In part two of Unwritten Law’s conversation with John Malcolm and Professor Josh Blackman, hosts Mark Chenoweth and John Vecchione explore the deeper substance of The Heritage Guide to the Constitution, Third Edition. The group discusses Justice Samuel Alito’s foreword, the “Mount Rushmore of Originalism,” and the evolution of constitutional thought from the Founding era to today. From the confrontation clause to the 27th Amendment, the conversation highlights surprising insights and little-known historical details that shaped our understanding of America’s founding document.

A must-listen for anyone passionate about originalism, constitutional history, and the ongoing effort to keep the meaning of the Constitution alive and clear.

Mark Chenoweth: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, just a average citizen, you are unknowingly going to fall under vague and unofficial rules. And when bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed. Welcome to Part 2 of Unwritten Law’s special podcast with Mark Chenoweth and John Vecchione about The Heritage Guide to the Constitution, the fully revised third edition. We are talking with the Heritage Foundation’s John Malcolm and Professor Josh Blackman.

So, we’ve talked now about sort of the mechanics and the production and some of that. I wanted to shift now to talking about some of the substance of what you’ve produced here in this volume and maybe start with the preface by Justice Alito. I was taken by a couple of things in the preface, one that’s maybe of little more personal interest to me.

But the thing that I think will be of general interest, he talks about the Mount Rushmore of originalism. And he lists Ed Meese, and he lists Robert Bork, and he lists Antonin Scalia. And it’s just begging for the fourth name, which he doesn’t give. And so, I wanted to ask each of you: Who would be your fourth name that you would submit for the Mount Rushmore of originalism?

John Malcolm: We’ve written another article in which we suggest that Former Chief Justice Rehnquist ought to be on that list. He certainly was talking about originalism and cared about originalism. I’m not so sure I would add him or Clarence Thomas to that list. I would lean towards Justice Thomas, ‘cause I think there were certainly opinions in which Rehnquist tilted towards originalism and others in which he was more pragmatic and wasn’t tilting towards originalism. I would probably add Clarence Thomas to that list because he’s also the purest originalist, and he remains that today on the court.

Mark Chenoweth: Josh, how about you?

Josh Blackman: I agree. I think Rehnquist was the OG, sort of set it up in the ’80s, and then Clarence Thomas is taking it to the present. So, maybe we’ll have five faces in that mount. We don’t need to have four. We can do five.

John Vecchione: Yeah, the John the Baptist of originalism, not, you know. And I’m sure Justice Rehnquist would love that. Anyway. So, I think it’s gotta be Thomas. Don’t you?

Mark Chenoweth: I would think, but I wasn’t around for early Rehnquist. My knowledge of Justice Rehnquist is ’95 to ’05, I guess, something like that. So, I mean, obviously, I’ve read some of his older decisions. But Clarence Thomas, everything you read by him is originalist. And sometimes, he revises his former views based on new originalist scholarships and things like that. And he came on the court in ’91. That’s not that long after Rehnquist became chief justice.

John Malcolm: And he just celebrated his 34th year on the bench I think yesterday or the day before.

Mark Chenoweth: Is that right?

John Malcolm: Yeah.

Mark Chenoweth: Marvelous.

John Vecchione: So, my question – I wanna move forward a little because I think it might be interesting, ‘cause we also talk about the Federalist Papers. You just listed the things from the founding, but let’s go to the progressive era. And I was thinking of the taxing amendment, some of the amendments that came around in the Woodrow Wilson period that none of us are very fond of, but you still have to approach them in an originalist way. Who did those?

John Vecchione: There you go. That’s good.

And then we talked about: What were the debates in Congress when they were being drafted? And for the most part, there weren’t many ratification debates. It wasn’t like the same way we have Farrand’s Records. We discuss those where available. One of my favorites was actually John Feerick, who wrote the 25th Amendment. I mean he actually wrote the amendment. He wrote our essays. But he is about 93 years old, like Judge Newman, and he’s still on top of his game. And he was the dean of Fordham, and he helped basically draft the 25th Amendment. And he wrote other essays. And he’s one of my favorite authors.

Mark Chenoweth: That’s a great get.

Josh Blackman: You’re in your 90s. You’re more attentive than most of my authors in their 40s. So, good job. You’re on top of your world.

Mark Chenoweth: Less distracted perhaps than the other options. I wanna come back to the Alito preface, ‘cause there was a second thing in there that I was taken with, which was: He mentioned that when he was at the Department of Justice that he had written something for his superiors about the Confrontation Clause, and it was from an originalist perspective. And they had said, “Well, this won’t be very persuasive with the court. You should probably revise it in such and such a way.”

