By the People | Now It’s Your Turn

98 of the top 100 U.S. accounting firms trust Bill to simplify and secure bill pay. That's proven financial infrastructure built on over a trillion dollars of secure payments. Visit bill.com slash proven for a special offer. This episode is brought to you by Gab. The youth mental health crisis is all over the news and we know social media is driving it. 45% of girls and 32% of boys feel overwhelming stress from being on social media and together 25% of both feel worse about their own lives. Listen, I've watched firsthand what social media does to my boys and I am pretty comfortable saying it makes them feel smaller and sadder and less than. So here's the good news. A company called Gab is tackling the problem by doing something no one else is doing. Their approach is tech in steps. Techin Steps works by providing safer phones and watches for kids with no social media tailored to every age, from GPS tracking-enabled watches for younger kids to phones with parent-enabled apps for tweens and teens. I can't recommend Gab enough, and right now use our code to get the best deal on a kid's phone that will make parenting easier and give you more peace of mind. Visit gab.com slash amicus and use code amicus for an exclusive offer. That's Gab, GABB. This is Amicus, Slate's podcast about the courts, the law, and the Supreme Court. This is the final episode for now of By the People. I'm Dahlia Lithwick. And I'm Mark Joseph Stern. Courts emerged as a branch that could participate, but the idea that they would be final and binding over the people themselves, it was just rejected. Listening to freed people describe from their own voices what the experience of slavery was and how they understood freedom can help us understand not only the contemporary understanding of slavery was, but also shed light into how this doctrine can develop. The public. saying, for example, with the No King's rallies, we do not think that unaccountable executive power is a part of our political system. Through organizing, through telling our stories, we made our case that we were part of the fabric of America. We were not outcasts who should be arrested for our existence or kicked out of federal employment. We were actually part of the fabric of our communities. It's a fundamentally constitutional claim, a claim about like the structure. of political society. You know, it's possible that a future historian will look back on this time and write about this moment as a time of popular constitutionalism. On the main, if you look at American history, ordinary people have done a much better job of defending their rights than judges have.

Through these podcast episodes and in print articles at slate.com, this series has tried to show in the most visceral and concrete ways what it looks like to affirmatively behave as though the Constitution is democracy's owner's manual and that it belongs to the people and not just to the courts. We've been trying to shake off a decades-long pattern of passive, spectating, and learned helplessness, where the Supreme Court grants itself more and more power to decide every aspect of American life. And a lot of us just got used to going along with it with occasional breaks to talk about court reform. On this week's show, now it's your turn. We're about to slide into a summer break. But while the court is on summer vacation, you can be a fully employed constitutional worker bee. We want you to take that time to think about the ways in which you can make constitutional meaning in your life, in your community, in your profession. And to think that through, we are joined by someone who has been doing just that. Jamel Bowie is a columnist for the New York Times, where he offers historical context for present-day events. He's also our former colleague here at Slate. In 2021, Jamel received the Hillman Prize for Opinion and Analysis Journalism, and in 2024, he was elected to the American Academy of Arts and Sciences. In 2025, he received the Carrie McWilliams Award for a major journalistic contribution to the public's understanding of politics from the American Political Science Association. And he also received the Tikuna Alam Prize for promoting public historical literacy from the American Historical Association. Jamal Bowie, welcome back to Amicus. Yes, thank you so much for having me. I always get very embarrassed when people read my bio because, I don't know. I just do. I get bashful. You've earned it, buddy. It's all you. You deserve these. I think he just need to just. sit there and bask in it. All right. So, Jamil, let's maybe start where this series started, and that is to agree that the U.S. Supreme Court's current status as the sole owner of the Constitution is nowhere to be found within the Constitution. Yes, that's right. In fact, I think if you were to, you know, time travel to 1789 and tell the American to ratify the Constitution, not even the people at the convention, but the people who ratified it, that they would be handing over the Constitution and its full meaning to nine unelected judges, half of them Catholics. thinking about 1789, but nine unelected judges, they would lose their minds. They would be like, what do you, what are you talking about? Your point being that anti-Catholic bias was extremely prevalent at the time. And if they could see our world today, they would be appalled. But I think they'd be more appalled about the nine unelected judges part. The anti-Catholicism is just kind of funny. It's just sort of funny to think that the standard bearers for this, you know, so-called original.

