In this episode of Unwritten Law, Mark Chenoweth and John Vecchione sit down with John Malcolm and Professor Josh Blackman to discuss The Heritage Guide to the Constitution, Third Edition—a monumental, fully revised collection of essays from more than 150 scholars and judges. Discover how this project reshapes the study of originalism, why it matters to lawyers, students, and citizens, and how it continues the legacy of Ed Meese and Justice Alito in advancing constitutional understanding.

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 Unwritten Law with Mark Chenowith and John Vecchione.

We are joined by two special guests today, the Heritage Foundation’s John Malcolm and Professor Josh Blackman, to discuss the new book that they have just released, The Heritage Guide to the Constitution, the fully revised third edition, which is a fantastic read. And we’re gonna get into it in two special episodes here. We’re delighted that both of you could join John and I on the podcast.

John Malcolm: Happy to be here.

Josh Blackman: So glad to be here.

Mark Chenoweth: Well, this is a real who’s who of conservative luminaries including judges and professors who have written these essays in the volume. How did you select the authors for these various essays?

John Malcolm: Well, it was really based on people whom Josh and I knew, and we were looking for people that were committed originalists and ideally had written something on the particular clause or clauses that they were going to write about in the past. Between Josh and myself, I know we have a lot of connections in the judiciary and in the academy. We know a lot of practitioners, and we were very pleased that a lot of them agreed to participate in this exercise.

A few of them were people who had contributed to the second edition, but we really wanted to do a totally different concept for this book. And we were blessed so many people agreed to participate either as advisors or as people who actually wrote essays.

Mark Chenoweth: How many authors are there?

John Malcolm: Oh, gosh, about 150, maybe a little bit more. There are 213 essays covering every clause in the Constitution. There’s also a preface by Justice Solito and a forward by former attorney general Ed Meese, but I think right around 150 or slightly more actual authors.

Mark Chenoweth: Those sound like legitimate originalists.

John Vecchione: That’s right.

John Malcolm: Yes.

Mark Chenoweth: So, how many of the descriptions or how many of the entries are new, Josh? Do people need to consult the second edition and the third edition to get two separate views on the same clauses? It says fully revised third edition. So, what does fully revised mean?

Josh Blackman: Every essay was written from the ground up. There is very little that will be the same as the prior edition. Of course, a lot of the history is the same. A lot of the cases are the same, but the focus is very different. So, we pretty much started from a blank slate. Even the authors who returned from the prior editions, we asked them to rewrite their essay from the beginning.

John Malcolm: ’14, yeah.

John Malcolm: Well, the major change is in how each of the essays are structured. I mean it’s designed to help originalist scholars, help judges who are presented with cases involving constitutional clauses they may not be familiar with. It’s certainly for students and for lawyers who are trying to make originalist arguments. Each essay is organized completely differently from either the first or the second edition, and they all follow a format really thanks to Josh. I think this was great.

So, each clause starts out with what was going on in other countries or with the UK at the time that made that particular issue in that clause a concern. What was happening in the colonies at that time? Then it goes to: Okay, how was that issue treated in the colonies at the time of the Articles of Confederation. Then it goes to: How was that issue discussed at the Constitutional Convention in Philadelphia? Was the text revised? Who was in favor of it? Who said things against it? Then how is that issue treated at the ratification conventions that took place?

Then how was that issue treated by early administrations – Washington, Adams, Jefferson administration – in the early day by people who had been involved in the process of framing and ratifying the Constitution. And then you finally get to how the courts have treated that issue, in some cases remaining true to the original intent and public understanding, in some cases having deviated badly in that regard. And then finally, are there any open questions with respect to those clauses?

So, there has been a change, obviously, in terms of the seriousness with which originalism scholarship is considered, the fact that judges now demand that people make originalist arguments, and they don’t just sort of ... you know, like legislative history instead of paying attention to the text of the statute. But each one of the essays is framed from an originalist perspective. And one thing that I just love about it is each one of these essays I think tells an American story about: Why was that particular clause, that particular issue on the minds of the framers at the time? And does it continue to have resonance in terms of issues that we face today.

John Vecchione: And I assume that that is the same with the amendments?

