Amarica's Constitution

JFK's Wall

Tue, 12 May 2026 23:48:56 -0500

Our journey through the centuries of religious practice, attitudes, and constitutionalism has reached the 20th century, when several presidential elections set mileposts for the American religious debate. The first major party Catholic candidate, Al Smith, met the worst sort of vitriol and prejudice, and was destroyed by it. This cast a shadow over the later campaign of John F. Kennedy, and he answered it in a speech that we analyze and place in context, even as we thrill to the great man’s voice one more time. We then trace a line from that speech, through several Supreme Court memberships, to the American cultural and constitutional religious landscape as the 21st century dawns. Fittingly, perhaps, one of the jurists who has been prominent on this issue, Justice Thomas, celebrates a milestone on the Court. CLE is available for lawyers and judges from podcast.njsba.com.

Fourteen Colonies, Ten Commandments

Tue, 05 May 2026 23:28:03 -0500

As the 10 commandments case makes its way towards the Supreme Court, we add another chapter to our study of the historical events and factors that went into the American constitutional tradition when it comes to religious freedom, religious establishment, and the relationship of government and religion as a whole. We begin this episode where The Words That Made Us began - in 1760. We take it forward through the revolutionary period, into the Articles and the Constitution and the Bill of Rights, and then wind up with the Civil War and Reconstruction, leaving us poised at last to take a serious look at what the Fifth Circuit thought it was doing, and what it actually was doing, when it allowed a law to stand that mandates posting of the Ten Commandments in every classroom. CLE credit is available for lawyers and judges from podcast.njsba.com.

Remember the Alamo Heights

Tue, 28 Apr 2026 23:08:07 -0500

We continue to trace the historical origins of the constitution’s approach to religion in American government and American life. We take you on a tour around Europe at the time of the Reformation and for centuries beyond, all the way to American migration. All this is remarkably relevant to recent events, as the Alamo Heights/Ten Commandments case comes to a head. Meanwhile, Sarah Isgur returns for a third helping - or is it grilling? - as we continue to discuss her recent book and it finds its way onto the best-seller list. Individual justices are discussed along with much more. CLE credit is available for lawyers and judges from podcast.njsba.com.

Popes and Presidents

Wed, 22 Apr 2026 20:12:12 -0500

The President has picked a fight with the Bishop of Rome, Pope Leo X. Putting aside some of the distasteful elements of language and hubris, we ask where this fits in with notions of church and state in a democracy. What is the constitutional doctrine - is it “separation?” Where does it come from, historically and legally? A general theory of such things can help us make sense - well, maybe not of everything that is said these days, but perhaps of the numerous cases that are percolating to and arriving at the Supreme Court. And in a special treat, we continue our conversation with Sarah Isgur on her new book, Last Branch Standing, and look more deeply at the patterns of judicial behavior that have emerged from several of the justices, among other things.

Last Branch Stands, The Barbara Court Sits - Special Guest Sarah Isgur

Tue, 14 Apr 2026 23:34:40 -0500

This week it’s Attorney Cecilia Wang’s turn, as she appears before the Supreme Court to defend birthright citizenship in the Trump v. Barbara case, and we continue to analyze clips of the oral argument. Meanwhile, we are joined by the host of the popular Advisory Opinions podcast: Sarah Isgur, who has written a new book that will be published, well, today. Last Branch Standing takes us inside the Supreme Court from the life of a clerk to a tour of the Court’s history to a statistical analysis of voting patterns on the Court - which are far more complex than is commonly thought. You can’t help but know more after this episode than you did coming in! CLE credit available from podcast.njsba.com.

New World, Same Constitution

Tue, 07 Apr 2026 23:08:23 -0500

Trump v. Barbara - the birthright citizenship case - reaches the Supreme Court, and we are there. Akhil and Andy are at the oral argument, and immediately afterwards we stand outside the courthouse and you hear (and see, from the linked video) the emotions that affected not only your hosts, but no doubt the justices themselves as the case unfolded. Then it’s off to the audiotape, as we play the clips of the Justices and the advocates, and Akhil does his Howard Cosell imitation, analyzing the arguments as you hear them. Given the Professor’s status as the author of an amicus brief in the case, a brief the Solicitor General chose to take on in his own reply brief, the perspective this episode offers our audience - you - is unique. So with the arguments of the advocates; the questions of the justices; and the knowledge of the amicus, you will know as much as anyone and be in the best position to assess the case as a whole - after listening to this special episode and those to follow. And as always, CLE credit is available from podcast.njsba.com.

Crib Sheets for Barbara

Tue, 31 Mar 2026 23:07:42 -0500

On the eve of the oral argument in Trump v. Barbara, we offer you a listener’s guide to the spectacle. What is the essence of the argument? What are the hard questions for Solicitor General Sauer, representing Trump? What should Attorney Wang, ACLU attorney for petitioners, be prepared to answer? What should the audience be listening for - clues to how the argument is going? We provide all this and more, so you can put yourself in the seat of a Supreme Court law clerk, listening to the argument, preparing to offer your thoughts to your justice. Professor Amar, as an amicus who has submitted a brief to the Court, is your guide. CLE credit is available for lawyers and judges from podcast.njsba.com.

Created to Born to Barbara

Wed, 25 Mar 2026 11:00:07 -0500

Akhil and Andy visit a high school in Garden City, NY, to speak with outstanding high school students about Born Equal. In the process, we trace one of America’s great credos - “All Men Are Created Equal” - from the Founding, all the way to Lincoln - and beyond, to the fourteenth amendment; and finally to birthright citizenship and next week’s momentous Supreme Court case, Trump v. Barbara. The students’ great questions help show the way. CLE credit is available for lawyers and judges from podcast.njsba.com.

A Brief Ecosystem

Tue, 17 Mar 2026 23:11:36 -0500

We’ve been mentioning the birthright citizenship case, Trump v. Barbara, and Professor Amar’s amicus brief in the case. Now we begin to analyze it in depth. We begin with the structure of the brief; why is it so different from most such briefs? Why is it uniquely wide-ranging? How can it cover many aspects of the case with a strict word limit - what is it about the way it is done that allows this when other briefs - well-executed briefs - cannot cover as much ground? And then, what is the outline of the argument? We also show where you can go from here; where you can find expansion and discussion beyond the brief. Or you can come back here in subsequent weeks when we will expand on the outline of the argument presented here.

Substantive Expansion - with Advisory Opinions and Divided Argument

Tue, 10 Mar 2026 23:04:24 -0500

Amarica’s Constitution has joined with two other great podcasts! We’re still ourselves, but today we bring all three podcasts together to look at a recent case, Mirabelli v. Bonta, which brings substantive due process back to center stage. And because we are who we are, we take a look ourselves at some more aspects of - what else? - the birthright citizenship case. Learn what the future holds for our listeners, as we bring you what we always have, and more. Attorneys and judges can gain CLE credit from podcast.njsba.com.

Attorney Amar's Opening Argument

Wed, 04 Mar 2026 09:41:18 -0500

In this shorter-than-usual episode, you are now a Supreme Court clerk getting ready for the Trump v. Barbara case. What do you do? What do you read? We guide you. And as we think about what will happen when the argument begins, we give you a taste in this unusual episode.

Tariffs Are A Major Question - Special Guest Vikram Amar

Fri, 27 Feb 2026 17:58:09 -0500

The Court has ruled Trump’s so-called reciprocal tariffs unconstitutional. Vik Amar, who offered important theories that appeared prominently in the opinion, joins us to explain the Major Questions Doctrine, why it applies to this case, and even more importantly, why it attempts to support significant structural features of the Constitution. We pay particular attention to the concurring opinion by Justice Gorsuch, which offers the most in-depth theoretical explanation for this Doctrine and attempts to lay a foundation for its future use. Meanwhile, the significance of the opinion as a rebuke to Trump, and as a reassertion of the Court’s credibility, is also discussed. CLE credit is available for lawyers and judges from podcast.njsba.com.

Pillorying the Post

Wed, 18 Feb 2026 00:26:59 -0500

Jeff Bezos emasculated the Washington Post; now he has virtually killed it. Why? And what does this mean for the nation? What is the importance of major newspapers to the American constitutional system? We bring you the great Ruth Marcus, former deputy editorial page editor, long-time columnist, with over 40 years at the Post, to offer an in-depth, insider perspective on this shocking set of events. CLE credit is available for lawyers and judges from podcast.njsba.com.

Converse-1983 Is A Thing

Wed, 11 Feb 2026 21:30:14 -0500

It’s becoming apparent that the theory that Professor Amar put forth 40 years ago in a now-famous law review article, Of Sovereignty And Federalism, is being taken seriously by more and more legislatures, newspapers, and the general public. Therefore, we bring the two leading experts on this – Professor Akhil Amar, and his brother Professor Vik Amar - together to go over the background, theory, and intricacies of this important development. It’s a master class that takes you back to an earlier master class we had, on the venerable and crucial case of McCulloch v. Maryland. What does this have to do with converse 1983? You’ll find out. CLE credit is available for lawyers and judges from podcast.njsba.com.

A Virtuous Republic, If You Can Keep It

Wed, 04 Feb 2026 13:55:11 -0500

In a wide-ranging episode, we finish looking back - and in doing so, we look into the near future as well. The birthright citizenship case will be heard in oral argument on April 1, and we go back to our reaction to the executive order. Unitary executive matters are awaiting court rulings; we look back at our back and forth with Steven Calabresi. Meanwhile, audience questions on court term limits and the virtues of virtue are addressed, and there are more tidbits to enjoy.

Five-Oh and Four Questions

Wed, 28 Jan 2026 00:21:02 -0500

The look back over our five years of drama, humor, reason, and illogic continues, as perhaps the most notorious opinion of the five year period - the Trump immunity case - reappears in a clip, along with a revisit with Justice Breyer. Meanwhile, the oral argument in Wolford v. Lopez did, in fact, prompt the Professors Amar to write in SCOTUSblog.com, and we go even further here, with clips from that oral argument and answers to the justices that didn’t find their way into the record, but now, hopefully, enter the public discourse. CLE credit is available as usual for lawyers and judges from podcast.njsba.com.