are like Catholics? People who would have been excluded from the kind of ideal view of the citizenry in 1789. People who would have been excluded, right, in a time where they basically tolerated the existence of Catholics, but weren't too happy about the fact that they were there. Jamel, as a serious student of American history, do you have a theory for why Americans in the course of our lifetimes came to believe that these nine unelected judges have the final and irrevocable say on what the Constitution means? Do you have a theory for why this public passivity is so ingrained? I think it's entirely historically contingent. Like, it's very recent. And I would tie it to a handful of things. The first is that you had the Warren Court emerge in the middle of the 20th century as a court that was trying to use judicial power to expand rights, protect the rights of minority, expand procedural rights, all sorts of things. You had at the same time a liberal elite. both in the academy and in politics, that was super nervous about the ability to politically defend these things. And so looked to the war in court to do this and then became. extremely solicitous of judicial power when it seemed like the political tide was turning, right? So as conservatives and Republicans began winning elections in a major way in the 70s and 80s again, you had liberal legal and political elites who are like, well, you know, of course the courts are the primary defender of the people's rights. Of course we have to defer to the court's understandings because they're in their minds deferring to the jurisprudence of the Warren court. And that you also have. as this is all happening, a kind of professionalization of the Supreme Court. It's interesting to look back prior to like 1960, 1950, and just see. the professions and the things that justices did prior to being on the court. And a lot of times, they had very little actual experience on a federal bench. A lot of times they were practicing lawyers, but like mainly politicians. The court was understood, especially in the 19th century. The UPennistory and Rachel Sheldon has a great book coming out about this quite soon. In the 19th century, it was understood that this was a political body. These were political actors, and they had political experience. And that continued into the 20th century. You know, Warren, Earl Warren, to start, was governor of California. And that kind of political experience wasn't uncommon.

In the last 50 or 60 years, the court has become much more professional. Like the justices either were long-serving members of the federal bench or put on the federal bench prior to being elevated to the court to give them that experience. They all come from a handful of elite law schools. Their careers are in the law. They're... professional lives, their personal lives are all tied up in elite law. And I think what that does, what that professionalization does, is create the impression that what the court is, is this non-political body of people whose job is to like, point their big brains at constitutional questions. And that, I think, bolsters the sense that, yeah, this is, you know, the Constitution, this is what they do. They interpret the Constitution for us, and then we follow the rules they set down. Is these two things happening at once that I think have created this impression. And, I mean, the other part of this is the political right has made a concerted effort in its imagery, its imaginary of what the court is, sell the image of the court. as this apolitical body of people who are engaged in, you know, big brain constitutional banking. And I think the public, like, there's not been any countervailing force, right? And so the public is just like, oh, okay, that's, I guess that's what it is in a very short amount of time. That's what people think the court is. I know in my experience, when I've written something like, you know, maybe we should have a non-judge on the Supreme Court, people are like, that's insane. But it's like, no, there were a lot of non-judges on the court for most of the court's history. It's interesting because you are echoing this theme that Professor Larry Kramer, who coined the term popular constitutionalism a long time ago, one of the themes he really raised was this doesn't actually become a problem until the political right and the political left agree that the court is divine and that can only happen after the Warren Court Revolution. And the other thing that you're saying that's actually incredibly helpful to frame this conversation is that. There just didn't used to be 300-page. opinions, you know, like decisions were seven pages and Brown v. Board could be printed on the front page of a newspaper, right? Like the idea that this has to be weighted down with law review articles and footnotes and arcana about the history of a three-part test is a way of obfuscating, right, making it seem as though there is no way that the former governor of California could do this because not even the smartest, you know, professor.

at Yale Law School can do this. And so in that sense, the court works hand in glove with the American people to create this mythology of the irregular balls and strikes court. We've now asked you sort of two, give me questions. I'm going to ask you one more, which is if we're on the same page about the role of the high court, can we agree that the answer to the question of who actually owns the Constitution that when we started with, has to be the people themselves. And of course, this is a trick question because you've said that a thousand times, as have we. Yeah, no, I mean, that's what I would say. The Constitution belongs to the people themselves. I want to add a little more to your point about... the length of opinions, the shrinking number of opinions, right? They decide fewer and fewer cases every year. You know, people may look at that and see this sort of like a technocratic or procedural thing. I think once you see it as a political thing as well, right, that in the 19th century, in the early 20th century, when the court first has much less control over its docket, but it's deciding hundreds of cases with these short opinions, they're doing it in part because... those earlier courts did feel the need to be more responsive to what was happening in the world at large, right? Like they couldn't just sit on stuff because they were part of an active political process. And so I very much agree that, you know, dropping 100-page opinions four or five months after the case is heard on cases that are of immense public importance is both a way to... create the impression, again, there are these legal gurus, but also another way of separating it from the public. What it looks like when the court agrees the Constitution belongs in significant part to the public is a court that feels an obligation to be more responsive, to let people know this is what we think. And, you know, part of the thing about a lot of short opinions, it is not the final word. 300-page opinion feels like the final word. That's it. But a short opinion is something that can be bounced about by the public and its representatives. I also think like one really recent and great example of the truth that a longer opinion is not necessarily a better opinion comes in the birthright citizenship case and the set of decisions from that. Clarence Thomas dissent. is more than three times as long as the majority opinion, I think. And it's also way more than three times worse. Like Clarence Thomas is just sort of randomly cherry picking these sort of arcane figures who wrote in their diaries or said in speeches like offhandedly that they thought that birthright citizenship didn't apply to temporary visitors. And then just sort of stitching it all together and declaring it to be this grand constitutional theory. And it's not. But if you aren't trained in the law, Frankly, if you don't have like the BS sort of radar, you might read that and kind of find it persuasive and be like, well, all these thinkers that Clarence Thomas sort of plucked out from like a control-left search in Westlaw had this mistaken view of the citizenship clause. So maybe it's right after all. And I really think that like length and density is coming to be a substitute for genuine like accuracy and persuasiveness in Supreme Court opinions. And Thomas is often the worst defender with these.