John Malcolm: Yes, every essay follows that format along with endnotes, that people who wanna get more in depth scholarship, they know exactly where to go. You can go to a citation to the Federalist Papers, the Anti-Federalist Papers, Farrand’s notes of what was happening at the time in the ratification conventions and at the Constitutional Convention, Madison’s notes. It really is a great jumping-off point to cover every issue in the Constitution from an originalist perspective.

Mark Chenoweth: Josh, how did you assign the entries here? There must have been some competition among authors who wanted to write about different clauses.

Josh Blackman: Yeah. And John alluded to this before. It took almost a full year to recruit authors for every essay. This was a very involved process. This was during the early days of the pandemic in ’21 or so. I was on the phone almost hours every day. And we tracked down the experts of every single part of the Constitution. Some parts, you know who they are. The commerce clause, I called Randy Barnett. That wasn’t hard. Free speech clause, I go to Eugene Volokh. That was not hard. A lot of the clauses are sort of obscure, especially the clauses about Congress and other parliamentary proceedings.

We found people who worked in the House clerk’s office, the House parliamentarian office, people who worked in the Library of Congress. And it was a lot of carefully reviewing scholarship, talking to them, laying out the commitments. And then once they signed up, the essays went through eight rounds of review. I can’t see John, but I’m sure he’s cringing at the moment. This was a long and painful process.

Mark Chenoweth: You remember all eight rounds of those, John?

John Malcolm: Yes, I do.

Josh Blackman: We reviewed every essay multiple times. We had external review boards. We had an internal review board. We gave feedback back and forth. The sort of format of every essay being separated by historical period, getting the authors to follow that was not always easy, but the end product I think is actually well worth it. And I think this is the way to think about originalism. It’s to clearly separate what was happening at what point in time and don’t just sort of jumble it together and say, “Oh, the framers thought this and that. No, no, no. We gotta do it sequentially and hope it’s sort of best practice originalist scholarship going forward.

John Vecchione: I reviewed your introduction, Josh, before I came on here, and you said you sought them to blindly review. I assume that meant they didn’t know who the people were.

Josh Blackman: Yeah.

John Vecchione: So, when they’re reviewing this, they didn’t know if it was their friends or who it was. Right?

Josh Blackman: Yeah, no, this is important. It’s a very common protocol with academic review. It was called double blind. That is the person reviewing the essay doesn’t know the author. And then when the feedback’s returned, the person who wrote the essay doesn’t know who the reviewer was. And we did this for an obvious reason. Right? Imagine you are reading an essay written by the federal appellate judge, and you’re gonna be afraid like, “Wow, I can’t criticize this person. Right? I’m gonna be very tentative.” We want to eliminate that.

So, to this day, John and I know who the reviewers were. The authors don’t. I told them after the fact, but they didn’t know at the time. I think that made it much more effective. I think some of the feedback was honest. And in a couple cases, the feedback was so harsh we decided to part ways with the author. It didn’t happen often, but there were some situations where it just wasn’t working out. And they said, “This is not the right fit.” And we found someone else. And I think in the end, we have just the right cadre of authors to come together.

John Malcolm: If I could add just one thing to that which is we were very, very grateful, ‘cause there were a lot of very prominent practitioners and judges who said, “I’m just too busy. I don’t have time to write an essay, but I will serve on your review committee.” And they did yeoman’s work. They read. They started out by reading the essay from the second edition, said what they like and didn’t like. And then they went through all these essays a couple of times rather rigorously, making suggestions about what they like and didn’t like. I’m very grateful for their participation, even if they didn’t get to write essays.

Mark Chenoweth: John, I notice that you have styled this as a collection of essays about the Constitution. Is there significance to that as opposed to being a encyclopedia of entries or something like that?

John Malcolm: No, I don’t think so. Again, I was very impressed when I read this in thinking, “Wow, each one of these what I call essays tells a story.” Again, they all follow that format. It’s very much in an academic style.

But also, if you’re just interested in reading about some obscure clauses, learning more about what was going on at the time of the framing, learning more about why these things were included in the Constitution, learning more about why they’re still significant today, I think they’re fascinating for anybody to read. You could just pick up the book, flip open to a page, start reading. Maybe you’re familiar with that particular clause. Maybe you’re not, but you’ll come away having learned something and I think being impressed.

