actually. How about a based originalist? Can I say that?

[Kleenex Commercial Announcer]

Sure.

[Matt Kittle]

Yeah. Hey my friend, this is America. You can say whatever you want. That's. Thanks. Thanks to that fabulous Constitution. We're going to talk about that fabulous constitution in the whole coming up in just a moment. But just as A finer point to this 14th Amendment argument and to what you just talked about. The other side of that argument is, well, this is a representative democracy, as they put, is a representative republic, a constitutional republic. But we, we the people, we the sovereign, elect our representatives, and they, based on our blessing, put together policies and debate policies and pass policies. Now, we didn't have that with lot. We don't have that with a lot of things. With the administrative state, you just have bureaucrats making policy that no American, you know, voted for, certainly. But their argument is your representative have put those people in place to do what they're doing. Does that hold for you?

[Elon Wurman]

Yeah, look, so this goes back, this starts to go to the new book, which I appreciate, the Constitution of 1789, which talks about legislative power and executive power and judicial power and the original meaning of the Constitution in this respect. And let me make a broad point and then a more specific point, I guess, to your question and the broader point is, which I hope comes across in the book, is that everybody thinks that the separation of powers is intended to prevent tyranny. And that's true. That's true. It is. James Madison said that, Montesquieu said that. Others said that you don't want to combine legislative, executive and judicial power in single hands. But the way that the framers drafted the Constitution is they created institutions to exercise these respective powers, and they created the institutions in a way such that they would exercise their particular functions well. So Congress is structured in a sort certain way because if you're going to make laws binding on a nation of diverse people, you'd better have diverse representatives. By diverse, of course, not just racial diversity. I mean, you know, economic diversity, religious diversity, all kinds of diversity. The diversity that they spoke about right. In the, in the 1780s and 90s to deliberate about fundamental questions of law and legal rights. And you have bicameralism, so it has to go through the Senate. You have presentment to the president. You really want reflection, deliberation in a lawmaking process. The presidency, on the other hand, was made unitary precisely because when it comes to execution of the national will, execution of the laws, command of the public force and the military, you want a single person who could act energetically and swiftly, right. Secretly when necessary. And then you have courts that are structured in such a way that they have lifetime tenure and salary protections because you want them to be politically insulated. And what does this tell us about delegations from Congress to the agencies, for example, which you mentioned and sort of was a premise to your question it suggests that this fundamentally undermines the objective of the separation of powers and the Constitution that the frameworks gave us, because agencies shouldn't be making all of these fundamental policy choices. It's we the people, through our elected representatives in Congress, should be making these fundamental policy choices. You know, who else shouldn't be making these fundamental policy choices? And this goes back to, also to the birthright citizenship question. Judges. Judges are supposed to apply law. They're not supposed to create law. Because as soon as they're in the business of creating law, well, they're politically insulated. We don't want politically insulated people creating law. Right. And so when you really go back to the original separation of powers, the original meaning of legislative power and executive power and judicial power and the original institutions that were intended and structured to exercise these power in a particular way, it starts to answer a lot of these questions about delegation, about judicial power, about who decides the question of birthright citizenship in kind of surprising and interesting and interesting ways. So a little abstract again, but I hope that gets a little bit of the question.

[Matt Kittle]

It does. Our guest today is Elon Wurman, constitutional law scholar and Julius E. Davis, professor of Law at the University of Minnesota Law School, also host of the new podcast Rationally Based on. And he is the author of the new book The Constitution of 1789, a new introduction which we will delve now completely into. But as it relates to that Constitution that I think we, we desperately all need to take a clear headed look at what you just talked about, that strong executive is now finally Donald Trump, that strong executive doing exactly what the founders had foreseen through this Constitution. Because I know there was a good deal of debate between the Federalist and the anti Federalist, particularly about how broad the executive powers would be, how powerful the Congress would be, and you know, for some time how much of a back seat the third branch might play in things. Until a Chief justice by the name of John Marshall came up and said, hold on a second. How are we with all of those separation of powers today in the Trump era?