bloated pseudo-originalist opinions that are just a kind of random like little sort of dance through history where he only picks the dance partners that happen to agree with him. So. Let's move on from these easy questions where I think we all agree, and we feel like we know the answer, to maybe sort of find our way to what all this means in concrete terms for ordinary people today. So we've been tracking historical examples. We spoke to David Gans back in June about the Black conventions that were so fundamental to the ultimate framing of the Reconstruction amendments. We talked about in-returner, pushing back against racialized apprenticeship laws to expand the 13th Amendment and inform the 14th Amendment. More recently, the fight for marriage equality and Obergefell and even gun rights in Heller. These are all examples of the active participation of the American people in deciding constitutional meaning. What do you hope people who are today feeling trapped and powerless in this political moment? Take from those and other historical examples. Yeah, a couple of things. I mean, I would bring up some other examples, too, the political response to the Dred Scott, which was both, you know, the early Republican Party, Lincoln in particular, saying, listen, you know, we will respect this as a decision between the parties involved, but we reject the idea that this can have any binding say on the meaning of the Constitution. And then also there's a press from Republicans at the time to pass legislation repudiating Judge Scott and just to do things that might like limit the ability of the court to act. So later in the 1860s you have efforts to say, oh, the court could only overturn laws of Congress with the supermajority. This is a thing that kind of begins making way making the way to make the Congress and eventually fails. But sort of looking at the Congress's control over the structure of the court to do something about all of this. The first step, the Judge Scott example is instructive, because I think the first step for ordinary Americans is just to recognize that, like, yes, Congress exercises political control over the court. Congress can structure the court. Congress can do all kinds of things to discipline the court if it wants to. And in fact, much of what we recognize as the modern court is a construction of Congress. It's control over its docket, the building it sits, and all these things. You know, during primary season, you should be asking the people running in the Democratic primary. Like, what are your thoughts on all of this, right? These are questions at town halls, at events, as you call representatives, all these things you should be asking. Like, what do you think should be done about the court? Would you support these sorts of things? And kind of making it a concern in the same way that the reason why you're seeing larger numbers of elected officials. talk about regulating data centers is because they are reading the public temperature. They are seeing people get angry about them face-to-face. Getting angry about the court in a face-to-face environment with lawmakers and getting angry about the court's lack of accountability in its anti-democratic orientation is the kind of thing that will get lawmakers to at least start thinking about the fact that, yes, we can regulate this court.

passing legislation, you know, passing a revitalized voting rights act that explicitly says we view this to be appropriate legislation. This is in keeping with our powers as traditionally understood and kind of daring the court to go at it. That's the appropriate response. To use the word appropriate again, that's the appropriate response to that. So much of. the court's irrigation power to itself has been this kind of, you know, what are you going to do? Stab me response. And I do think that like at a certain point the response is to be, yes, we're going to stab you. Now you're speaking figuratively, of course, but I fully take your point, Jamel, that at some juncture, Skodis taking the position of what are you going to do about it, requires a response from some other branch or representative of the people that involves actually doing something about it. We're going to take a short break when we come back how an abolitionist's conception of liberty might be the key to an empowering, popular, 21st century understanding of the Constitution. After these messages. Every June, as the Supreme Court term reaches its chaotic conclusion, life gets pretty overwhelming here at Amicus. At times like that, affordable, accessible mental health care can make a real difference. Finding a therapist is hard enough. Finding one who takes your insurance can feel nearly impossible. Many online therapy platforms don't accept insurance at all, leaving you to pay the full cost out-of-pocket or sign up for an expensive monthly subscription. Rula works with more than 100 insurance plans, bringing the average copay down to just $15 per session. That means real therapy from a licensed professional at a price that actually makes sense. Rula also helps you find someone who's genuinely right for you. Instead of simply matching you with the first available provider, it considers your goals, preferences, and background, then gives you a curated list of licensed in-network therapists who fit your needs. There are no waitless or endless back and forths, and appointments may be available as soon as tomorrow. Thousands of people are already using Rula to get affordable, high-quality therapy that's actually covered by insurance. Visit rula.com slash amicus to get started today. That's rula.com slash amicus. You deserve mental health care that works with you, not against your budget.