Mark Chenoweth: Each of the essays stands alone, but it also coheres. Go ahead, Josh.

Josh Blackman: I’ll just add one point. I was sort of inspired by the numbered essays by the Federalist Papers. Every Federalist Paper has a number. It’s called an essay. And that was sort of my inspiration with doing it in this fashion. The prior edition, it was actually hard to figure out which clause we were reading. There was really no table of contents.

Mark Chenoweth: I need to go read Essay No. 10 now.

John Malcolm: You should.

Mark Chenoweth: Oh, that’s very interesting. So, who wrote the most entries?

John Malcolm: Oh, gosh, I’d have to add that up. It might have been you. It might have been Josh.

Mark Chenoweth: Present company excepted.

Josh Blackman: Who got credit for the most essays? Who wrote the most essays? I wanna ask that.

John Malcolm: Well, we had some judges. I think Bill Pryor of the 11th Circuit I think wrote three essays. I mean there were several who wrote more than one. One thing I think it’s important also to point out. Yes, this is The Heritage Guide to the Constitution. And obviously, at the Heritage Foundation, we have different views about what’s the correct reading of particular clauses or not. We didn’t wanna do that.

We wanted these to be very neutral in terms of their approach so that you could read this and use this as a jumping-off point for your own research. You wouldn’t just get, oh, this is the conservative perspective on, say, the birthright citizenship clause, you know. It’s presented from a very neutral –There are arguments on this side. There are arguments on this side. This is what courts have done. And so, whether you are a conservative, a liberal, a libertarian, if you are making these arguments, this book should be helpful to you.

Mark Chenoweth: Absolutely.

John Vecchione: You know, I have Josh’s and Randy Barnett’s 100 most important constitutional cases that I have. I use it all the time.

Mark Chenoweth: And we’re gonna call this one the 213 most important constitutional essays.

John Vecchione: That’s right. And it’s very user-friendly, and I’ve found it – I think the 100 have changed since I first got it, but it is very user-friendly. And it sounds, at least, because of the structure, that it’s the same. Did you learn anything doing that that helped here, Josh?

Josh Blackman: Yeah, I guess I like numbering things. It’s something that I enjoy doing. I like things ... user-friendly is a good word. I want this to be accessible. And John makes a very fair point. You could slip to any page and start reading a fascinating entry, or you can read all the essays about Congress, or you could read the entire book cover to cover. There are many ways of accessing this. I think probably the most likely way people use this is if they have a case, or they’re working on an article, or they have a brief or your bench memo if it’s a judge.

And then there’s some clause that’s mentioned, and you don’t really know much about it. This is like the starting point. What I would love is if in 10 years people say this is like Scalia and Garner. Scalia and Garner is like the definitive treatise of textualism. Everyone cites it. Liberal, conservative, they all cite it, and it cites all the time. I would love if the same way that Scalia and Garner, the definitive treating of textualism, that The Heritage Guide becomes the definitive treatment of originalism. We’ll see if it happens. I can be optimistic.

Mark Chenoweth: Well, I can promise we’ll be citing it in some of our briefs, for sure.

Josh Blackman: A-plus.

John Vecchione: It certainly helps to have Ed Meese on board.

Mark Chenoweth: Well, Ed has a long way to go before he’s as old as Judge Newman. But I am impressed with his continued stamina, really. Right?

John Malcolm: Yeah.

Mark Chenoweth: And I noticed, as I was going through the list of authors, that the NCLA board of advisors was very well represented among the authors, not just Josh Blackman but Chuck Cooper, Gary Lawson, Randy Barnett, Eugene Volokh, John McGinnis, and some former of our board members as well like Allison Hoe, Jennifer Mascott, Chris Landau. So, it was wonderful to see some of those folks listed among the authors. And I wanted to give a special shout-out to Jameson Payne, a former intern of ours who’s one of the managing editors, as well as Alex Phipps. Right? He was a summer intern.

John Vecchione: On the other end of the Meese age way.

Mark Chenoweth: Yeah. So, it looked like there were a lot of hands at Heritage for a project this significant. So, I don’t know if there’s anybody else you wanted to single out on the production side or anything like that.