[Elon Wurman]

That's an excellent and challenging question. Let me say maybe three things shortly about this. The, the first is about this unitary executive idea. Does the president have the right to remove principal officers of independent agencies, this headless fourth branch of government, by the time this airs? Who knows, maybe we'll get a decision.

[Matt Kittle]

So more cases pending as well as we speak. Your bet.

[Elon Wurman]

Yeah, exactly. And I certainly think it's true that historically the president was to be a single president, a single executive and for that reason, the framers carefully circumscribed the President's powers. I firmly believe in that. But one of the core powers that they believe that this sole president, this unitary president, would possess is the power to carry into execution the national laws, which included the power to appoint and remove the principal officers of the government. This doesn't mean that Congress can't assign duties to other officers. Right. To officers other than the president. But it does mean that the president has this ultimate back end, supervisory check by removing officers. And I think that. So President Trump's assertion of that power, I think, is constitutional. I think it brings us more in line to the original understanding of executive power. It does come at political costs, by the way, because, you know, firing someone isn't cheap politically, so to speak. Right. If you can quietly tell them not to do something and they have to obey your orders because you're the president. Right. That would be less costly. But you have to publicly fire them. Right. If they disagree with you, which is probably why he hasn't fired the Fed chair and so on. Anyway, so the point here is I do think Trump is realigning the executive branch in an important way. Now, having said that, it's not true that the president alone, through the command of the agencies, was supposed to have control over lawmaking, but that's less a President Trump problem, and it's more a Congress. Since the New Deal problem. Right. Since the New Deal, it's Congress that has been increasingly delegating its legislative authority to administrative agencies. And so if Congress isn't going to be making these laws, and the alternative is a nationally elected president responsible to the people, will now make these laws pursuant to this delegated authority or some headless, independent, deep state bureaucrat. Well, I'll take the president any day. Okay? So I think Congress should be taking more role in all these regulatory and legislative policies. But if they're going to delegate it away, I think better that the president, who's politically accountable, exercise that delegated authority. And so, again, in this respect, I think President Trump is aligning the executive branch closer to the original meaning of the Constitution. Although, again, Congress has something really needs to step up and play a bigger role. The final thing I'll say is war. I don't think presidents of either party have been particularly faithful to the original meaning of the Constitution when it comes to the distribution of war powers. There's no question in my mind, and this is a chapter in the book, that the president was supposed to have the ability to repel invasions and to act defensively without Congress, Congress wouldn't always be in session. Congress couldn't always act quickly. But that's a far cry from dropping bombs in Libya and killing Muammar Gaddafi, which the Obama administration did right in 2011. So there's a modern framework in the old framework, the modern framework that the Obama administration laid out to justify the bombing of Gaddafi, that the president could just bomb any country he wants or engage militarily in any country he wants if it's in the national interest, so long as it's not sufficiently serious, like to invoke the constitutional war powers. That's totally made up. That's totally made up. Okay. But if it justifies Obama's strikes in Libya, you know, leading to the death of Muammar Gaddafi, then surely the modern framework justifies the seizure of Nicolas Maduro, for example. So the point I want to make there is just that. And then I'll stop is under the modern framework, what's good for the goose is good for the gander to say, Trump is doing this and this unconstitutionally. Well, Obama did it with Libya, Clinton did it with Kosovo. They're the ones who kind of established this framework that the modern presidents use. But do presidents of both parties act inconsistently with the original meaning of the Constitution in this regard and the original place that Congress had, sure, but that's like a bipartisan problem. That's not a Trump problem. And I guess that's the last point I wanted to make about your excellent question.

[Matt Kittle]

Well, I'm glad that you, you said all of that because it is extremely important. We have the left in this country that doesn't want to talk about what Barack Obama did and how his administration justified what he did several years ago. And that did. It wasn't the only thing. But that did establish the modern interpretation, if you will. I think just presidents have wrested that control over the years. I think about the Gulf of Tonkin Resolution, you know, in 1965, all of this would seem to run afoul of what our founders originally thought about those explicit powers. But back to another point that you made about the. What I think is the complete and utter abdication of the first branch of government. Congress really has abdicated its specific constitutional role, and it has so often deferred to nameless bureaucrats in the big government administrative state. You can see that and how much the government has grown. You can see that in the policies that that administrative state have put forward and have, you know, saddled the average American with. What do you think the founders would say about today's Congress?