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And we're back with Jamel Bowie. This is By the People on Amicus. Episode four, now it's your turn. I was really taken by something I heard you say about Charles Sumner, who represented Massachusetts in the Senate from 1851 to 1874. Sumner was a radical Republican on the vanguard of the anti-slavery movement. And as an abolitionist, he was fighting to rewrite the Constitution, using Frederick Douglass's language here. The Constitution is a liberty document. And he was responding to a view of the Constitution that saw it as written by powerful men to embody a theory of power and mastery. And I found myself listening to and wondering whether in this era, in which law is so often deployed in this key of mastery and this key of power, whether the language of liberty borrowed from Sumner and Douglas might actually be a useful circuit breaker. Yeah. I mean, I think part of getting there is breaking oneself of the idea of the notion that the Constitution is primarily a legal document, that the Constitution is primarily something for which, if you make a claim about it, the proper response is to sort of like, you know. Search to the case law and answer. And I think people have to get more comfortable with asserting things that they believe to be true about the Constitution, right? So to use the unitary executive as an example, it's all legal theory. It's all kind of dreamed up by executive branch lawyers and they have like tried to look for places where they can say that this is the case. And it's important to do research and to kind of tackle stuff on its own terms. But in terms of politics, I think it's important to just be able to say, yeah, that sounds stupid. That like the Constitution that we have is clearly a document meant to instantiate self-government. And if the Constitution allows for a situation where the president can act as a de facto dictator, then whatever understanding that is is just wrong on its face, right? This is, I mean, this is actually like a modality of constitutional interpretation. It's like a kind of interpretation of constitutional ethos. Like it's a thing that people do. But I think in the political realm, no one's comfortable with it anymore. No one's comfortable with just saying, at least on the political left, but just saying this is what we believe the ethos of the Constitution to be. We believe it to be a document that is trying to instantiate a more egalitarian society that's trying to instantiate a freer society, one in which people can govern themselves to the full suite of rights. And... I think that's important. I think it's important to be able to talk in that way and bring the debate actually away from arcane interpretation and back towards. Okay, so what are we even doing in the first place here?

I have a take on that that's slightly different, but still, like, harmonious, which is that when the Supreme Court embraces the unitary executive, it is also sort of saying, like, this is our theory of the Constitution, which is that the president is a dictator. And we talked about this with Judge Sugarman and Sam Baganstoss, and, like, the John Roberts opinion in the slaughter case sort of embracing the unitary executive, crushing every independent agency except the Federal Reserve. He's like, here's my theory. The president gets authoritarian control over the entire executive branch and large laws of the government that we did not previously believe to be in the complete control of the executive branch because we think that's what's good for America. Like that is our theory. And so it's interesting how like the right does this already. The right is saying, here's our vision of what the Constitution is supposed to guarantee, and we're going to interpret these sort of vague and very broad and imprecise constitutional provisions in line with that. But the theory is not one that a majority of Americans agree with or embrace. Most Americans do not think that the president doesn't have enough power, that the real problem today is that we aren't giving the president enough power over the government, but six justices do. And so that becomes the law. And I think that sort of leads me into me. my next question, which is maybe sort of the heart of it, which is in your column at the end of this most recent term, you distinguished between the Supreme Court's power to say what the law is after Marbury v. Madison, and you say that's limited to cases or controversies, as Article 3 of the Constitution explains. And then... constitutional meaning, which you write is as much the purview of the public as it is the job of a jurist. We've been talking about this. We've been sort of leading up to it. Can you walk me through the ways, though, that the people and not the courts do the latter work of making constitutional meaning up to and including today? Yeah, I mean, some of that is through just ordinary politics, right? People who assemble and gather and demand their right to vote, who demand their right to marry who may please, who demand their right to express their gender however they'd please, right? That is making a constitutional claim. Like putting those demands in terms of rights and then like assembling and protesting for them is making a constitutional claim. It's saying that our constitution protects these rights. The Constitution may not mention those rights, but those rights are there. And we understand ourselves to have them. You mentioned the black conventions earlier and a discussion with David Gantz. I mean, that is all over the language of those. convention notes, if you just like read through them. And I've read quite a few at this point. And the column you're citing, I'm sort of building off of that. What you see in all of those are.

claims about rights that black Americans have that maybe you cannot find in the text, but they are asserting by virtue of being born in the United States by virtue of their connection to the country itself, right? They live there. They work there. That's where their identity is. By virtue of, you know. We don't really use language of natural rights anymore, but by virtue of their natural rights. All these things are saying, these are the rights we have. We have the right to move freely. We have the right to own property. We have the right to engage in economic life as we see fit. We have the right to vote. We have the right to have our civil rights protected. And although this isn't written in the text of an amendment, it's clear that these rights are inherent to being an American and we have them. And so I think part of... creating constitutional meaning. It's just this act of like assertion, political assertion. These are things we have. You mentioned at the beginning of our conversation the way that you can see this dynamic in the gun rights movement and sort of like irrespective of how you feel about the proliferation of firearms. I'm not too happy about it. It is a really good example of how one asserts and essentially creates constitutional rights that organize gun owners. began asserting that, yes, the Constitution defends my individual right to own a firearm and to use that firearm in however peaceable manner as I see fit. And that doesn't just persuade powerful people, but it persuades, like, lots of ordinary people. It feels commonsensical. It feels connected to longstanding traditions of American life. And the Supreme Court recognizes it. Like, I don't think Heller is a particularly good opinion, but I also feel for me, hard pressed to say that, like, at the end of the day, is it wrong? Like, it does actually seem like Americans have an individual right to bear arms, irrespective of what the Second Amendment says. And I don't know. That to me seems like a product of, or it doesn't seem to be, it is a product of Americans kind of like asserting that this is a thing that we have and persuading people that this is a thing that they have. In terms of what does it look like to create constitutional meaning, it is just like asserting and saying this is the case. And of course, then it's sort of like, you know. people, academics and jurists and journalists and all sorts of people begin sort of taking those claims and trying to understand them. If they agree with them, trying to develop arguments for supporting them, if they oppose them, and so forth, like all these things emanate from this. But I do think the foundation is kind of an act of ordinary politics. And I think my, and this has been my refrain in our conversation, but I do think that. The big thing I'd like people to take away is that the question of what the Constitution is and what the Constitution means is like fundamentally a political one that's fought out in the political arena. It's fought out in the partisan arena. It's actually not disconnected from ordinary on the ground politics. It's very much a part of it. And the extent to which you disconnected from ordinary on the ground politics is the extent to what you give that away to.