High Fives

Wed, 21 Jan 2026 00:13:13 -0500

It’s five years of Akhil and Andy on Amarica’s Constitution, and our friends are lining up to talk about it. In typical fashion, it’s not just testimonials but reflections. And we do a clip episode, but this time it’s not the justices, or the oral advocates, or the pundits, on the hot seat: it’s us. We look back at two episodes per year, playing our sometimes correct, sometimes wildly wrong predictions, and our sometimes prescient, sometimes widely ignored so-called insights. It’s been quite a ride, and quite a recap - so much so that this part one of at least two. And still, after five years, CLE credit remains available for lawyers and judges from podcast.njsba.com.

The Minnesota Massacre

Wed, 14 Jan 2026 00:06:24 -0500

A powerful and aggressive central government sends unwanted forces in huge numbers to a city where the residents oppose and resent this policy. The undertrained forces unleash violence against the population in the form of an obviously wrongful death. Minneapolis, yes - but also a seeming repeat of an important American historic event, that shaped a nation’s core beliefs, later reflected in the Declaration and the Constitution. We tell those stories, and look at the values and basic laws that emerged from them; bring to light important Supreme Court cases - and bring all this to Minneapolis for examination of how they apply, 250 years later. CLE credit is available for lawyers and judges from podcast.njsba.com.

Venezuelan Frisbie

Wed, 07 Jan 2026 00:08:51 -0500

The military capture of the Venezuelan leader, Maduro, is an event with giant international strategic, moral, economic, political, and other considerations. It also raises fascinating constitutional questions, and Professor Amar is ready to discuss some matters that probably did not come to your mind right away. Much of this stems from the fact that Maduro will be tried in a U.S. civilian, not a military court, so constitutional protections are implicated. Whatever your thoughts about the policy matters, it behooves you to join us in this exploration of how this escapade reveals a strain in constitutional doctrine that remains unresolved. Meanwhile, you will learn of cases with names like “Frisbie,” hence our title. CLE credit is available for lawyers and judges at podcast.njsba.com.

Your Questions, Easy and Hard

Wed, 31 Dec 2025 00:04:09 -0500

Our listeners have a talent for inquiry; they follow Professor Amar’s arguments every week, and come up with their own. This week, we end the year by fielding a wide range of questions, including some related to presidential oath-taking; juries, asked by a Judge; pardons and their abuse; and many related topics. Akhil invokes Angela Bassett and Tina Turner, as we answer the questions first softly, and then not so softly. And we end the year with fond wishes sincerely offered. CLE credit is available for lawyers and judges from podcast.njsba.com.

No Army At All

Thu, 25 Dec 2025 16:40:53 -0500

Presidential power is abridged, for a change, by the Supreme Court in its shadow docket ruling in Trump v. Illinois. Rather than ruling in silence, however, this time the Court gives us 25 pages and 4 opinions to chew on. We examine the history behind issues of deployment of the Army as well as the Guard/Militia on domestic soil, which leads us to discussions of Militia Acts, the Military Amendments, and basic constitutional principles. Professor Amar discusses the implications for the coming big rulings on tariffs and birthright citizenship he sees in the alignment the Court assumes in this ruling. Just as this is not the Court’s last word in this case, we will have more to say in subsequent episodes, but this discussion will leave you armed, if you will, with the tools to see the issues clearly. CLE credit is available for lawyers and judges from podcast.njsba.com.

Courage is Contagious - Special Guest Congresswoman Maggie Goodlander

Fri, 19 Dec 2025 00:06:04 -0500

One of the most promising new faces in the US Congress, Representative Maggie Goodlander, joins us for a wide-ranging discussion, including the recent video assuring our troops that they may not obey illegal orders, and the aftermath of that simple offer of support. You may not know that this first-term congresswoman has served in our military for 11 years; has clerked for a Supreme Court Justice; has served in the White House; has been senior advisor to both Republican and Democratic Senators; has studied under Professor Amar - and much more. Hear from her, and see that there are still talented American patriots that seek to defend the Constitution. CLE credit is available for lawyers and judges from podcast.njsba.com.

Humphrey's Execution

Wed, 10 Dec 2025 06:21:34 -0500

Oral arguments took place in the highly-anticipated unitary executive case, Trump v. Slaughter. The overruling of the case that seems to govern, Humphrey’s Executor, has been long expected, and indeed, the Chief Justice referred to the “dry husk” that was all that remained of that case after recent years of whittling by the current and recent Court. However, faced with the extremity of possible consequences, the Court veered this way and that, indicating that while the direction seems clear, the destination may not be. Fascinating intersections with other cases and theories that Professor Amar has studied and expounded over the years abound, and in our Cosell-like tour of the argument’s twists and turns, you will learn how it fits together. CLE is available for lawyers and judges from podcast.njsba.com.

Balance and Check-Mate - Special Guest John Fabian Witt

Wed, 03 Dec 2025 00:01:07 -0500

Secretary of Defense Hegseth is making use of his sights. He is focusing at times on Senator Mark Kelly, seeking to wreak havoc upon him for his utterances which have angered Hegseth’s master. Meanwhile, purported drug smugglers have found Davy Jones’ locker at the order of Hegseth, it has been reported, including those left helpless after initial lethal strikes. Yale Professor and Bancroft Prize winner John Fabian Witt joins us to help us make sense of the international law and laws of war issues here. Meanwhile, your poor co-host, Andy, is subjected to a Socratic barrage at the hands of a Kingsfield-like Professor Amar, as the relentless logic - or is it illogic - of Hegseth’s actions run into a Constitutional wall. This is an entirely new, and entirely irresistible analysis; it’s Professor Amar at his best. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Only Only

Wed, 26 Nov 2025 10:34:57 -0500

Events in the news once again intersect with Professor Amar’s past work, as a little-known aspect of a clause in the Constitution has surprising relevance to the President’s fire-breathing response to a video from Senators and Representatives reminding our military and other officers of their lawful obligations. We trace other constitutionally newsworthy developments, on the filibuster and on the unitary executive. And the Born Equal tour continues, with some interesting reflections on the genesis and rationale for some interesting aspects of the book. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Undigested Matzo Ball

Wed, 19 Nov 2025 00:02:15 -0500

We return to the tariff case and continue to hear from the justices and the advocates in their own voices from the oral argument. This time, a 20 year old argument from Vik Amar takes center stage with apparent approval from several key justices, and several of the Court’s female justices join forces to make life difficult for the Solicitor General. We also review some of the emerging implications from the recent election, and a bill coming out of Illinois that takes its inspiration from a 40 year old argument made by Professor Amar. Part 2 of 2. CLE credit is available for lawyers and judges from podcast.njsba.com.

Incidental Trillions

Wed, 12 Nov 2025 00:37:45 -0500

The economy, trillions of dollars, and consequences unknown are on the line in the tarrifs case, Learning Resources v. Trump. We present the justices and the advocates in their own voices from the oral argument, and Akhil reacts in real time as he hears the clips for the first time. It’s a three hour argument, so this is the first of a two-parter. The Court’s recent doctrines, including major questions and non-delegation are in play, perhaps, and therefore many are watching this case closely for consistency vs politics in the Court itself. And of course there’s history and constitutional issues at stake, so we are right at home. Join us! CLE is available for lawyers and judges from podcast.njsba.com.

Election Correction - Special Guest Vikram D. Amar

Wed, 05 Nov 2025 10:46:16 -0500

California. Meanwhile, the tariff case is about to come before the Supreme Court for oral argument. So it’s timely indeed that Vik Amar joins us with expertise on both topics. In fact, Vik has submitted an amicus brief in the tariff case. The “brothers in law” take us deep into the gerrymandering world, the major questions doctrine, and we also pause to reflect on the career of former Vice President Cheney who passed away this week. Insights galore await. CLE credit is available for lawyers and judges at podcast.njsba.com.

250 Episodes, 250 Years - and a surprise guest!

Tue, 28 Oct 2025 23:09:09 -0500

Our 250th episode has us looking back 250 years, and looking ahead to the next year of commemoration of those 250 year anniversaries. Sure enough, there is much gold to mine in those momentous events; much to inform us on matters of current import. We recall and examine a Declaration that is 250 years old - no, not that one. To top it off, we have a special guest that joins us to tie it all together as only he can. Tune in and join the celebration! CLE credit is available for lawyers and judges from podcast.njsba.com.

The Threads of Liberty - Special Guest Jeffrey Rosen

Tue, 21 Oct 2025 23:05:46 -0500

The President and CEO of the National Constitution Center, Jeffrey Rosen, joins us for a timely discussion of his new book, The Pursuit of Liberty. The relevance to today’s dilemmas is matched only by the fascination of the deep historical analysis and amazing characters the book unearths. In the differences that separated Hamilton and Jefferson, Professor Rosen finds the genesis of a divide that he maintains has informed most if not all of American constitutional history. Centralized power versus states’ rights; industrial centers vs rural life; a robust protest culture vs governmental support, and more. We are honored to celebrate publication (today!) of this important book with its distinguished author. CLE credit is available for lawyers and judges from podcast.njsba.com.

Opinions on Opinions

Wed, 15 Oct 2025 16:54:06 -0500

As we continue to wade into the Supreme Court term, developments are taking place in several cases we are following. Professor Amar’s students are making constitutional news all over the place, it seems; several of them have converged on the tariff case once again, as well as now the unitary executive issues. A new article made a splash, and it prompts us to harken back to an old one - a 1996 article by Professor Amar, in fact, which has new and possibly crucial relevance. We begin to address some of these matters as this broad landscape takes us on legal travels that we can only begin to traverse. CLE is available for lawyers and judges from podcast.njsba.com.

Dereliction of Duties

Tue, 07 Oct 2025 23:03:20 -0500

Tarrifs may be Trump’s favorite word, but it remains to be seen if he has the authority he claims to employ them. The Supreme Court will hear oral arguments in November, and ahead of this, Professor Amar takes you inside the argument. He offers the history and takes us through an originalist approach, a textual approach, a structural approach, a precedential approach, and presents the case as an advocate might. Listen to a possible amicus brief in the making; a potential opening argument in outline and in any case, arm yourself with an understanding of the issues in this conceivably momentous case. CLE credit is available for lawyers and judges from podcast.njsba.com.

