How Our Constitution Works ... And Why It Doesn’t

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Exploring the US Constitution with a critical eye looking forward and back with author, lawyer, and syndicated columnist William Cooper and Pulitzer Prize-winning American legal historian Ed Larson. Ed: law.pepperdine.edu/faculty-research/edward-larson Will: will-cooper.com

  1. 2d ago

    Nina Totenberg on the Shadow Docket, Polarization, and American Civility

    In this episode of How Our Constitution Works… And Why It Doesn’t, co-hosts William Cooper and Edward Larson sit down with legendary legal correspondent Nina Totenberg. The conversation dives into the structural and cultural friction points in modern American democracy, exploring how societal polarization, the collapse of public discourse, and the dramatic expansion of the Supreme Court's emergency docket—commonly known as the "shadow docket"—are reshaping the rule of law. Totenberg offers candid observations on the shift toward a 6–3 conservative majority, the historical origin of religious monuments in public spaces, and why the breakdown of civil restraint poses a direct challenge to the constitutional order.

  2. Oct 14

    Minoritarian Rules: The Senate, Malapportionment, and the Electoral College

    In this episode of How Our Constitution Works ... And Why It Doesn't, hosts Edward Larson and William Cooper explore the counter-majoritarian structure of the U.S. Senate, the filibuster, and how constitutional design intersects with modern governance. Key Episode Highlights The Framers' Context vs. Modern Reality: Co-host Edward Larson outlines how the U.S. Constitution was written for a smaller, pre-industrial nation of isolated states where most of the population lacked voting rights. He discusses how the Senate was created to protect small-state interests, making it one of the most malapportioned legislative bodies in the democratic world today. The Filibuster Debate: William Cooper reflects on the tension between legislative efficiency and the founders' desire to prevent rapid overreach. The hosts examine how the 60-vote threshold affects lawmaking and judicial confirmations, noting how changes to filibuster rules for judicial nominees have led to more partisan Supreme Court appointments. Institutional Gridlock and Presidential Power: Larson argues that when Senate rules prevent Congress from passing legislation, executive orders and judicial rulings expand to fill the void, undermining the rule of law. State Identity and Candidate Character: Despite its structural flaws, Larson highlights a key strength of Senate races: because they are statewide elections, voters often focus more on candidate character and statewide issues than purely on national party lines.

  3. Oct 2

    The 3-3-2-1 Court: Deciphering SCOTUS, Standing, and Executive Power with Zachary Shemtob

    In this episode of How Our Constitution Works and Why It Doesn't, hosts William Cooper and Edward Larson sit down with Zachary Shemtob, executive editor of SCOTUSblog, for a deep dive into the historical origins, modern perceptions, and institutional limits of the Supreme Court. The discussion traces the evolution of the Court’s role from the Founders' original expectations to its current position, exploring why public approval has hit record lows and addressing popular narratives surrounding the Court's perceived politicization. Shemtob breaks down the current ideological dynamics among the justices—characterizing it as a "3-3-2-1" court—while analyzing the expansion of executive power, the strict enforcement of legal standing, and the debate surrounding judicial term limits.   https://www.scotusblog.com/author/zachary-shemtob/

  4. Sep 25

    The Major Questions Doctrine

    A stimulating conversation with Yale law professor William Eskridge, one of the most-cited legal scholars of all time.

  5. Sep 24

    Independent Agencies

    On the latest episode of How Our Constitution Works … And Why It Doesn’t, we discuss whether, and to what extent, executive agencies can operate outside the president’s control. It’s a complicated and fascinating question, and the subject of a pending decision before the high court. The independence of the federal reserve—essential to economic stability—is at stake.