people like the nine justices on the Supreme Court. It's so interesting, Jamel, because again, you're echoing something I heard from Professor Larry Kramer in our first episode, which is that the big shift that needs to happen is actually an imaginative one. Like, it is weirdly, this is not a huge structural left. All the power is there. All the tools in the toolbox. are there and have been deployed before, right? We just, all we need to do is look at the historical examples you've given and we've cited. And you can see that this is just muscle memory that's gone. And so what's very, very weird is that you are urging people. I'm thinking of like the, you know, Disney movie Dumbo that I grew up with. Like, you have these huge flappy ears just fly. And like they already have the big flappy ears. And it's so weird that. You know, I want to make one distinction that I've seen you make in writing, and Mark and I have been at pains to make it in this series, which is nobody here is arguing that the way you make constitutional meaning is you say the Constitution says what I think it says, right? If we could all do that, then Donald Trump could do it too, which is what his theory of executive power is. So nobody's saying that, but I think what we are saying and what you are reflecting back, and I think it's so important, is that this is a... about boring systems and processes. It's about legislative processes and judicial processes and amending constitutions and state constitutional protection. All of that is available to us. And yet I still think that when you ask people to flap their big floppy ears and fly, that seems really abstract. And so one of the things that we've kind of honed in on on the show and just this year is something you just flicked at and I'd love for you to amplify, which is like, no, those people at No King's rallies are making like muscle memory constitutional arguments. Like those people filing habeas petitions on the streets in Minnesota, like they're making constant, like we know how to do this. And I'd love one more beat from UChemel on the degree to which we already know how to do this. Yeah. No, I think the No Kings protest is such a great example of this, right? It is. The name of the protests, it's like making a constitutional claim, right? Like, we are not a system that has unaccountable power. And this is expressed in partisan terms, but it's fundamentally a recognizable constitutional claim. It's the 250th. It would have been recognizable to Americans in 1776, the exact kind of nature of the claim being made. And in 1776, they would have been using the language of this violates our Constitution. This violates the British Constitution. Our rights is Englishmen, that kind of thing. This arbitrary authority violates rights that we think we have. And we either want to redress for that or we need to have some sort of fundamental change to the political world in which you live.

But I think that's exactly right. It's not so much that people are filing amicus briefs at the No King's rallies, but they are in this collective gathering of millions of people. They are making a claim about the nature of the society in which they live, the nature of the political world in which they reside, and they're discontent with it. And it is tied up in sort of a fundamentally constitutional claim, a claim about like the structure. of political society. And you're right to sort of clarify that this isn't about making up whatever, right? It's much more about like there is a role here for text, for connecting things to the text, for connecting things to the history, for saying this. is in line with our political traditions. This feels like a stretch of a reading of the text. We can see these ideas here in the construction of this particular text. We can't see those ideas there, that kind of thing. But all of that is in relationship with political action and political activity because ultimately it's just words on paper and the words are given meaning. by how people relate to them and how people try to deploy them in their everyday life. This is like a bit of like a more arcane example, but like in the early 19th century, you know, the Constitution gives Congress broad authority over commerce. No one knows with that, but what is commerce, right? No one knows what that means. And there's a bunch of case law just trying to figure out what is it that commerce means. And a lot of this is just figured out in the breach. It's figured out by states attempting to regulate canals. It's figured out in, you know, tolls, you know, taking tolls coming out in New York, coming in here in New Jersey, and we're going to take a toll. Does this, can we legally do this? All these things are happening. And as. Political actors do things they think they have the right to do as the federal government responds, as the courts respond, you get the construction of constitutional meaning. You get something there that is stable and sustainable. And in the same way, the public saying, For example, with the no king's rallies, we do not think that unaccountable executive power is a part of our political system. This is going to be picked up by legislators who may try to turn this into some kind of legislation, which then gets litigated in our political system, in the courts and such, and we come to some sort of like settlement as a result of that. It's this bottom up process. I think it's important for ordinary people to recognize that this bottom-up process works for all kinds of issues, all kinds of stuff, all kinds of things. You know, you mentioned state constitution Stahlia. It can happen at all kinds of levels, right? Sort of the emergence of...