A Tale of Three Cities

Wed, 01 Oct 2025 19:58:50 -0500

Professor Amar visits cities that are in the constitutional news these days: Portland, where the military pays an uninvited visit; Salt Lake City, where gunfire continues this year’s alarming litany of political assassination also seen in Minnesota and elsewhere. Akhil’s epic trilogy, with Born Equal now taking its place as the second volume, speaks to how our history shows us the constitutional principles at work - or not at work - in these and other happenings in our nation. And he speaks of New Haven, where work has been and is still done that enables these lessons to be told. All this takes place during a live podcast taping at the Yale Club of New York City, with a live and lively audience that treats us, and you, to their questions and comments. CLE credit is available for lawyers and judges from podcast.njsba.com.

Out in the World

Tue, 23 Sep 2025 23:57:31 -0500

Born Equal is being read - by academics, pundits, historians, and citizens. Reaction has begun to pour in, and discussion has begun. In this episode, we bring you some of the very best flavor of such discussion - an academic symposium held at Penn Carey Law School on the book. Professors Kate Shaw and Kermit Roosevelt each read the work with great care and deliver extensive remarks on the book, pointing out themes and insights - and raising questions. Oh, so many questions. Professor Amar then responds in the moment, and students in the audience pose their own queries. The constitutional conversation continues, and is never complete. But this one in particular will go on, as there were so many important questions raised that they could never be answered in this short interval. But you will thrill to deep engagement and fascinating perspectives from this all-star panel of great thinkers. Meanwhile, we also have a bonus for you: the great historian Gordon Wood has weighed in having read the book, and his extended remarks can be found at akhilamar.com/podcast. CLE credit is available for lawyers and judges from podcast.njsba.com.

Blast Off!

Wed, 17 Sep 2025 10:07:13 -0500

Happy Constitution Day! And Happy Born Equal Publishing Day! The book tour is underway, and we treat you to an event held live at Princeton University. Professor Amar speaks about the bridge from the last book to this one, and in doing so, the importance of the uniquely grand sweep of his project becomes apparent - as themes from The Words That Made Us merge crucially with the new revelations of Born Equal to shed light on some of the most important constitutional questions in American history. The audience gets involved, too, with questions that might well be your questions. And this is just the beginning, as some amazing events have already taken place that will fill our podcasts with debate and insight in the weeks and months to come. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Big Equal

Tue, 09 Sep 2025 23:44:47 -0500

With the imminent publication of Born Equal, we explore Lincoln’s grand vision of equality as it played out during and after his life. The new book goes further still, offering an expansive though still relentlessly originalist view of this constitutional vision. And now Professor Amar sees this vision through with even greater implications for the 160 years since his death and into the future. The new book introduces, and this podcast and those to follow explore, a new unifying thread that gives even greater coherence to the Constitution, as amended and as understood through this momentous scholarly effort. CLE credit is available for lawyers and judges from podcast.njsba.com.

The 64 Percent Question

Tue, 02 Sep 2025 23:10:54 -0500

Trump is keeping the courts active; this week saw a ruling against many of the widespread tarrifs he has sought to impose, and the Fifth Circuit upheld his dismissal of an NLRB member. Meanwhile, a Fed governor was dismissed, supposedly for cause. And the social media announcements of supposedly impending executive orders imposing voting requirements such as voter ID kept coming. And there’s more. We try to keep it all straight for you, identify the constitutional issues, and look at what the Courts might do. Meanwhile, your fantastic response to the impending Born Equal release is noted, appreciated, and we respond to it. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Land of The Land

Tue, 26 Aug 2025 23:20:29 -0500

Gerrymandering, borders, the use of the military on US soil, and even the status of the District of Columbia. All these relate to geography, and the "more perfect union" our founders sought. The Constitution therefore speaks to all these issues, and originalism must be considered. We look at what the Constitution has to say, why it says these things, and what the underlying principles tell us. This has obvious implications for today's questions, but without clarity on the historical background, confusion may reign, which aids those who might be in the wrong. It's timely in another way, because the forthcoming Born Equal addresses many of these geographic questions - because Americans in the 19th Century, including Lincoln most prominently, thought about them prominently. Professor Amar brings it together for you. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Good of the Country

Thu, 21 Aug 2025 14:30:59 -0500

President Trump has taken to social media, as usual. This time he asserts an authority to control elections through executive order. He claims that he is empowered to do this as the sole representative - nay, the sole decider - of the nation’s interest. We look to the constitution for a reply. He also echoes some election complaints, and election claims, from controversies past, and we have an answer there, as well. Meanwhile, the publication date of Born Equal, Professor Amar’s new book, draws near, and we have an enticing offer for our listeners. CLE credit is available for lawyers and judges at podcast.njsba.com.

We the Who? - Special Guest Jill Hasday

Tue, 12 Aug 2025 23:31:23 -0500

With all our recent discussion on Skrmetti, and questions of scrutiny as applied to gender dysphoric individuals, the question of where women’s rights stand in this morass deserves new attention. Professor Jill Hasday has written an important book, We the Men, which is deeply relevant to these discussions. To what extent does inequality persist in the law? When Courts seek to answer this question, they often cite the great progress that has been made. Professor Hasday hypothesizes that this very celebration of progress tends to obscure the remaining issues, and may in a sense pre-empt the scrutiny required. The echoes of Skrmetti are profound, and Professor Hasday joins us for a lively discussion of these issues and many others - including that recent bugaboo, the Geduldig case, which rears its ugly head once again. CLE credit is available for lawyers and judges from podcast.njsba.com.

Skrmetti Skirmish

Tue, 05 Aug 2025 23:06:01 -0500

We continue our discussion of the deep issues raised in the case of US v. Skrmetti. Last time we observed the Court wrestling with questions of whether the Tennessee law banning gender dysphoria treatments in minors was a form of sex discrimination. Later in the argument the Court addressed the question of whether transgender individuals, or some related group, constituted a so-called “suspect classification” and therefore laws purporting to affect that group would be subject to close examination (“Scrutiny”) by the Court. In this episode we listen, and react to, those arguments as the Court itself did. Professor Vik Amar returns to join Akhil in this task, and rightly so, since the “brothers in law” have written several recent posts on the deep questions raised by this and other recent cases. This has resulted in a new unifying theory which they begin to articulate in this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

Geduldigging Your Grave at Oral Argument - Special Guest Vikram D. Amar

Tue, 29 Jul 2025 23:09:35 -0500

The Supreme Court’s term is long since complete, but we turn back the clock and take a deep dive into one of the major cases of the term, United States v. Skrmetti. This case addressed questions of gender dysphoria treatment and transgender rights, but fundamentally, it was a case about the law of equality, say the brothers Amar. Yes, Vik Amar is back as a guest, and our two experts go back and listen to the oral argument and react to the Justices and the advocates as they present. It turns out that this is an excellent case for learning about how the law attempts to implement the equality promises of the Constitution, and you will hear the Justices engage in this action, or inaction. Our experts add more than their take on the arguments - they have theories that go beyond anything said in Court that day or written in the opinions that followed. This is part one of a multi-part summer treat from Amarica’s Constitution. CLE credit is available for lawyers and judges from podcast.njsba.com.

Fallon's Doctrine - Special Guest Michael Dorf

Wed, 23 Jul 2025 09:50:28 -0500

We pay tribute this week to a titan in the field whom you may not have heard of. Professor Richard Fallon, the Joseph Story Professor of Law at Harvard, passed away last week. As you will hear from his collaborator and friend, our guest Professor Michael Dorf, Dick Fallon had a deep impact in the law and the academy, and did so with grace, class, and integrity. The parallels between his career and Professor Amar’s are striking, but so is the divergence in their constitutional approaches. And this makes for a fascinating and instructive episode as we probe, rather deeply, the nature of these divergences and how they appear in various places in the law. Meanwhile this also brings us back to a fundamental matter for this podcast, namely, the nature of and validity of originalism as opposed to or in concert with other methods of interpreting and understanding the constitution and applying it in today’s, and tomorrow’s, America. That America must now, sadly, go on without Dick Fallon, but it will do so informed by his career and his greatness. We are fortunate to have Michael Dorf to show us why this is so. CLE credit is available for lawyers and judges from podcast.njsba.com.

Firing Line, Then and Now - Special Guests US Rep. Jamie Raskin, and Author Sam Tanenhaus

Tue, 15 Jul 2025 23:25:49 -0500

Representative Jamie Raskin (D-MD 8) was the House manager of the second Trump impeachment in the Senate; is an outstanding constitutional scholar; a long-time law professor; a renowned author; a driving force behind the January 6th committee; and the ranking member of the House Judiciary Committee. For the great privilege of interviewing him, we need all the tools a great interviewer would have. It is therefore appropriate that we also interview Sam Tanenhaus, the biographer, in a new and magisterial work, of William F. Buckley, perhaps the best known and most fearlessly non-partisan in his selection of interview subjects. Sam Tanenhaus has written the definitive work on Buckley, whose Firing Line project was in some ways an inspiration for our own podcast. CLE credit is available for lawyers and judges from podcast.njsba.com.

Speaking the Law

Tue, 08 Jul 2025 23:37:12 -0500

The Birthright Citizenship case reached the Supreme Court - sort of. The Court ruled on the executive branch’s request for a stay in response to nationwide injunctions issued by three different circuit courts, where the executive order purporting to alter more than a century’s practice regarding the Constitution’s guarantee of birthright citizenship was blocked by these courts. In doing so the Court declined - that is, the majority declined - to address the merits. Still, the nationwide injunction issue was addressed - at least for now.. Akhil takes the Court to task for avoiding the merits, and he offers numerous ways by which this could have been - should have been - done. He also presents a new approach that litigants in these cases might consider as they deal with various tactics the government may employ in the service of an executive order they may not expect to be upheld. Along the way Akhil offers some suggestions for consequences that might be faced by the executive officials, maybe not in our government as currently functioning, but at least in theory. There’s a lot here even if what is most notable for many of us is what the Court has left hanging. CLE credit is available for lawyers and judges from podcast.njsba.com.

