The Oldest Constitutional Question | Interview: Richard Primus

Advisory Opinions

The Dispatch

News, Politics, Government

4.8 • 3.6K Ratings

🗓️ 18 September 2025

⏱️ 66 minutes

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Summary

Sarah Isgur and David French invite Richard Primus, author of The Oldest Constitutional Question: Enumeration and Federal Power, to discuss his unorthodox argument that the constitutional system does place limits on Congress, but those limits don’t actually come from the enumeration of powers—and never have. But first: a grab bag of legal cases and responding to Attorney General Pam Bondi’s very anti-conservative remarks. The Agenda:—Will hate speech be prosecuted?—Partisan divides on the interim docket—Listener insights on delegated powers—Elite law schools and Rehnquist v. Souter clerk hiring—Granting mootness on a SCOTUS case—The oldest constitutional question—Originalism and the 10th Amendment Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including access to all of our articles, members-only newsletters, and bonus podcast episodes—click here. If you’d like to remove all ads from your podcast experience, consider becoming a premium Dispatch member by clicking here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Transcript

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0:00.0	Ready?
0:01.0	I was born ready.
0:04.0	Welcome to advisory opinions. I'm Sarah Isger. That's David French. And we're doing a grab bag.
0:24.3	So we're going to start with, I can't believe we have to do this again. Hate speech is not illegal.
0:31.8	Attorney General Pam Bondi. Number two, interesting stats coming out on the interim docket. Is it partisan or is it judicial ideology?
0:40.7	Number three, Rehnquestian versus Sutarian clerk hiring. What's up with all the elites hiring only elites?
0:49.9	And so your case gets granted by the Supreme Court and you think, ah, dismiss it.
0:55.8	Is the Supreme Court going to stand for this?
0:57.7	We'll talk about that too.
0:59.2	And we'll have our interview with Professor Richard Primus about congressional enumerated powers.
1:07.7	Do you only get those powers?
1:09.5	Or is that just telling you the powers you definitely have?
1:13.9	It's a total paradigm shift. Coming up on advisory opinions.
1:22.7	All right, David, let's open the grab bag and see what we've got from listeners. I mean, it won't surprise
1:28.8	you. We got a lot of emails asking us to talk about Attorney General Pam Bondi's comments
1:34.5	about prosecuting hate speech and prosecuting businesses that won't support the message of a customer that walks in. I will say, just at the outset,
1:48.5	just listening to her interview again, as I did this morning right before we taped,
1:53.7	it's just like a shocking statement about the law from a lawyer. It's like a bonker statement from a sitting United States Attorney General,
2:03.9	and it's like bonkers Town Infinity from a Republican attorney general after the conservative
2:12.1	movement has fought so long and so hard to make the point that hate speech cannot be censured by the government
2:22.5	and that, I mean, the 303 creative fight alone, do you want to just run through 303
2:27.6	creative for listeners again? Yeah, 303 creative was a case brought by a woman who owned a
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