[Elon Wurman]

You know, it's, it's, it's fascinating because it's really a dual problem, right? One is the problem of having delegated all of this authority to the executive. But the other problem, of course, is Congress in the New Deal did too much in the sense of it asserted authority through its commerce power and through the taxing clause, which was reinterpreted to be something else, a spending for the general welfare clause. So in the New Deal, through these new interpretations by Congress and eventually by the Supreme Court of the commerce clause and the taxing clause, Congress has asserted jurisdiction over a huge swath of national life that they never had jurisdiction over. Wages and hours law. Like, where does the minimum wage law come from? Okay, that's not commerce. That's production. That's labor. Right? Agriculture, manufacturing, these were things that preceded commerce and became articles of commerce. And all of this changed in the New Deal. Wickard v. Filbert, which a famous case I'm sure you've talked about, where the government, the Congress basically put a quota on how much a farmer could grow wheat on his own farm entirely within one state for his own purposes, right? No commerce, let alone interstate commerce. And so Congress has asserted jurisdiction through the. The newfound spending clause, spending for the general welfare power to make a lot of social welfare programs. It has asserted jurisdiction through the commerce power, and then it delegated all of that new jurisdiction to the executive branch. So it's like a double whammy where Congress did too much in the 1930s, asserting all this new power, and then promptly delegating that power to the executive. So, look, I certainly think that the framers thought that the members of Congress. And if you read, if you read like the early congressional, you know, the annals of Congress and so on, and you read these debates. These were serious people with serious debates, you know, but even just 50, 60 years ago, Matt, like, those were serious debates that, you know, members of Congress showed up when other people were talking and when they were actually debating and committees did real work. And today it's just C SPAN posturing for the camera. It's all performative. You know, Yuval Levin has great book about this. It's all perform everything. All of our institutions are performative now. That's all it is. And so I think the framers would have been greatly disappointed. And if they could foresee the future, they would have banned C SPAN cameras. Maybe they would have. Maybe they would have, like, required attendance. I think Pennsylvania, the Constitution of Pennsylvania, has something about this about how members have to be present during debate unless, like there's an excused absence or something. There are all sorts of things we could do to make Congress a functioning institution. To go back to the first topic, Matt, I testified in Congress about Birthright Citize.

[Matt Kittle]

Oh, yes.

[Elon Wurman]

And it was just amazing how little interest there actually was from the members to sit and listen. Right. They made their comments, they asked a few questions and then they left. Right. They showed up, if they showed up at all, an hour in to ask their questions and then they left. It's all posturing. It's all posturing. And that's terrible because they were the most important branch. There's a great book called the Myth of co Equal Branches. They weren't supposed to be co equal. Congress was supposed to have primacy, but it certainly does not anymore.

[Chris Markowski]

Is AI coming for your white collar job? The Watchdog on Wall street podcast with Chris Markowski. Every day, Chris helps unpack the connection between politics and the economy and how it affects your wallet. If your current role isn't contributing to the bottom of the line of your company, be prepared for what's going to happen next. And be smart in your career choice because it will be replaced or eliminated. Whether it's happening in D.C. or down on Wall street, it's affecting you financially. Be informed. Check out the Watchdog on Wall street podcast with Chris Markowski on Apple, Spotify or wherever you get your podcast.

[Matt Kittle]

Well, that raises a good point because what we have heard for the last 60 years or so in this country, from the modern left, the radical left, and mostly the Marxist left, and so the Constitution is a living, breathing constitution. It lives, it breathes, it changes. Everything is in flux, dependent on the sense of society at the time. What do you think about that assertion? The same assertion that wants to pack the Supreme Court because you have politicians who don't like the outcomes of elections. What do you think of that notion? And that really is, I think, the primary battle facing this republic.

[Elon Wurman]

Yeah. So I'm not going to plug all of my books, but I did. Okay. Well, I guess I am. My first book was on originalism. So I want all your listeners to buy my new one. Okay.