Children, Indoctrination, and Ideas

Tue, 01 Jul 2025 23:06:49 -0500

The end of the term arrives, and the Court is busy. We begin our dive into the cases with Mahmoud v. Taylor, a case involving inclusive books in a school, parental guidance of religious education, opt-outs, advance notification, and issues of gender and sexual education. Professor Amar goes beyond the case with an overall theory of religious accommodation; indeed, he goes beyond this into questions of parental rights and how it may interact with first amendment law. We also have some announcements of future events. And as always, CLE credit is available for lawyers and judges from podcast.njsba.com.

Imbalance of Power

Wed, 25 Jun 2025 23:59:52 -0500

The US enters a violent part of the world once again, as Iran’s nuclear facilities are bombed. The President orders this without consulting Congress; indeed without asking for, much less receiving a declaration of war. Does the Constitution require this? What has past practice been? What was true at the founding? Has it changed over the centuries? Many twists and turns to the reasoning emerge as we explore this largely indefinite area of Constitutional Law. Meanwhile, Akhil gives a speech on the Revolution and the Constitution which sounds surprisingly relevant at this time. CLE credit is available for lawyers and judges from

A Judicious Life, Part Two - Special Guests Justice Stephen Breyer, Professors Nadine Strossen and Kermit Roosevelt

Thu, 19 Jun 2025 16:21:08 -0500

Former Justice Breyer returns to Amarica’s Constitution with reflections on his long-time colleague and, yes, his friend, in a rare opportunity to hear about relationships on the Court. Meanwhile, former Souter clerk and current Professor at Penn Carey Law School, Kermit Roosevelt, looks back on the clerkship as well as at the threads that have emerged in the law and in his career from Justice Souter’s insights and methodology. And Nadine Strossen, long-time president of the ACLU as well as dear friend to Justice Souter explores many of the first amendment and other cases that Justice Souter had profound things to say, often in dissent. This is a powerhouse episode, but a tender one. CLE credit is available for lawyers and judges from podcast.njsba.com.

Count to Ten

Tue, 10 Jun 2025 23:20:46 -0500

The Supreme Court left lower courts somewhat in the lurch in its recent Bruen decision; last year, in Rahimi, it attempted to clarify matters. Now an assault weapons case reaches the Court, Snope v. Brown, but the Court declines to hear it. Nevertheless, Justice Kavanaugh, though agreeing with the denial of cert, writes a commentary which calls for another, unspecified case to be heard in the near future, and he gives an indication of how he might approach it. We see this as in line with earlier writing he did in Bruen, but there are many unanswered questions in what seems like an intention to utilize a straightforward reasoning. We raise many of these questions, and in doing so, offer our readers a look back at the path gun cases have taken to get to this point, and a look ahead in the hope that some of these heretofore unresolved issues are given their due; that the Justices "count to ten," before the Court takes what might be too headstrong a path forward. Lawyers and judges can obtain CLE credit by visiting podcast.njsba.com after listening.

Competence, Character - or Cannon

Tue, 03 Jun 2025 23:26:21 -0500

Trump says he will no longer take advice from the Federalist Society, and Leonard Leo in particular, for judicial nominations. The criteria he will use instead appear to be cause for great concern, and we discuss this. Meanwhile, the Senate is poised to bypass the filibuster for more than judicial nominations, which calls for an analysis that we provide. And the publication this week of Charles Sumner: Conscience of a Nation brings its author, Zaakir Tameez, onto our podcast to speak to Sumner’s enduring relevance. CLE credit is available for lawyers and judges from podcast.njsba.com.

Possibly Preparing Humphrey's Execution

Tue, 27 May 2025 23:02:27 -0500

This past week, the Supreme Court issued stays of injunctions which lower courts had issued, those injunctions blocking the firings of officials on statutorily independent agencies. In doing so, the Court may have pointed to an imminent overruling of Humphrey’s Executor, possibly removing existing limitations on the unitary executive theory. At the same time, the Court moved to protect the Federal Reserve, or at least markets’ perception of the independence of that crucial Board. Several justices reacted strongly, led by Justice Kagan, who found fault not only in the ruling regarding the injunction, but in the behavior of the President in bringing this case on in the first place. We take a deeper look at these controversies. Meanwhile, the Court deadlocked in a religious freedom case, and surprisingly, we see a connection between these two events. And some other tidbits, as well. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Merits of The Merits

Tue, 20 May 2025 23:31:23 -0500

The Trump executive order on birthright citizenship has been banging around the lower federal courts for months now, with court after court opining on its unconstitutionality and issuing injunctions against it that span the nation. The Supreme Court took cert on the question of whether such national injunctions are appropriate, and if not, how the relief that appears indicated can be offered. Along the way questions of the merits poked their way through, with interesting results. In this episode you will hear from the justices and the attorneys, and you will hear Professor Amar doing his Howard Cosell halftime highlights imitation, opining on their arguments, responses, and questions, and offering a holistic approach to the case as well as some new theories on how to think about citizenship in this context. A “clip episode” as only Amarica’s Constitution does it. CLE credit is available for lawyers and judges from podcast.njsba.com.

A Judicious Life, Part One - Special Guests Dean Heather Gerken and Judge Kevin Newsom

Thu, 15 May 2025 12:54:13 -0500

With the passing of Justice David Souter, the legal establishment has lost one of its most honored members. In this and our next episode, we pay tribute to the man and his work with the help of an amazing roster of his former clerks, friends, and colleagues. We begin with Judge Kevin Newsom from the US Court of Appeals for the Eleventh Circuit, and the Dean of the Yale Law School, Heather Gerken, who share their experience working closely with the Justice on the Supreme Court, as well as his role in their lives that did and does inspire them. Meanwhile, Akhil, who considered the Justice a good friend and role model, offers an in-depth look at various aspects of the Justice, including why a Justice who disagreed with Akhil on method and, in many cases, substance, nevertheless is regarded by him as one of the great Justices in American history. In our next episode we will have more guests whom we will reveal in the discussion during this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

No School For You - Special Guest Vikram D. Amar

Tue, 22 Apr 2025 23:31:53 -0500

Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive. Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities. What’s going on here? What is likely to happen in Court? Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons? We bring on Vik Amar, former Dean at the Law School at University of Illinois, Urbana, and author of recent articles on both these crises. And while we are at it, we take a look at the forthcoming Supreme Court oral arguments in the birthright citizenship case, which superficially is about nationwide injunctions. Is that really what it’s about, and in any case, is there more than that there? Three of our current crises in one sweeping conversation. CLE credit is available for lawyers and judges from podcast.njsba.com.

Equality, Emergencies, Exception, and Easter

Tue, 15 Apr 2025 23:16:35 -0500

Deportations, the administration’s preferred tactic du jour, appear to many as extreme, inadvisable, and often cruel. Are they unconstitutional? What framework can we use to determine the rights of citizens versus aliens, even if legal, even if permanent resident? What kind of process is “due” for the various groups? Where can we locate the origins in our history, and how do they interact with some of the great themes of the Constitution, including the guarantees of the Bill of Rights, and the rights of “persons” as expressed in the 14th Amendment? The case of Mahmoud Khalil offers a set of facts that shed light on these questions, as do other deportations; we start with this one.

Project 2026

Tue, 08 Apr 2025 23:21:58 -0500

Markets are crashing; freedom seems under siege; the international order is threatened. One man’s whim seems to be decisive. Where are the guardrails of our republic? We see some glimmers through the darkness, as some of the feedback mechanisms start to kick in. The constitutional order may be slow but it may not be completely in ruins. However, there is a threat, and we identify it in not one, but the sum of the actions the president has pursued. Many of these are unconstitutional; others may well be. The first step in protecting the republic from these threats is to identify them. We take that on and at least make a start; the task, in the end, however, will be up to the American people, as Project 2025 may fall to Project 2026.

Third Time, No Charm

Tue, 01 Apr 2025 23:14:38 -0500

President Trump likes being president. He doesn’t like the 22nd amendment so much, and has spoken, with increasing seriousness, of his conviction that he could remain president beyond the end of his second term. Various pundits have weighed in, some dismissively, others with grave declarations that Trump can accomplish this through constitutional contortions of one sort of another. Professor Amar, it turns out, has thought and written about this decades ago. We will take you through all the history; all the constitutional provisions - beyond the 22nd amendment alone; all the supposed workarounds,; and present you with a definitive understanding of the matter. Look to our episode number - 222 - for a preview of where we think it will come out. CLE credit is available for lawyers and judges from podcast.njsba.com.

Wisdom From Breyer To Pryor - Special Guest Judge William Pryor

Thu, 27 Mar 2025 15:10:41 -0500

We’re a bit late this week, because following our recent conversation with Justice Breyer, we had the opportunity to speak at length with Judge William Pryor, Chief Judge of the United States Court of Appeals for the 11th Circuit, former Alabama Attorney General, and an important member of the Judicial Conference the “national policymaking body for the federal courts.” Judge Pryor has had a colorful career, having effectively prosecuted another judge for misconduct, had a contentious confirmation hearing, clerked for a titan among judges in Judge Wisdom, and served at the highest level short of the Supreme Court for many years. We discuss a wide range of matters from judicial safety, to the importance of following Court orders, to enforcing civil rights laws, and much more. The discussion took place in two parts; with an audience of undergraduates, and then with an audience of Yale Law School students, many from the Federalist Society chapter at Yale; this produced a great variety of topics. We also have timely information on a new EverScholar program where registration is about to open; be among the first to know about this! CLE credit is available from podcast.njsba.com.

The Shelter From The Storm - Special Guest Hampton Dellinger

Tue, 18 Mar 2025 23:12:09 -0500

President Trump has been firing various Federal officials, many of whom serve pursuant to statutes that claim to provide protection against firing without cause. One of the most prominent, Hampton Dellinger, who served as Special Counsel of the United States, took the President to Court, winning at the Federal District Court before losing on appeal. Why did he sue? Why did he drop his case? What are the implications for the other firings being contested, and what does it mean for the office of the Special Counsel itself? The Special Counsel is a haven for whistleblowers; does that, along with the statutes’ clear intent, offer him any protection? The Special Counsel also enforces the Hatch Act; we explain many of the ins and outs of that statute and how the history of the civil service is integral to understanding it. Finally, Hampton Dellinger comes from a most distinguished family, and there are some stories to tell on that score. CLE credit is available for lawyers and judges from podcast.njsba.com.