direct election of senators, which ultimately enables constitutional amendment, is happening at like a state-by-state level. It's like a thing that people are doing that eventually becomes part of the overall constitutional settlement. Organizing and try to change your state constitution to create more robust rights to bodily autonomy, creates expectations of what the federal constitution ought to protect, creates political momentum, and does begin to shape overall meaning. One thing I feel like I've been dancing around here, and I should just say explicitly, is that like, The famous distinction between the American Constitution and the British Constitution is that ours is on paper and theirs is not. But like a lot of ours isn't on paper either. A lot of what we think of as the Constitution is really just sort of like a set of, I hate this word, norms and a set of larger conceptions that we say are in the document, but are really just sort of like accumulated through process and action and activity over the course of 250 years. And I think part of what I'm trying to say is that making constitutional meaning in a lot of ways is identifying those things that are kind of in our constitutional miasma and then saying, no, really, they are in the text and connecting them to the text in a way that becomes legible and accepted among the broad public. So I just, I do have to add one footnotes, which is that the constitutional definition of commerce that we developed through the 19th century is stable unless Clarence Thomas gets his way and five votes to overturn it and return us to the most sort of impoverished parsimonious understanding of the Commerce Clause imaginable, which is part of the danger of giving. nine judges or really five judges, a total veto power over like the broader American conception of constitutional terms, right? Yeah, yeah. We're pausing to hear from some of our sponsors. And when we come back, Guns, the Popular Will, and Jamel's court reform wish list. When we were kids, summer meant freedom. No homework, no teachers, no school. And as adults, summer still means freedom thanks to Mint Mobile's summer sale. Right now, all of Mint's plans are $15 per month, even unlimited. So free herself from big wireless and their gimmicks and gotchas and switch to Mint for high speed data and coverage on the T-Mobile 5G network. It's super easy to make this switch. Mint Mobile took what's wrong with wireless and made it right with premium wireless for $15 a month. All plans come with high-speed data and unlimited talk and text delivered on the nation's largest 5G network. You can even bring your current phone and your number. Choose from three, six, or 12-month plans and say goodbye to a monthly bill. Ditch overpriced wireless with MintMobile. It's so easy. To get your new wireless plan for just $15 a month, go to mintmobile.com slash amicus. That's mintmobile.com slash amicus. Cut your wireless build of $15 bucks a month at mintmobile.com slash amicus. That's it. There's no catch. Up front payment of $45 for three months, $90 for six months, or $180 for 12 months. Plan required. $15 per month equivalent. Taxes and fees extra. Initial plan term only. Greater than 50 gigabytes may slow when the network is busy. Includes up to 20 gigabyte hotspot.

Available device required. Availability, speed, and coverage varies. See mintmobile.com. This episode is brought to you by BetterHelp. You've heard me talking about the benefits of therapy and about BetterHelp for a while now, and you might be considering online therapy, but maybe you're also wondering, what do people think of the service? Well, you can find out for yourself by going to BetterHelp.com slash reviews to read customer reviews in real time. These reviews are updated every single day with hundreds of people dropping by to say how much they love BetterHelp and how helpful it's been to them. More than 6 million people have used BetterHelp globally and the consistent feedback from real users makes it easy to see why so many people continue to choose Better Help as their online therapy service. And finally, it's really easy to get started. Answer a few questions, get matched with a therapist based on your needs and switch therapists at any time if it's not the right fit. See the reviews, see what stands out, and see if BetterHelp is right for you. Visit betterhelp.com slash amicus. That's betterhelp.com slash amicus. Welcome back to Buy the People on Amicus. Our guest is Jamel Bowie. This is episode four. Now it's your turn. Or use those big flappy ears, people. You mentioned Heller, too, and I want to go back to that. We've talked about it on this show. We've already talked about it today. This is the 2008 decision establishing an individual right to bear arms. I think that one of the tricky parts in thinking through popular constitutionalism is what to do with Heller, because it is, as you said, and as you've written before, the kind of formalization of the popular idea that the Second Amendment confers personal gun rights. What is your answer to the fact? that popular constitutionalism doesn't always get you progressive results, that this doesn't fall along a neat sort of left-right axis. Is that a problem, or does it really sort of legitimate the theory by showing this is not a partisan theory, this is something deeper? I think it legitimates the theory, and I think that the answer to it is has to be politics, right? It has to be political contestation, right? Popular constitutionalism can lead you to a second amendment, like a formal individual right to bear arms. But it doesn't apply a ton about the extent of that right, about the ability of people to regulate it. Let me put this more precisely. A large part of the problem. with a constitutional order entirely structured by the Supreme Court is the court has this tendency. I think we've mentioned this to want to just sort of have the final, final word to say this is what it is, you know, period. And I think that we have to become much more comfortable with our constitutional order being one in which there are broad.