John Malcolm: Well, it was a four-and-a-half-year project. It was sort of an all hands on deck thing. I’m very grateful for the fact that 1.) Josh is a whirling dervish and, 2.) He doesn’t sleep, because really it took an awful lot. He was an amazing person to work with. And yes, there was a lot of coordination that was involved. So, we had some administrative help, including from some people who started out as administrators and now going on to be very, very bright lawyers like Seth Lucas, who started out sort of looking at things.

And now he's finished law school, and he has a district court clerkship, and then he’s gonna be clerking for David Porter on the Third Circuit, and he wrote an essay. So, yeah, there were a lot of hands on deck to do this. And also, adding about Ed Meese, I’ve been very fortunate for over 13 years now to be the director of the Meese Center. I’m well aware of the fact that anything that we put out carries his name on it.

So, we wanted it to be particularly good. And Ed was actively involved. So, in fact, we will be having him on the website very, very soon. He recorded not only his forward, but he also recorded reading the entire Constitution. And so, I’m glad that we got that in the can when we did, and we’re looking forward for the public listening to that.

Mark Chenoweth: No, I’ll definitely look forward to that.

John Malcolm: I’m glad, by the way, that you mentioned Brennan, because I always sit there and say that Justice Brennan deserves a lot of credit in sort of a negative way. So, Ed Meese started all of this by going and giving a speech at the American Bar Association when he was attorney general. And now attorneys general give speeches at the American Bar Association all the time, and usually like it’s a pebble falling off of a cliff. It happens, and no one knows about it.

John Vecchione: I entered law school in ’86 in Georgetown, and it was the talk of the town.

Mark Chenoweth: Oh, I bet it was.

Josh Blackman: Oh, wow, how exciting.

John Vecchione: Yep.

Josh Blackman: And I’ll just reiterate. John paid me a compliment. I’ll return it. It’s not easy shepherding a book like this through the wilderness, and John was a faithful shepherd at every juncture of this. He was a good friend. And this is a truly collaborative effort. We had, again, over 150 people from top to bottom contributing their time, blood, sweat, and tears for this project. And if you’re listening to this, I’m sorry. I’m a very tough editor. I will freely stipulate that. And one of my challenges was I had this sort of vision of what I wanted the took to look like, and I knew what the end product had to be.

John Vecchione: So, you raise a good, Josh, because it seems like every three months there’s another landmark decision out of the Supreme Court. When is your cutoff?

Mark Chenoweth: And did Relentless make the cutoff I think is what John really wants to know.

Josh Blackman: The book went to press July of ’25. I added a reference to Skrmetti. That’s my last, an equal protection essay. I added one reference to Skrmetti, and that was the last new thing. I was like, “Okay, I’m done.”

John Vecchione: Got it.

John Malcolm: You know, one of the nice things, though, about this book and the way it’s organized is that, again, the way that it’s laid out, there’s only one section that deals with how the courts, and particularly the Supreme Court, have treated that issue. So, yes, there’ll be a few traditions, and that will be updated.

But all the rest of it in terms of the history of that clause from the time of the pre-independence treatment of that issue in the colonies all the way through how the early administrations treated that issue, that should remain the same. And so, yes, you can update it with cases as time goes on, but the background in terms of making an originalist argument will remain the same, and the material ought to be an evergreen.

John Vecchione: And that reminds me, when Joan Larsen was teaching at the University of Michigan, she went in and she started with having her class read this clause before they went to the Supreme Court decision on that clause. And she said, “And everyone was shocked that I had taken that approach.” So, I’m glad you’ve done that. And it does sound like it’s gonna be interesting to read.

But the other thing I think all our listeners should know is that when you have authors, it’s harder than even the numbers say because there are no shrinking violets on this list of people who wrote for you. They’re all not only intellectually very, very sharp and brilliant, but, also, they’re not like, oh, little lambs to be led along by the nose. So, really, when I saw the list of the people – and I’ve dealt with a lot of them. Getting them all in a row and on time and the way you need it go and the structure, I mean my hat’s off to you.

John Malcolm: I think, by the way, that most of them have forgiven Josh and are now talking to him again.

Mark Chenoweth: Herding cats is hard enough. Herding legal lions is ...

Josh Blackman: Correct.

Mark Chenoweth: Even harder, I think, is the takeaway there. 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: 22 minutes