Marbury then, Mayhem now

Tue, 11 Mar 2025 23:54:51 -0500

Our recent episodes on constitutional questions such as the unitary executive have looked at founding history, but less so the cases of the founding period. In this episode we take a look at one of the most famous cases of all, Marbury v. Madison. But this isn’t primarily a look at judicial review, but instead Marbury reveals itself, in Professor Amar’s hands, as a key administrative law case, with surprising relevance for, among other things, questions of presidential transition and unitary executive theory. How did a change of party in the White House lead to tension with an unpredictable, even rash, president? The answers will surprise you, and may be further explored in briefs in the Supreme Court case that is sure to come before long. CLE credit is available for lawyers and judges from podcast.njsba.com.

Sinking the Unitary Executive - Special Guest Steven G. Calabresi

Wed, 05 Mar 2025 17:33:21 -0500

President Trump continues to wield the ax in a manner consistent with Unitary Executive theory. The question is, is it also consistent with the Constitution, and with the various statutes on the books that are at odds with that theory? Professor Calabresi returns for more discussion of this crucial question; in this episode, Akhil is pressing a number of challenges to the theory. Among these is an important example from the early Republic, which indeed followed soon after the Decision of 1789, which is so heavily relied upon by proponents of the unitary executive. History, text, structure - all come together in a lively debate.

Across the Aisle - Special Guest Steven G. Calabresi

Wed, 26 Feb 2025 00:13:26 -0500

We are joined by Professor Steven Calabresi, the co-founder and co-president of the Federalist Society, for three big topics. First, he offers insights for this fraught moment in our history with a new book on a key figure from an earlier era. Second, he finds himself on the other side from our current president on an important constitutional issue of the day. And third, he and Professor Amar explore aspects of unitary executive theory, where they find themselves diverging on key cases that have profound implications for many of the more controversial actions of the new administration. All in all, it adds up to something you don’t see that often these days: a prominent conservative and a scholar often on the side of the Democrats having civil discussion and finding common ground as well as principled disagreement. Professor Calabresi speaks for himself in this podcast, and not on behalf of the Federalist Society. CLE credit is available for lawyers and judges at podcast.njsba.com.

Impounding Impoundment - Special Guest Josh Chafetz

Wed, 19 Feb 2025 00:10:24 -0500

A Federal District Court has temporarily halted an executive order from President Trump that purports to halt wide swaths of federal spending. This impoundment of funds duly appropriated by Congress may violate the Constitution as well as federal statutes. We bring an expert on the relationship between Congress and the Presidency, Professor Josh Chafetz, and he takes us back to 17th century and Britain, through the American founding, into the early republic, and indeed into the presidency of Richard Nixon to give a full historical and originalist background. But there’s more, with modern statutes, Supreme Court cases, structural analysis - in short, everything. And for good measure, we dive a little deeper into some statements by Vice President Vance which seem to suggest that he thinks the President is not bound by the Supreme Court’s decisions and orders. Professor Amar appeared on CNN to discuss this, and now he expands on those comments. Lots of depth in this episode, and as usual, CLE credit is available for lawyers and judges by visiting podcast.njsba.com.

Where Are The Lines?

Wed, 12 Feb 2025 00:15:37 -0500

Funds are impounded. Board members are summarily dismissed. Funds appropriated by Congress are impounded. Inspectors General are removed without notice or cause. And arguments are still being made to undermine birthright citizenship. Are all these actions unconstitutional? It turns out that it appears that many may well be, but others that may seem nearly identical may if fact be legal, if of questionable wisdom or propriety. We explain where the constitutional lines are for many of these matters, or in some tricky cases we show how one goes about looking for those lines. And while we are at it, we believe we have dug the last shovels worth in the grave of the attempt to distort, pervert, or reduce birthright citizenship. CLE credit is available for lawyers and judges at podcast.njsba.com.

Birthright Citizenship - Judges on Benches v Judges on Barstools

Wed, 05 Feb 2025 17:30:34 -0500

In the aftermath of a scathing ruling by the Federal District Court and its issuance of an order blocking President Trump’s executive order which attempted to abridge birthright citizenship, one might think the matter closed. But appeals await, no doubt. Last podcast we offered Professor Amar’s arguments in support of his interpretation - and the interpretation of most legal experts - of the matter, but obviously there were arguments made in opposition. We address these arguments, starting with those made in Trump’s brief in the case, and going beyond them as well. In doing so, we revisit a familiar name: Justice Joseph Story, who Trump’s lawyers attempt to enlist in support of their position, with arguments that perhaps don’t tell the whole story.

Birthright and Birthwrong

Wed, 29 Jan 2025 05:36:14 -0500

The Trump Administration takes office, and the Constitution is immediately in the crosshairs. An executive order targeting birthright citizenship and the Fourteenth Amendment is issued on the first day, with an even more extreme version of its renouncement than had previously been contemplated. The pushback begins in a Washington courtroom, and a Federal District Judge shoots it down with a nationwide injunction. But surely the legal battle continues; we are here to arm you with Professor Amar’s arguments, articulated over many years and well in advance of this crisis. Text, history, structure, precedent, and more are placed in the service of the Constitution and one of its most fundamental and consequential sentences. You should be in a position to argue this case before the Supreme Court after listening to this episode. CLE credit is available for lawyers and judges from podcast.njsba.com

End of an ERA

Wed, 22 Jan 2025 00:08:58 -0500

The last days of the Biden administration have come and gone, and with them, some controversy in the form of a presidential statement on ERA ratification, and some more controversial pardons. Then came the inauguration of President Trump, and an inaugural speech some found dark and atypical, if unsurprising. The many events that followed will be fodder for future podcasts, but here we look at Presidents attempting to insert themselves in various ways that seem outside the norm, including a role in constitutional amendments. And the norm-buster Trump sounded several themes in the inaugural that we highlight. The speech and what followed were an avalanche of controversy, and perhaps that’s the idea, but we make a start. CLE credit is available for lawyers and judges from podcast.njsba.com.

Looking Forward, Looking Back

Wed, 15 Jan 2025 00:10:02 -0500

As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened? We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out. We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other. What lies ahead for the law, the Court, and the people? CLE credit is available for lawyers and judges at podcast.njsba.com.

Unconventional

Wed, 08 Jan 2025 01:28:26 -0500

With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions. Now we dive deeper. Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility? Can a state (this means you, California) rescind its previous vote calling for a convention? Suppose there were a convention; would it be like the Philadelphia convention? Would California be no more powerful than Wyoming in such a meeting? In fact, there are even more terrifying implications and scenarios - and we will review them for you. Meanwhile, we have a new Speaker of the House - for now - and the January 6th certification did take place without incident. But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant - and fascinating. That John Quincy Adams keeps showing up in the strangest places - like the presiding officer’s chair when he arguably had no business there. What’s up with that?

Justice on the Spot - Special Guest Justice Stephen Breyer

Wed, 01 Jan 2025 00:24:46 -0500

Amarica’s Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer. Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism, not Textualism. As you can imagine, Professor Amar has some opinions on the matter as well. The discussion ranged far, from the French essayist Montaigne to 20th century American pragmatists, as Justice Breyer’s broad range is displayed in a way few have seen. We take our time, and the Justice generously indulged, for an in-depth look at the thinking that helped shaped the bench for decades. This podcast will be available on YouTube video as well as the usual audio feeds found here; we will provide information on accessing the video in subsequent podcast episodes, as well as on our Instagram feed - check it out. CLE credit is available through podcast.njsba.com.

Changing Your Mind, or Changing The Rules

Wed, 25 Dec 2024 09:56:08 -0500

As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution. Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification. Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this. We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters. Meanwhile, our 4th anniversary is approaching, and we preview the gala event - with Justice Breyer getting behind the microphone with us before you know it! CLE credit is available from podcast.njsba.com.

Unpardonable

Wed, 18 Dec 2024 00:46:55 -0500

In the wake of President Biden’s pardon of his son, and with the shadow of President-elect Trump’s possible pardons of the insurrectionists who stormed the Capitol and attempted to prevent Congress from certifying Biden’s election, are there constitutional issues? The Constitution itself seems direct on the subject, but it turns out there is a lot to discuss. Scope, timing, subject, language, all are questionable. Would either or both of these be impeachable acts? What would happen to the pardon in that case? Are there immunity issues? Where does the pardon power come from, and how has it been used in the past? What is the originalism of pardon law? Lots to talk about, however you feel about the acts themselves politically. And - some big coming attractions! CLE credit is available from podcast.njsba.com.

Recess Games - Special Guests Josh Chafetz and Thomas Schmidt

Wed, 11 Dec 2024 00:09:25 -0500

Could Republicans in the House conspire with a 2025 President Trump to manufacture a forced Senate recess in an effort to bypass the advise and consent appointments process? The much-anticipated article in The Atlantic has been published, to widespread approval. We proudly present all three co-authors of this article in a wide-ranging, nuanced, fascinating discussion, as Professors Josh Chafetz, Tom Schmidt, and of course Akhil Amar reunite to take us from Restoration England to the chambers of the Supreme Court where Professor Schmidt clerked for Justice Breyer, the author of the principal case on recess appointments, NLRB v. Noel Canning, in 2014. We hear how that case has lessons, and yet is distinguished, from the scenario here, and what might happen if the contemplated maneuvers, deemed grossly unconstitutional by our experts, try it anyway. CLE credit is available from podcast.njsba.com.

The Obsequious Instruments of His Pleasure

Wed, 04 Dec 2024 00:32:56 -0500

The presidential transition is always a bit fraught, as we have discussed in past episodes, but this one seems to be boundary-pushing, even for Trump. He intends to fire the FBI director, whom he appointed, (can he do that? - we explain) and replace him with a singularly problematic bomb thrower. He had pardoned a family criminal, and now appoints him to be ambassador to France. He prizes loyalty to him above all, it seems, but is there a place for competence? And we have more on the withdrawal of Gaetz and his strange resignations. Speaking of resignations, a judge in Ohio has thrown yet another resigning twist our way. This episode was recorded prior to the Hunter Biden pardon, which will be discussed in a later episode. CLE credit is available from podcast.njsba.com.