settlements, but often the details of those settlements are still up for political contestation, the extent to which something is one way or the other. And so could you confiscate guns? Probably not under this vision. But you would still have a lot of leeway to do the kind of regulation that people would find politically acceptable. Our conception of liberty today is, you know, liberty is when you are free from government. influence, free from government coercion and force. But the founding irreconception of liberty was a little different and it was tied up in their obsession with representation. People take no taxation without representation as just sort of like a fun slogan, but they were obsessed with representation. That was a critical question. If you just think of that phrase, no taxation without representation and take it literally, it's not an anti-tax phrasing. It's very much no taxation unless I have representation. Next dot, if I have representation, therefore I can be taxed. And then you can kind of, we can like debate about that, the extent to that. For the founding generation, Liberty was very much tied in to your ability to kind of say no. If you can say no, if you're represented, if you're properly represented and that representation bears on the outcome, then even if the outcome is coercive, it's fair. Like your liberties haven't been violated because you got a chance to say no, you lost the vote, what have you, and you move on. I bring that up because I do think that when thinking about how he should relate to the Constitution today. A politics first way of thinking about it would put a heavy focus on this vision of liberty as being primarily about representation, right? Like fair representation and a fair political system, I think, legitimates all kinds of political decisions people might make. The chance that you lost this vote, you could win the next vote, legitimates all kinds of political decisions people can make. And that ends up being the safeguard, the fact that we have full and robust representation. Because I do think that when you start talking about a more politics forward way of thinking about the Constitution, people want to safeguard. Like I think the attractiveness of judicial supremacy is that it feels like a safeguard. You have like this final. stop. And it feels much more, it feels scarier to say that actually the final stop is just going to be us, going to be what we decide. And I would say on the main, if you look at American history, ordinary people have done a much better job of defending their rights than judges have. That ordinary people and that political majorities have actually been a much more reliable defender of a broad set of rights than courts have been. But that's a kind of separate quid. Now, I actually love that you're landing on this kind of hydraulic dynamic, you know, like it needs to be a two-step because that is where freedom lies and that there is a certain amount of.

certainty that says, well, Supreme Court said we had to send all these folks back to Haiti, so what are we going to do? Like, it means we can, you know, go shopping. But I think that what you're saying is that to continuously end the conversation there is to, again, put away the one massive tool that you have at your disposal, we can't let you go without talking briefly about court reform, Jamel, because we've been snarking about it as, you know, this is... seems to be when we get all our angry listener emails and they say clearly the only thing to do is court reform. And, you know, I think Mark and I both feel as though there is so much more to do. But court reform is certainly part of the suite of things we can do. And as you suggested earlier, a robust Congress could and should be thinking about that. And I just want to quote you back to you for one little second because in 2021 you wrote, I do not write about structural reform because I believe it will happen in my lifetime, although, of course, no one knows what the future will bring. I write about structural reform because I want to think expansively about and I want readers to think expansively about American democracy to understand that it is and has always been bigger than the Constitution. So I would love given that we have... assiduously avoided talking about court reform other than as kind of a punchline in this show to hear what your dream structural court reform program looks like because It has to be a part of the political conversation you are urging us to get involved in. Yeah. I mean, my dream court reform, the thing that I really do not think would ever happen, but I think is a good idea, would be to make the Supreme Court literally just a court that deals with its remit as spelled out in the Constitution, which is like a handful of things, right? Sort of like disputes between states, disputes involving diplomats, impeachment trials, et cetera, et cetera. shrink its jurisdiction to remove everything but what is specified in the Constitution, and then create a new National Court of Appeal, which is filled by judges on the various courts of appeal on a rotating basis, and that every year you get picked, you know, there's maybe, let's say, there's one judge per circuit, maybe two judges per circuit. Let's say we have. 15 circuits now, two judges per circuit, 30 judges on this court, plus one. So it's an odd number. And this court of appeals doesn't have very much control over its docket. It just gets what it gets. And it does the appellate work that the Supreme Court now does. I like this. Because I think part of the structural problem with the current Supreme Court is it's static. It's nine people, same number for long, for 10, 20, 30 years. And because it's static, because it's unchanging and because it's so powerful, it's an irresistible incentive to try to game.