And so, he did, and I guess they prevailed on the particular issue. And then he says, “Well, no one today would say don’t present an argument to the Supreme Court from that perspective.” But I wanted more there. I was really curious to hear: Okay, what was the originalist argument you made? Which part of the Confrontation Clause was this about? And what was your subsequent argument?

Josh Blackman: Filibuster, I’ll look it up. I actually have the case. Let me look it up. I actually researched it, and I figured out what case he was talking about.

Mark Chenoweth: Oh, you did, okay.

Mark Chenoweth: Yeah, I’d love to know.

John Malcolm: And you can also look at sort of competing views on the Confrontation Clause by Justice Scalia and Justice Alita, not Assistant Solicitor General Alito or in the office of OLC. But he has certainly written about it and taking issue with Scalia’s view of the Confrontation Clause in opinions. And you’re right. I mean at the time that he was there, I’m sure that there were people sitting there and saying, “Well, your originalist argument is really, really nice, but I need to count to five. We need to get five votes, and this is the argument that will prevail.” And it’s been heartening.

So, what you used to see were people weren’t making originalist arguments at all, or what they would say is ... Then it would evolve to, “Well, we have an originalist argument, but if you’re really not into it – And here is that argument. But if you’re not interested in that, here are all the other reasons that we should win.” And now they –

Mark Chenoweth: Just to get the Scalia or the Thomas vote. Right?

John Malcolm: Right.

Mark Chenoweth: Just a little addendum or something.

John Malcolm: And now originalist arguments are front and center, and that is a wonderful thing.

Mark Chenoweth: Yeah, no, for sure.

Mark Chenoweth: Fantastic. Well, it gives me some more research to do. Back in ’06, ’07, I wrote a Confrontation Clause piece for the Cato Supreme Court Review. There were like nine Sixth Amendment cases that decided that term. So, I wrote a piece for that and have been very interested in the confrontation clause ever since. But any favorite nuggets, John or Josh, anything that you learned through the process of reading some of these essays along the way?

John Malcolm: Oh, gosh. You know it’s hard to pick out any single one. ‘Cause after you read these things, 1.) After you go through 213 essays, and you’ve read them each two or three times, you don’t wanna read them again. But not even, I got something out of each one of them. I mean hearing about where people were agreeing and disagreeing and watching how language changed or in the Constitutional Convention what the significance was and the arguments behind I thought was just fascinating. And I really think that just about every one of these essays has a nugget like that.

Mark Chenoweth: Yeah. How about you, Josh? Was there one that stands out?

John Malcolm: Hey.

Mark Chenoweth: Oh, that got really important this year.

Josh Blackman: Well, maybe not interstate but –

John Malcolm: No, the tonnage clause, things like that.

Josh Blackman: Import/Export Clause, the Tonnage Clause, these are provisions that we don’t care about that the framers were very much worried about them. And I guess it shows that when you have a Constitution that endures, what’s in the Constitution is there forever. We’re stuck there, and we sort of never forget the things that really matter to those who framed it. You know I’m looking behind your head. It says, “Unwritten Law.” And there’s so much about the Constitution that wasn’t actually written down.

There are these common law understandings going back to the times with Blackstone and Coke’s commentaries otherwise. And the framers were so well versed in this body of law that we just don’t have. And I love that this book really brings to life what the framers have understood about all parts of the Constitution. And it’s hopeful that maybe we can restore that spirit of knowledge and that spirit of inquisitiveness to what came before us.

John Vecchione: What I always say is when anyone says that it’s a living Constitution, they’re about to kill an important part of it. But I take strong umbrage with – I’ve just been immersed in the duties and tariffs clauses because I’m doing a amicus brief.

Josh Blackman: Fair enough. Fair enough.

John Vecchione: But actually, what I’m gonna turn to as soon as I get the opportunity is the most recent amendment, because it was framed back in the framers’ day, and it was only ratified recently.

John Malcolm: So, there’s a fascinating story behind that.

Mark Chenoweth: You’re not talking about the Equal Rights Amendment?

Josh Blackman: No.

John Vecchione: I’m talking about you have to have – So, I forget the number now, but it’s –

John Malcolm: Twenty-seven.

John Vecchione: Twenty-seventh. It’s ...

John Malcolm: It has to do with compensation in Congress, and it’s actually ... People correctly refer to the first 10 amendments as the Bill of Rights. But at the time, there were 12 amendments sent to the states for ratification. Two of them never made it at the time. It was a student at a Texas university who in the late ‘90s wrote a paper that said, “Well, there was no time limit for ratification of the 27th Amendment. It’s still a live issue.”