Does Section Three Live?

Wed, 27 Nov 2024 00:05:26 -0500

Colorado’s Supreme Court ruled that Donald Trump was ineligible for the Presidency under Section 3 of the 14th Amendment, following a trial, a verdict, and appeals. The January 6th commission had numerous findings of fact that seemed damning to the former President. The Special Counsel brought charges against him related to the fateful day. But the Supreme Court unanimously ruled against Colorado; the Justice Department is dropping their case; the January 6th commission has disbanded. Meanwhile there has been no ruling that Trump did not in fact violate Section 3. Does it exist? And if it does, what are the implications for Congress’ certification of the vote in early January 2025? We return to this subject even as the nation seems to be leaving it behind. Also - an early look at some of the background to the recess appointment article authored by Prof. Amar and others which will appear soon, and a celebration of a great man and a great historian. CLE credit is available from podcast.njsba.com.

The Gaetz of Hell

Wed, 20 Nov 2024 09:17:17 -0500

President-elect Trump has begun to announce his plans for his cabinet and other top appointments for January. Unconventional is a kind word for some of them. And suddenly, in a House where Republicans have a razor-thin majority, there is a resignation - months before it would be required. Why? There are conspiracy theorists for health care positions; admirers of Putin for intelligence posts; newscasters who have never managed anything for one of the largest organizations in the world. The Constitution has something to say about some of these, and we dive in. Suffice to say, the water is murky. CLE credit is available for lawyers and judges from podcast.njsba.com.

Preview of Peril - Special Live Podcast

Wed, 13 Nov 2024 15:29:29 -0500

The election is behind us, and foreboding fills the air. We are live at the Yale Club of New York City for a live recording, addressing some of the many constitutional matters that are or soon may be front of mind as the seemingly inevitable challenges to norms, rules, and laws await. Matters as wide-ranging as the implications of undivided government; the significance of state constitutional amendments on abortion; Justice Sotomayor’s future; recess appointments - and much more are on our plate this week. CLE credit is available for lawyers and judges at podcast.njsba.com.

All This Fuss About the Presidential Election - Special Guests Gordon Wood, Steven Smith, Paul Grimstad

Tue, 05 Nov 2024 00:22:21 -0500

We are here early this week - for Election Day! And we bring you a panel that looks at elections, and Presidents, from American history, putting this year’s choice in perspective. Gordon Wood, the greatest historian of the early Republic; Steven Smith, an expert on political institutions, on The Federalist, on Lincoln; Paul Grimstad, authority on great American thinkers and writers like Emerson and Thoreau; and of course, Professor Amar, weigh in on all sorts of questions and aspects of this year’s crucial choice. And we have an audience for this live-to-tape podcast - an EverScholar audience - who asks questions on the mind of many. Here are perspectives you won’t gain anywhere else. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Sound of Silence - Special Guest Ruth Marcus

Tue, 29 Oct 2024 23:30:38 -0500

It's 200 episodes for Amarica's Constitution, and we mark the occasion by bringing you a key expert for an in-depth exploration of a breaking development. Ruth Marcus, long-time Washington Post columnist, editor, Pulitzer Prize nominee, and insider, joins us to explore the inexplicable: the last-minute decision by the Post and its owner, billionaire Jeff Bezos, to withhold what would have been an endorsement for Vice President Harris for election to the Presidency. What goes on in an editorial board? What is the role of the owner? What are the alternatives for editors, columnists, and reporters? Was Bezos intimidated by Trump? What does all this mean for the nation? We have the perfect means to explore this shocker: a frank and unhurried inquiry with our friend, Ruth Marcus. What a way to mark our bicentennial. CLE credit is available from podcast.njsba.com.

Constitution Things

Wed, 23 Oct 2024 06:58:09 -0500

We are approaching our 200th episode and completing our 4th year of “Amarica’s Constitution,” and it seems appropriate to take stock. By coincidence, the Yale Law School is celebrating its own anniversary, and these things come together as Akhil is part of a big event and presents a “big idea” that sounds like a strange saying: “the Constitution is a thing.” We explain, elaborate, and celebrate a little bit. We look back, and we look ahead to some real excitement over the next few months (besides the election, that is). CLE credit is available for lawyers and judges from podcast.njsba.com.

How to Fix - and How Not to Fix - the Immunity Opinion

Wed, 16 Oct 2024 01:49:28 -0500

In Trump v. United States, we have said that the Court went far astray from the Constitution and from its duty, endangering the nation in the short and long terms. Many have shared this opinion and these fears, and reaction has been profound. In the New York Times, two law professors take up the pen and offer a number of suggestions that purport to restrain and direct the Court towards Congress’ will, assuming that Congress agrees with the authors, that is. Senator Schumer in a recent bill took a similar though not as extreme direction. We identify the flaws with these approaches, and offer an alternative that would be constitutional, and has an actual chance of being effective, based upon history and constitutional structure. We also take up some fascinating readers’ questions, including one which might matter for some overseas voters. CLE credit is available for lawyers and judges from podcast.njsba.com.

Ex-Presidents: The Ex-cellent and the Ex-ecrable

Tue, 08 Oct 2024 23:02:52 -0500

The Supreme Court has, through its recent follies, managed to bring the status of ex-presidents into the spotlight. How appropriate, then, that perhaps America’s greatest ex-president reaches a milestone this past week: Happy Birthday, President Carter. The ex-presidents, it turns out, have told a myriad of stories through the centuries. America largely avoided succession crises until recently, but as far back as Alexander Hamilton, the potential for mischief was seen and feared. Professor Amar, one of the few who have studied ex-presidents in any detail, treats us to a master class in this unusual but suddenly vital group of Americans. CLE credit is available from podcast.njsba.com.

The Return of the Enemies List

Tue, 01 Oct 2024 23:49:45 -0500

Donald Trump continues to spout inflammatory rhetoric; he has compounded his talk of being “a dictator on day one” with an intention to conduct a “purge” with extreme violence allowed, again allegedly for one day. All this makes one expect that he will not back off his first-term tendency to take an authoritarian posture regarding the Justice Department. The New York Times ran an article presenting new and thorough look at Trump and the Dept in his prior term, and we analyze. We also take more of your election-related constitutional questions. CLE credit is available from podcast.njsba.com.

The Blue Dot

Tue, 24 Sep 2024 23:58:40 -0500

Nebraska is no flyover state; its unusual electoral vote structure puts Omaha’s one electoral vote up for grabs - both as a contest for votes, and a legislative battle to possibly restructure Nebraska’s election law. We tell an originalist story form the early Republic that surprisingly echoes some of the issues in today’s situation. Meanwhile, other types of blue dots, and how the right to travel and to reside where one wishes can play a role in the election. We also try to proactively refute the inevitable accusations to come from predictable sources on these matters. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Devil You Know

Wed, 11 Sep 2024 08:28:50 -0500

The New York Times looks at the Constitution as an allegedly anti-democratic, divisive, secession-promoting document. They bring authority to bolster their case in the person of the Dean of the UC Berkeley School of Law, Erwin Chemerinsky. We take a close look at this article and the arguments it employs. This takes us to the center of the Constitution’s purposes, of course to questions of originalism, as well as an analysis of what sort of democracy the Constitution protects, and what sort it might protect against. CLE credit is available for lawyers and judges from podcast.njsba.com.

Your Turn

Tue, 03 Sep 2024 23:56:22 -0500

It’s time for your questions, and having a great audience means there are so many fascinating directions to go. A Canadian listener tells of how a non-originalist purpose-oriented approach to constitutional law works for them - why not in the US? We go in a different direction when we consider the wisdom of increasing the size of the House of Representatives. Still another asks about whether the presidential immunity decision has undermined some fundamental aspects of criminal law, not to mention one of the Court’s greatest moments - the Nixon tapes case. Keep those questions coming! CLE credit is available for lawyers and judges from podcast.njsba.com.

The Kennedy Shame and Schumer's Folly - Special Guest Ruth Marcus

Tue, 27 Aug 2024 23:16:09 -0500

RFK Jr. has withdrawn from the race and endorsed Trump. This meeting of an estranged Kennedy and an indicted Trump, is laced not only with strangeness but also constitutional themes, as we explore. Meanwhile, backlash after the Trump immunity opinion continues, and Senate Majority Leader Schumer has introduced legislation in response. The great Washington Post columnist, Ruth Marcus, returns to our podcast to comment on this legislation and the many serious implications it would have if adopted, as well as the issues it raises for consideration even if it fails, as it seems likely to do. CLE credit is available from podcast.njsba.com

Circuit of Shame

Wed, 21 Aug 2024 05:01:41 -0500

The United States Court of Appeals for the Fifth Circuit has been overruled by the Supreme Court more often, and more forcefully, than any other circuit during the past term. Why? What are the consequences for the judges of the Fifth Circuit, if any? Is this a problem for our judicial system, and if so, are there any remedies available? Listeners to Amarica’s Constitution will not be surprised to learn that Professor Amar has some ideas on this topic. He also grounds the problems and the solutions in history and structure, and lest one think this is a partisan attack on a conservative court, he tells of his past criticism of the then-ultra-liberal ninth circuit for analogous behavior.

Term Limits Made Workable

Tue, 13 Aug 2024 23:06:50 -0500

Court reform is in the air. Having presented the problems with the 18 year term proposals before the House and Senate, Professor Amar’s plan deserves its own scrutiny. We therefore present the plan in detail, explaining the problems that it attempts to solve, the principles it attempts to uphold, and the criticisms it might attract. Since it is a proposal and not yet a statute, it is subject to modification and hopefully improvement, so we invite the audience to chime in with your own critiques and suggestions. Let’s keep the conversation going. CLE credit is available from podcast.njsba.com.

How To Get To 18 Years

Wed, 07 Aug 2024 10:10:55 -0500

The 2021 Biden Commission on the Court has now led - with a big “assistance” from the Court itself - to President Biden’s own plan for Court reform. It is sketchy in many ways, but is entirely consistent with Professor Amar’s long-held views on 18 year active terms for Supreme Court justices, though the President’s proposal lacks the detail of that plan. This is unsurprising in a way since Prof. Amar testified before that Commission. There are other related plans in proposed statutes that lie in committees of the House and Senate. We consider the features of all, the flaws we have diagnosed, and we also have some commentary on some other aspects of the President’s proposals, including a possible constitutional amendment. Lots to consider this week! CLE credit is available for judges and lawyers from podcast.njsba.com.