[Matt Kittle]

You can buy all of them, actually, if you want to. I think they're still available, are they not?

[Elon Wurman]

They are all available. I actually should create some sort of bundle where Cambridge sells them all together. So that's actually an idea. I'm going to take that back to my point.

[Matt Kittle]

Well, this is what the Federalist Radio podcast is all about. If anything, we're about entrepreneurialism.

[Elon Wurman]

Well, I love that. So the first book was called A Debt against the Living, An Introduction to Originalism. But part of the reason I wrote this book, The Constitution of 1789, a new introduction, is precisely because I wanted to recover the original meaning of the Constitution. The original meaning of legislative power, executive power, judicial power, commerce clauses, taxing clause. Because I believe the original Constitution is just normatively good. It was a remarkable accomplishment. And I think to the extent we could bring our modern day politics and government more into line with that original Constitution, it would be normatively better. I think reining in the commerce clause, reigning in the spending, so called spending clause, like would all be better. Restoring Congress's role would be better. So in writing this book, I hope to instill admiration and veneration for the Constitution as it approaches is the 250th birthday, as you said in the introduction. And so this debate between originalism and living constitutionalism, let me just say sort of one more thing about it. I don't really think it's an interpretive debate. I think calling it an interpretive debate is conceding too much ground to the progressives. Okay, Living constitutionalism is not an interpretation of the Constitution. It's a theory of constitutional change. It's a theory of who makes constitutional rules. It's a theory of where the content of our constitutional law comes from. So even in a living constitutionalist system, something is going to get its original public meaning. Like when the Supreme Court, tomorrow, Thursday, whatever day it is, puts up its opinions on the Internet. How do we know what they require of us, what they prohibit us, what they allow us to do. You interpret the Supreme Court opinions with their original public meaning just. You interpret John Marshall's opinion and Marbury v. Madison from 1803 with its original public meaning. Original public meaning is a real thing. I don't think anybody disputes it. The question is, where does our law come from? Does our law come from the Constitution that is the parchment under the glass at the National Archives, and therefore it's its text and its original public meaning that determines our law today? Or is it the text of the judicial opinions, you know, that the Supreme Court justices who all went to Harvard and Yale put on the Internet, you know, on Thursday? Does that determine the content of our constitutional rules? So originalism stands for the proposition that our constitutional rules comes from we the people, as articulated in a constitutional moment, in the adoption of the Constitution, in the adoption and ratification of amendments to the Constitution, and that the political Branches, Congress, the Executive. The courts who are supposed to be bound by the Constitution cannot themselves alter and change the Constitution. The courts who are equally bound to the Constitution cannot change and alter its meaning. So that's what I think living constitutionalism stands for, that the courts can in fact alter the meaning and content of the Constitution over time. And so I think that's just normally not how interpretation works. But look, it's also a normative debate. Maybe the original Constitution is so bad that we should have judges update it. That's a better system. And who's to stop them if we the people agree with that today and have just accepted it? And so part of the objective of writing this book, seeking to recover the original meaning of legislative, executive, judicial power and so on this original Constitution, is to normatively argue that it's good, that the Constitution is good and we should be happy and proud to continue following it and its original meaning. As you know, the source of our Constitution.

[Matt Kittle]

Well, there's so much to unpack in that. And I just want to take a few of the finer points. I know there's a Judge in Washington D.C. by the name of Boasberg who definitely believes that judicial opinion creates law. But that takes us back to judicial opinion, judicial interpretation, creating laws, and that is what the Constitution forbids in the separation of powers. But all of that tied together in this whole concept of the living, breathing Constitution. And not for a minute do I believe that's a viable argument. I'm just saying that is the argument of so many people, politically active, leftist, and they have worked tirelessly to make that the actual vision and application of our Constitution. And I think that's where the battle lies is to, as you said, and that's the broader point. You have to look at the Constitution, I think, as we used to look at the Constitution as a gift from God, that's what the living, breathing people get away from, that, that the rights of man do not come from a king, a single sovereign. They are derived from the people, and the people are derived from their creator. And that ties the Declaration of Independence, which we will soon celebrate 250 years, and that glorious Constitution that came out of it. We just have so many people in America who hate America, who hate this constitutional republic, that their vision is to tear it all down. So I ask you that where do we go from here in that battle?