And his teacher said, “This is ridiculous,” and gave him a C. And he then made it his life’s mission to prove the teacher wrong. So, he began pressing states to ratify the 27th Amendment, which they did. And his school invited him back and officially changed his grade from a C to an A. It was –

Mark Chenoweth: That’s better than an honorary degree. That’s great.

John Malcolm: Two hundred and two years and seven months after it had been sent to the states for ratification, the 27th Amendment.

Josh Blackman: Right. But at later states, who knows what they said? And they’re ratifying. Anyway, it’s a very interesting originalist problem.

Mark Chenoweth: But the ERA did have a limit on when –

John Malcolm: Yes, it did, a seven-year limit.

Mark Chenoweth: It could be –

John Vecchione: That’s right.

And I thought that was a fascinating discussion, particularly where he talks about one of the important facets of the freedom of the press to the Continental Congress was that oppressive officers are shamed or intimidated into more honorable and just votes of conducting affairs. And I thought, John, of our King George III prize. It has exactly that intent.

John Vecchione: Yeah, good fodder for the Georgie.

Mark Chenoweth: Exactly, exactly. So, I’m sure I’m gonna be ... Well, first of all, I need to go and read that entire essay. But I read all of Volokh’s essay, but I haven’t read the appeal to the inhabitants of Quebec, which I must go do very soon now. Anything like that, Josh, that was sort of new original material for you?

Josh Blackman: One of the fascinating parts was actually about the Seventh Amendment. And Seventh Amendment guarantees the right of a jury trial if the amount of controversy is $20.00. And I never knew why $20.00 And I think actually Renee Lerner wrote the essay, but she quoted Phil Hamburger on this one. We don’t know for sure, but Hamburger suggests that American states were approximating what was 40 shillings.

Mark Chenoweth: Right, they are explicable.

John Malcolm: And a shilling is not worth what it was.

Mark Chenoweth: Absolutely.

John Malcolm: And I’ll just say about that, the first thing Congress did after it got sworn in – They all got sworn in. That was the first thing they did after a Constitution. And then they passed one law about tonnage and one about duties. So, it goes to Josh’s point that that was their big thing.

Josh Blackman: That’s what’s on their minds.

Mark Chenoweth: Well, we talked a little bit about how you hope that this will be used. But is this something that you anticipate being ... Is this a reference? Is this something you anticipate libraries having, or is this something ... You alluded to the Scalia-Garner book. I mean that’s certainly in our office library. We use that all the time. Is this something that you think more of as a practitioner’s guide? Who’s gonna use this the most, students, judges, lawyers, academics?

John Malcolm: Look, one of the nice things about this book is it really is available to anybody. So, it’s gonna be available to college and high school students who wanna learn more about the Constitution or if they’re being asked to write essays on particular topics. Certainly –

Mark Chenoweth: Particularly obscure clauses.

John Malcolm: Yeah. Well, particularly, it’s certainly law students. But I would love for practitioners, academics, legislators, when they’re passing laws and they’re actually thinking, “Gee, what does this enumerated powers thing mean?” that they’ll look at it. I certainly am hoping the judges will pay attention to it. It has multiple uses for multiple audiences. And anything that improves the quality of originalist arguments and originalist opinions is all to the good.

Mark Chenoweth: Yeah. Josh, do you have any thoughts on that?

Mark Chenoweth: John, we’ll give you the last word.

John Malcolm: Yeah. Look, I’m hoping the judges pay attention to this. I will say that Josh and I personalized a copy for each of the justices. And I have gotten very nice letters back from Justices Kagan and Sotomayor. So, I’m hoping that they refer to it and cite it and otherwise enjoy it.

Mark Chenoweth: Well, they might have the most to learn for it. So, that would be ...

John Malcolm: Not Kagan.

Mark Chenoweth: That would be good.

Mark Chenoweth: Well, it’s tremendous. Thank you for all of the hard work that you guys have clearly put in to producing this volume. I’m looking very much forward to digging into more of the essays than I’ve had a chance to do so far. And I really appreciate your coming on to discuss it with our audience here at Unwritten Law.

John Malcolm: All right. Well, thanks for having us on.

Josh Blackman: Thanks, guys. Talk to you soon.

Mark Chenoweth: You have been listening to Unwritten Law. As we like to say here at NCLA, let judges judge, let legislators legislate, and stop bureaucrats from doing either.

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Duration: 17 minutes