Stepping Aside and Its Implications

Tue, 30 Jul 2024 09:15:30 -0500

President Biden has stepped aside as a candidate, and as promised, we look at what’s next from a variety of points of view. Some Republicans, notably the Speaker, are claiming that the President should actually resign or step back under the 25th amendment. What would this mean? Meanwhile, we have a lot more in this early episode, including a reader’s question on Barack Obama; another on Edmund Burke; a preview of an amazing EverScholar program; a preview of Biden’s Supreme Court proposed reform; and more. CLE credit is available from podcast.njsba.com.

Virtuous Presidents and A Loose Cannon - guest Vikram Amar

Tue, 23 Jul 2024 17:49:51 -0500

Resignations are in the air, and our discussion - recorded before President Biden’s actions - offers surprising resonances in its wake. Meanwhile, our guest, Professor Vik Amar, provides not just a condemnation of Judge Cannon’s recent dismissal of the Trump documents case, but a refutation of the arguments she made, and a recitation of those crucial points, cases, and reasonings which she ignored. Plus we finally have the details on the EverScholar announcements we have been teasing; 18 year terms are back in the news; and more. We will be back, possibly early this week depending on developments, with a special episode on President Biden’s withdrawal from the presidential race. CLE credit is available from podcast.njsba.com.

Resignation Realities and Bullets Dodged (Part 4)

Tue, 16 Jul 2024 23:14:29 -0500

President Biden is hearing calls from many quarters to step down as a candidate. Donald Trump is shot. Questions of presidential succession and/or resignation abound. While it may seem these are unique and strange situations which the American republic has never faced, in fact, resignation has been a key American issue for centuries. Episodes well-known, and others rarely taught, are reviewed on our podcast this week, providing context and counsel for our listeners, and hopefully for the candidates themselves. The path to Mount Rushmore may take a turn away from the Oval Office, it turns out. CLE credit is available for lawyers and judges from podcast.njsba.com.

Disgrace

Tue, 09 Jul 2024 23:27:42 -0500

The Court’s opinion in the presidential immunity case Trump v. US, has sunk in. On reflection it is even worse that on first impression, and that is saying something. But just to condemn the opinion is not enough. Professor Amar distills the Court’s argument to its essence and explains why it completely collapses under any kind of rigorous scrutiny. Its abandonment of originalism and of the constitution’s own terms is laid bare. How could the Court go so astray? We also take a stab at this, and speculate on various forms of rot that it may reveal. CLE credit is available from visiting podcast.njsba.com after listening.

Debate Debacle, and Agency Atrophy

Tue, 02 Jul 2024 23:28:52 -0500

In an exhausting week, the Court released a number of long-awaited cases, and we had a consequential presidential debate. We look at several cases that many believe have profound implications for the administrative state; the opinions in SEC v. Jarkesy, and Loper Bright v. Raimondo clearly have the effect of increasing the role of courts and juries, among other things. We look at the opinions, the underlying themes, and the impact. Meanwhile, following the debate, questions of presidential succession of several types, and of the vice president, are everywhere; these happen to be areas of Prof. Amar’s expertise, and so we address them. NOTE: The Presidential Immunity case, Trump v. US, came down after we taped this episode; we have some early but important resources for you on this as well. CLE credit is available from podcast.njsba.com.

The Court's Originalism About Face

Tue, 25 Jun 2024 23:25:13 -0500

As the end of the term approaches the deluge of major cases has begun. Two big cases - the eagerly awaited sequel to the Bruen case - Rahimi - features an orgy of originalist theorizing and opining. Meanwhile, in Moore v. US - a case where Professor Amar and his team had an amicus brief - the tax power was upheld, but reading the opinion one might wonder if the same Court had sat for this case. We take a look at the opinions and give our own take on these impactful cases, even as we brace ourselves for many more in the week or so to come.

Protests, Mifepristone, and Bump Stocks

Tue, 18 Jun 2024 23:24:09 -0500

Akhil is in Boston this week and reminds us that the history of the American Revolution, where Boston is so pivotal, contains myriad lessons that provide insight into the student protests of today - so we look at this subject in some detail. Meanwhile, the Court issued opinions in two prominent cases, and Akhil seems to be reluctant to take “yes” for an answer in one of them, so we take another look at issues of standing. Does Akhil convince you of the correctness of his approach? Finally, the bump stock gun case, a statutory interpretation case, is lamented by many; we take a quick look at why it doesn’t have to be the last word on this matter. CLE credit is available after listening by visiting podcast.njsba.com.

Lear Jets, Books, and Virtue

Tue, 11 Jun 2024 23:54:38 -0500

The Court is taking its time on major opinion, which gives us a moment to turn to other matters. Ethics remain in the news; the Court’s annual financial disclosures contain a number of surprises - maybe not so surprising. There’s a lot to say there, and we have some proposals to improve the situation. President Biden takes a position on a pardon, and we take a position on that. Our listeners continue to provide great input on an ongoing conversation, and we take it seriously. CLE is available after listening from podcast.njsba.com.

The Jury Speaks

Wed, 05 Jun 2024 09:04:43 -0500

The verdict is in: guilty x 34. A jury of Trump’s peers had its say, but the ex-president couldn’t leave it at that, of course. On the legitimate side, the appeals are expected to begin soon. On the Trump bombastic side, he blasted every institution in the legal system for having the audacity to do their duty. Particularly in the case of the ordinary citizens of the jury, this bears examination, and so we do. We also preview some of the likely appellate issues, lay out the expected path through the courts, and take some interesting listener’s questions. CLE is available after listening at podcast.njsba.com.

Big Mouth on Campus

Tue, 28 May 2024 23:21:56 -0500

The nation has been riled by campus unrest surrounding events in the Middle East. Terms like “freedom of speech,” “academic freedom,” “right to protest,” “conduct vs. speech,” and issues of hate speech, offensive speech, safety, and more have arisen. We start our look at this situation where we always begin: with the Constitution. This episode aims to lay out the history, background, constitutional provisions, interpretations, cases, and overall approach to these matters, so we can then look at what is actually happening and be in a position to offer opinions and possible prescriptions. CLE credit is available after listening by visiting podcast.njsba.com.

Flags of Our Spouses

Wed, 22 May 2024 01:48:49 -0500

More than three years after the January 6, 2021 disastrous events, we remarkably are just now first learning of a complex series of events with profound ethical implications for Justice Alito. Like his fellow justice, Clarence Thomas, Justice Alito’s wife’s actions, possibly political in nature, have placed the Justice in a position where his own actions are being widely questioned. We take it one step at a time and offer our analysis, even if we don’t entirely agree with each other on this one.

Trials, Pardons, and Elephants

Tue, 14 May 2024 23:03:20 -0500

Donald Trump’s New York trial - where a conviction would be federal pardon-proof - has proceeded apace. we are pleased to bring a report to you from the trial itself, introducing you to one of Professor Amar’s star students in the process. Are there constitutional issues stemming from the trial? You bet, and we address some of them. Meanwhile, a number of listeners have asked similar questions recently, so we take that family of questions on, and sure enough, there’s a lot to discuss there as well. CLE credit is available from pdcast.njsba.com after listening.

Immunity versus The Rule of Law

Wed, 08 May 2024 04:09:35 -0500

This week we continue with clips from the oral argument in the immunity case (Trump v. United States). Most of this week’s clips come from attorney Dreeben (representing the Special Counsel, and therefore the people of the United States), and some of the Justices have at him, sometimes in way Professor Amar finds wrong-headed or worse. Our own argument is brought to bear upon these controversies, and a consistent way of addressing these questions emerges. Clarity on the argument emerges. CLE credit is available from podcast.njsba.com.

Sense and Nonsense on Immunity

Tue, 30 Apr 2024 23:05:14 -0500

The nine Justices heard arguments on ex-president Trump’s attempt to claim a sweeping immunity from criminal liability and prosecution. We present clips from the argument and our commentary, including some historical analysis of claims that Benjamin Franklin spoke in favor of such a thing (spoiler: NO), and many other claims which we had predicted in recent weeks. There is clear acceptance of some of the arguments we have made by many of the Justices, but questions remain to be sure, and we begin to address them in this first part of a planned two-episode arc of clip and comment. CLE credit is available from podcast.njsba.com.

Don't Touch but Do Convict

Tue, 23 Apr 2024 23:38:20 -0500

As we close in on oral argument in the Trump v. United States case wherein Trump asserts some sort of permanent presidential immunity, we close out our preparatory analysis. Impeachment’s relationship to criminal prosecution is explored. Some founding-era conversations involving, for example, John Adams, inform our discussion. Does the concept of double jeopardy play a role? Our hope is that these episodes prepare you for the oral argument with a comprehensive theory of how no one is held above the law even as a powerful executive sits high in We the People’s government. CLE credit is available after listening from podcast.njsba.com.

Crime Means Punishment

Tue, 16 Apr 2024 23:01:57 -0500

As oral argument in the Trump immunity case draws closer, we continue our discussion of presidential immunity from criminal prosecution. Do so-called “official acts” during a president’s tenure in office raise special considerations? Constitutional text seems to offer an easy way out of the case - but does it, really - and historical precedents enter the conversation. Ultimately, some basic principles of immunity emerge, which leaves us with a much richer understanding of the many issues than a bland look the text alone would Meanwhile, a listener’s question takes us abroad for a change, and developments in Arizona remind us of several of our podcast’s recurring themes. CLE credit is available by visiting podcast.njsba.com after listening.

Immunity Therapy

Tue, 09 Apr 2024 23:14:39 -0500

Former President Trump is making an extraordinary claim to the Supreme Court: that he is immune from criminal prosecution for crimes he may have committed while president. The Court has agreed to hear arguments on this proposition on April 25. We begin the preparation by posing the questions and taking them on. Professor Amar is an expert on Presidential immunities. Our analysis goes through originalism as well as precedent. This and subsequent episodes form an oral amicus brief of sorts - another “master class,” if you will. We also take a listener’s question seriously as we address the Comstock Act and related issues. CLE credit is available at podcast.njsba.com.