to try to figure out a way to secure kind of permanent or as permanent as is feasible control of it. I'm like a Madisonian at heart. And one of Madison's great insights is that size helps diminish the effects of faction. And that if you just have more people vying for something, you have essentially more randomness. And the randomness kind of prevents. what we would describe as tyranny of the majority or what we describe as sort of a tyranny of faction or something like that. Essentially enlarging the court and then making it more random so that like you just cannot predict who you're going to get to eliminate the incentive of trying to game the system of trying to control it. That would be my dream reform. Stipulating that's probably never going to happen. Path dependency is a thing. Probably not going to happen. What I think should be done is I do think this is maybe a little more partisan ideological in my part. But I do think that the how the court has been shaped over the past decade, right, beginning with the Mitch McConnell Senate's unprecedented decision to refuse a hearing all the way to the about base after Ginsburg's death and then like quickly confirming a justice to. fill that seat. You know what? All is fair and love and war in politics. So, you know, you do what you got to do. But on the flip side, I think that does mean that it's entirely legitimate to say, we just want to nullify the effects of that. And so we're going to nullify the effects of that by expanding the size of the court and adding a couple of new justices. In addition to that, though, I do think there's like a perfectly legitimate technocratic reason for wanting to expand the entire federal judiciary, which hadn't seen a major expansion since 1979, despite the country having a third more people. And in a nod to the importance of just like having more people to randomize things a bit, I think my more feasible set of court reforms or judiciary reforms just be a huge expansion of the federal judiciary, more districts, more circuits. more judges along with the expansion of the Supreme Court. On the Supreme Court level, I think it should receive a little less. Maybe not a little less control over its docket, but like you have to, no more shadow docket, you know, the emergency docket, Congress should define what the emergency docket consist of and what it requires. I think that the court should lose its control over picking its own clerks. I think that should go to some sort of like body not attached to the Supreme Court. The extent to which clerkships are kind of this patronage game, I think adds to. both the mystique of the court and like it's just bad for accountability, meaningful ethics reform, all these sorts of things that sort of like, you know, if the court's going to have this veneer of professionalism, well, let's make it professional kind of deal. Let's take away all of the vestiges of a more patronage-based era. So that's what I would do. But I think my big thing is just like,

more people and really pulling off the band-aid of this kind of expansion. I think a lot of people see this as a point against court expansion. But to me, knowing that it can be done actually maybe make it a little less likely that it happens again, right? Okay, what if Republicans do it? Okay, then we'll do it again, right? You'll come to an equilibrium at a certain point. And if that equilibrium is like 40 justices, okay, well then my national appeals court idea becomes way more viable and I'm a happy camper. Jamel Bowie is a proud dog father and a columnist for The New York Times where he offers historical context for present day events and he is our former colleague here at Slate. Jamel, thank you so much. Thanks, Jamel. I think you're muted. Oh, sorry. Thank you so much for having me. Boom. I can't believe we left the dog barking in there. Listen, this is by the people, but sometimes it's with the pops too. So here we are. We've been on a journey through these four episodes. But as you and I hinted at the top of the show mark, this is not actually the end of the road. No, because we meant what we said in the title of this episode. Now it really is your turn. After years. and really years of emails and letters from listeners and hours of podcasts and hundreds of thousands of words spilled saying, what can we do about it? We have tried to outline in this series that the answer to that question is a hell of a lot. So we want to hear from you. Tell us what you're doing in your life to assert ownership of the Constitution. Where and how are you making constitutional claims? What are you doing to expand fundamental freedoms to include you, your loved ones, and your neighbors? Write to us at amicus at slate.com, and we are going to gather your stories and maybe even be directly in touch with you for a very special event that's coming in September. Maybe your story is something like attending a no king's rally, painting a banner, taking your kids or grandkids or cousins to their first public expression of their First Amendment rights. It could be pro bono work on the streets supporting habeas corpus claims. Or telling your elected representatives or primary candidates vying for your vote why court reform matters to you. We want to hear your stories big and small. It's a little bit of buy the people homework for you to do over the summer. Let us know what you think. Do not sit this out. Or sit this out, but then no more emails asking us, what can I do? Okay? That's the deal. The question is, what can't I do? Write to us at amicus at slate.com to be part of by the people's next chapter in September. And that is all for this episode. But Amicus Plus members, let's head on over to the Amicus Plus bonus episode for an announcement from Mark Joseph Stern and a dear jurisprudence rummage through the mailbag. If you're not a Plus member, did you know that Plus Cateers can just write to us and we answer their questions? And to be sure, Mark is a truly spectacular legal advice columnist.

Okay, but disclaimer, this is not actually legal advice. It is more like sharing our existential constitutional angst. Today's mailbag includes whatever happened to emoluments, where do the Supreme Court's originalists get their fake facts from, and who really writes Supreme Court opinions? Visit slate.com slash amicus plus to join Slate Plus. By becoming a member, you unlock so many benefits. Add free listening and paywall free reading at Slate.com. You can binge our Buy the People package of essays and episodes. You can also listen to exclusive bonus episodes of Political Gab Fest or get early access to our Big Swing series. You can also play Slate's games. Our supervising producer, Sarah Burningham, is newly addicted to our new game soundbites. But most important, your support enables us to do the work that we do. And this place runs on memberships. And we are ever, ever so grateful to our supporters. Join us, slate.com slash amicus plus. You can also subscribe to Slate Plus directly from the Amicus Show page on Apple Podcasts and Spotify. Our bonus episode is available for you to listen to right now. We'll see you there. Sarah Burningham is Amicus's supervising producer. Our producer is Sophie Summergrad. And we had production help again this week from Joel Meyer. Hilary Fry is Slate's editor-in-chief, Susan Matthews, as executive editor. Mia Lobel is executive producer of Slate Podcast. And Ben Richmond is our senior director of operations. Next week, I'll be introducing episode one of becoming Justice Gorsuch. Until then, take good care.

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