  6. Sep 24

    The Courtroom Tapes: Inside the High Court Clash Over Executive Tariffs

    Here's the argument in the case in which the high court struck down dinald trump's tariffs.No commentary, no spin—just the raw, unedited oral arguments from Learning Resources v. Trump, where the United States Supreme Court tested the outer limits of presidential power. ​Listen in as Solicitor General D. John Sauer defends President Trump’s use of the 1977 International Emergency Economic Powers Act (IEEPA) to levy sweeping global tariffs, facing intense interrogation from across the bench. Then, hear veteran advocate Neal Katyal and state attorneys argue on behalf of American businesses, claiming the administration launched a peacetime tax shift without congressional approval.   ​What You’ll Hear in This Episode (Key Audio Chapters): ​Chapter 1: The Government’s Defense (D. John Sauer for the White House) ​The Core Argument: Watch how the government relies on broad verbs in IEEPA—specifically the power to "regulate importation"—to justify using tariffs as a tool of modern emergency statecraft.   ​The Cold Reception: Hear Chief Justice John Roberts and Justice Sonia Sotomayor grill the Solicitor General on a basic constitutional point: Where in the statute does it actually say "tariff"? ​The Power Grab Question: Listen to Justice Neil Gorsuch push back on whether accepting the White House's theory creates a "one-way ratchet" that continuously strips taxing authority away from Congress.   ​Chapter 2: The Challengers Strike Back (Neal Katyal for Private Businesses) ​"Tariffs Are Taxes": Neal Katyal takes the lectern to frame the issue in strict Article I terms. Hear his pitch that no president in U.S. history has ever claimed emergency authority to tax the entire world without explicit statutory permission.   ​The History Test: Listen to Justice Brett Kavanaugh press the challengers on historical precedent, asking where the boundary lies between legitimate trade regulation and an unconstitutional tax. ​Chapter 3: The States & Rebuttal ​Benjamin Gutman for the States: State attorneys make their case on the direct economic impact and jurisdictional limits of emergency executive declarations. ​Final Rebuttal: The government’s closing attempt to convince the justices that national emergency powers must remain flexible in an increasingly hostile global trade landscape. ​Featured Voices in the Room: ​Chief Justice John Roberts & Justice Sonia Sotomayor pressing on the Constitutional separation of powers and the taxing clause. ​Justice Neil Gorsuch probing the Major Questions and Non-Delegation doctrines.   ​D. John Sauer (Solicitor General representing the President). ​Neal K. Katyal (Lead counsel representing Learning Resources and private importers).     Thank you.

  7. Sep 22

    Why Your Right to Speak Freely Has Always Been Under Attack—And Why It Matters More Than Ever

    In this compelling episode, William Cooper and Ed Larson explore the turbulent history of free speech and free press in America—from the Founding Fathers' vision of press freedom as a "bulwark of liberty" to today's battles over media access and truth. Discover how the same government that enshrined free press in the Constitution also passed the Sedition Acts to silence critics, and learn why the landmark Times v. Sullivan decision changed everything for journalists and public figures. But here's the twist: despite centuries of progress, we're still fighting the same battles. Whether it's Nixon threatening broadcast licenses, modern administrations banning reporters, or authoritarian playbooks being dusted off for the digital age, the threats are real—and they're bipartisan. Will and Ed make a passionate case for why robust First Amendment protections aren't just important—they're essential to preventing any single worldview from capturing reality itself. The good news? We may be entering a new golden age of diverse voices, eerily similar to 1800 when competing newspapers battled for hearts and minds. From podcasts to social media, the gatekeepers are gone. But will we protect this freedom, or watch it slip away? Tune in for a thought-provoking conversation that connects America's founding ideals to the fights happening right now.

  8. Sep 21

    Harvard Law Professor Rebecca Tushnet

    We discuss her work in free speech and her contribution to Harvard Law's new book, America Unfinished. https://hls.harvard.edu/faculty/rebecca-tushnet/ https://hls.harvard.edu/america-unfinished/

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Exploring the US Constitution with a critical eye looking forward and back with author, lawyer, and syndicated columnist William Cooper and Pulitzer Prize-winning American legal historian Ed Larson. Ed: law.pepperdine.edu/faculty-research/edward-larson Will: will-cooper.com

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