[Elon Wurman]

Well, let me start with the history. And then where we go from here is having these conversations about this. I absolutely love that point that you just made. And let me just say that this is why we fought the American Revolution. So I love your connection to the Declaration and the Constitution here, the cause of the American Revolution. This book was written in time for the semi quincentennial. It was intended that way. And I do think there's a deep connection between the Constitution and the Revolution. The Revolution was fought because the unwritten British constitutional system maintained that the British Parliament could do whatever it wanted. It was a final arbiter of unwritten constitutional norms. It was the final arbiter of all legislation, of all policy. There was no power antecedent to and superior to the Parliament. Well, what happens when Parliament starts enacting legislation through this unwritten constitutional system of parliamentary supremacy and parliamentary sovereignty that the American colonists believed violated their fundamental unwritten constitutional rights rooted in immemorial custom? Right. They still believed in the English constitution of the 1600s, so to speak. Well, when the British supremacist constitution, the parliamentary supremacist constitution, it starts leading to the enactment of laws like taxation without representation that violate these unwritten rights. That's what gets the American Revolution. Right. It's this conflict between these two constitutional visions. And how do you solve that conflict? Well, in the future? Well, you take down those unwritten customary principles and you write them down, you reduce them to writing. You figure out the most important ones and you reduce them to writing, and you make them binding on the political branches and enforceable against the political branches so that the Parliament never again, or the Congress would never again be the arbiter of its own constitutional powers. And so it's why we fought the American Revolution so that the fundamental rights of the people could be reduced to writing and limit and become limitations on the political branches of the government, which I think necessitates a kind of originalist constitutional interpretation, because living constitutionalism rejects that whole notion, the whole purpose of the revolution, by allowing the political branches to decide the scope of their own powers and to change, without resorting to the people themselves, what those constitutional rules are. So I loved that point you made, Matt, about the connection between the Declaration and the Constitution. And I talk a little bit about that in the first two chapters of the book. And where do we go from here? I don't know. Look, I'm doing my part. You're doing your part. I wrote this book in time for the semi quincentennial precisely because I want people to have these conversations and to understand these profound connections between the Revolution and the Constitution. And I think just the most we can do at the present time is to have these conversations and to truly be proud and celebrate America's constitution on this 250th birthday. I don't know.

[Matt Kittle]

Call me crazy, but I tend to believe that books like yours in our public school libraries, in particular schools in general, are a better fit for the defense of this republic than porn for middle schoolers. Call me crazy, call me old fashioned, but I believe a healthy respect for the greatest Constitution ever created. And I do believe divinely created, divinely influenced by some very exceptional human beings. It's just, it is amazing what we have, the good that that Constitution has brought not only to the United States of America, but to the world. And I think we have forgotten that. And I think we have been brought to forget that by some very angry people and misguided people in our education system. Thanks to my guest today, Elon Wurman, Constitutional law Scholar and Julius E. Davis professor of Law at the University of Minnesota Law School. He's also author of the new book the Constitution of 1789. A new introduction. We'll be back soon with more of the Federalist Radio Hour. Until then, stay lovers of freedom and anxious for the fray. The table.

[Ryan Seacrest]

Hey there, it's Ryan Seacrest for Safeway for you. Save days are here now through June 25th. Find hot deals throughout the store and earn four times the points. Look for in store tags to earn on eligible items from Triscuit, Quaker Reese's and Dots Pretzels. Then clip the offer in the app for automatic event long savings. Stack up those rewards to save even more. Enjoy savings on top of savings when you shop in store or online for easy pickup or delivery, restrictions apply. See the website for full terms and conditions.

[Lowe's Commercial Announcer]

This July 4th at Lowe's, get up to 45% off select major appliances, plus save $80 on a select Char Broil Performance Series gas Grill, now $299. Our best lineup is here at Lowe's Lowes. We help you save valid through 7 8, while supplies last selection varies by location. See lowe's.com for more details.

[Kleenex Commercial Announcer]

Visit your nearby Lowe's.