No Standing Any Time

Tue, 02 Apr 2024 23:04:11 -0500

The Supreme Court heard the case on the legality of FDA regulation of Mifepristone. Issues of standing seemed to dominate, so Professor Amar treats us to a master class on standing - in this case, and its recent evolution. He also suggests that at least one Justice might benefit by attending. In a wide-ranging episode, we also share excitement and some new scholarly insights that emerged from the recent EverScholar program led by Akhil and others; and the Trump gag order gives rise to some musings as well. There’s a lot for everyone in this episode, including CLE available from podcast.njsba.com.

History Will Judge

Tue, 26 Mar 2024 23:20:16 -0500

We round up our analysis of the opinion in Trump v. Anderson with Justice Barrett’s concurrence. All of this has raised many questions, particularly in light of the Court’s errant reasoning and other shenanigans. And it turns out that many of the best questions come from you, our audience! So we turn to those as well, both about Section 3, and other matters as well. We also look at the news media’s latest interesting directions, including takes on Justice Breyer’s new book and seeds planted by Professor Amar bearing fruit. CLE credit is available from podcast.njsba.com

Dissenting in Concurrence

Tue, 19 Mar 2024 23:07:04 -0500

The Trump v. Anderson lead balloon continues to smolder. This episode looks at the areas wherein the concurring Justices took issue with the per curiam, and they are many. Indeed, the three Justices who concurred only in the judgment disagree with the scope of the per curiam as well as its particulars, and their concurrence reads more like a dissent. Can we find areas of agreement with ourselves and the concurrences? What can we learn from all this? CLE credit is available from podcast.njsba.com.

What the Concurrences Should Have Said

Tue, 12 Mar 2024 23:22:57 -0500

The concurrence by three Justices (as opposed to that of Justice Barrett) in Trump v. Anderson concurs only in the judgment. We look at different types of concurrences and why a Justice might choose one type or the other; and as for this one, we find much to dissent with. We dissect the arguments and now with the benefit of a week since the opinion, we “slow it down” and take you carefully through the logic and illogic we find. Can we locate common ground among justices who claim to be unanimous but in fact significantly diverge? And how do we address our own position, which seems to lie firmly opposed to the entire Court? CLE credit is available from podcast.njsba.com.

Happy Anniversary Mr. Lincoln from the Court

Wed, 06 Mar 2024 02:12:03 -0500

The Court has ruled in Trump v. Anderson, and a strange day it was. An announcement on a Sunday of opinion on Monday; no justices present; metadata weirdness, and worst of all, a unanimous opinion that is unanimously wrong. Concurrences that are dissents. A nearly 250 year old electoral college system that somehow escaped the Justices. Notorious cases cited with approval. The opinion is a veritable patchwork of error. The autopsy begins.

Staking our Claim

Wed, 28 Feb 2024 00:09:45 -0500

We’re back, and still waiting for the opinion in Trump v. Anderson, which gives us a chance to highlight important new evidence that has come to light - thanks in large part to Professor Amar’s great law student team. It fatally undermines what seemed likely to be the reasoning the opinion was going to take. Will it matter? This is related to the role amici play in the Court ecosystem, and we look at how another case we had a brief in, Moore v. US, seemed to be possibly influenced by our brief by beginning our long-promised clip-based analysis of that oral argument. So a whole lot in a compact episode. CLE is available from podcast.njsba.com.

What the Oral Argument Should Have Said - Part 2

Thu, 15 Feb 2024 00:47:56 -0500

As promised, we return in very short order with the completion of our analysis and response to the oral argument in Trump v. Anderson - before the Court has ruled. Again, key clips from the argument are played and dissected. The previous Part I episode concentrated on arguments concerning self-execution of Section Three; this episode reviews many of the other issues addressed by the Court, from questions of the nature of the Presidential Election and the closely related Electoral College, to the persistent irritant of "officer" and "office" questions. As in the prior episode, Professor Amar “slows everything down” to allow you and hopefully the Court avoid sweet-sounding but flawed paths. This episode is posted 8 days early for this reason. Continuing legal education credit is available; visit podcast.njsba.com after listening.

What the Oral Argument Should Have Said

Sun, 11 Feb 2024 08:38:19 -0500

EARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key lines of argument; and the danger that the Court may be headed for another debacle on the scale of Bush v. Gore. Professor Amar “slows everything down” so the sometimes subtle misdirection that a fast-paced oral argument can induce is neutralized, creating clarity that we can only hope some Justice or some clerk sees in time. This episode is posted 4 days early for this reason, and next week’s will follow later this week as well. CLE credit is available from podcast.njsba.com beginning Monday, February 12.

20 Questions on Section 3 and Insurrection #1 - Special Guest Ted Widmer

Wed, 07 Feb 2024 01:15:09 -0500

Oral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake. We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise to the oh-so-timely topics of John B. Floyd and the conspiracy to prevent the certification of Abraham Lincoln’s election with the aim to prevent his inauguration and otherwise cripple the Union during the Secession Winter. This was of course integral to our amicus brief in the case, and this podcast offers additional support for its theses. We also review the promised “20 questions” that the brief explored - the perfect review or reference as the Court faces this vital case that has gripped the nation. CLE Credit is available from podcast.njsba.com.

A Self-Educating Gaffe

Wed, 31 Jan 2024 00:32:10 -0500

Oral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else. At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others. We analyze the debate - and the brief. And in that brief, Akhil identifies what he considers to be an egregious error, which is telling not only in its fatal weakening of the particular argument, but in the way it calls into question the entirety of their brief, and how it points the way to needed reforms in the legal ecosystem as a whole. This is an indispensable episode. CLE credit is available from podcast.njsba.com.

The Amicus Brief - Part Two

Wed, 24 Jan 2024 00:04:59 -0500

The legal world is abuzz with the impending oral arguments in Trump v. Anderson in a couple of weeks. In the forefront are the powerful arguments and compelling history that are introduced in the amicus brief from the Professors Amar. We continue to delve into the principal lines of reasoning in the brief, and how they take the starch out for some of the tropes that were found in the media. When you take the history one step at a time it is hard to escape the obvious parallels with the actions and inactions of ex-President Trump, and how they precisely align with the concerns the framers of the Fourteenth Amendment had that prompted them to advocate for and ultimately author, pass, and successfully ratify Section Three. Will the Court see it this way? Time will tell, but follow the discussion as we take you through it. CLE credit is available from podcast.njsba.com.

Friends of the Court - The Brief

Sat, 20 Jan 2024 11:47:22 -0500

The “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al. The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case. Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the course the Supreme Court should take in this case. This, and the episodes to follow, may be the most important episodes we have offered in the more than three years of this podcast. CLE credit is available from podcast.njsba.com.

Section Three Goes to Washington

Wed, 10 Jan 2024 06:22:12 -0500

The months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson. Amicus briefs will pour in - including the brothers Amar's brief. We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually honest brief-writer can make their best arguments even better by considering how their readers will read them, and what might be most useful to provide to those readers. It's not quite "handicapping" but it is insightful, as all America is wondering if this case might actually result in the removal of Donald Trump from Colorado's primary ballot, and eventually possibly more states' ballots as well. It has come to this.

Section Three Punditry: The Good, The Bad, and The Silly

Wed, 03 Jan 2024 00:20:49 -0500

The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well. Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise. We continue our attempt to help you make sense of these by choosing pieces that make the range of arguments out there. We do our best to present their argument and respond to it, bringing Professor Amar’s considerable armamentarium to bear for your benefit. And this week, Akhil has at least two - maybe three - major new ideas he brings to the national discussion. They can be found here first. CLE credit is available from podcast.njsba.com.

The World Turns to Section Three

Wed, 27 Dec 2023 00:10:42 -0500

The Colorado Supreme Court opinion on disqualifying Donald Trump, though long anticipated, landed like a tornado. Op-eds, pundits, academics, officials - all are weighing in. It’s a victory for democracy - no, it’s antidemocratic. Section Three is a dead letter - no, it’s self-executing. Trump is out - no, this helps him. America is reaffirmed - no, there will be violence in the streets. Liberals are split; conservatives are split. What will the Supreme Court do? Spend some time with Amarica’s Constitution and we will help you make sense of it, and we will present the best and worst arguments out there. And - get some CLE for your trouble! Visit podcast.njsba.com after listening.

Juries, Jarkesy, and a Joke

Wed, 20 Dec 2023 00:06:58 -0500

The administrative state is up for grabs, some say, in the case of SEC v. Jarkesy, which was argued before the Supreme Court recently. We have another “clip” episode, with Akhil weighing in on attorneys and justices alike. It’s particularly appropriate in this case, because so much of the case concerns juries and the 7th amendment - which, by the way, Akhil has written extensively on. That’s probably why he’s cited in so many of the briefs. We also heard some noise out of Colorado, by the way. CLE credit is available for this episode from podcast.njsba.com.

2 Experts, 3 Courts, Section 3, Part 3 - Special Guests William Baude and Michael Stokes Paulsen

Tue, 12 Dec 2023 09:04:51 -0500

The question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts. Last week the Colorado Supreme Court heard appeals of the District Court rulings. As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged definitive article. (Note: this episode is uploaded a day early because of the timing of the case.) They respond to the arguments made in court, as well as those that have been put forth in media and elsewhere - and we also consider the two other cases, in Michigan and Minnesota. The previous appearance by Profs. Baude and Paulsen were the highest rated episodes in Amarica's Constitution's 3 years, and this may be even more important for clerks, judges, and citizens to hear and consider.

Sandra the First

Wed, 06 Dec 2023 00:02:22 -0500

There is no shortage of tributes to the just passed Justice Sandra Day O’Connor, and rightly so, and this first female Justice richly deserves praise and memory. We aim to offer a tribute by taking her seriously as a Justice of ideas as well as the frequently mentioned deeply human remarkable woman she was. Fortunately, Akhil’s career has been intertwined with Justice O’Connor’s in a remarkable back-and-forth of ideas, cases, refinement, and legal innovation, so our perspective is a deeply informative one. Among other things, we look at the 10 most significant areas of jurisprudential impact in this remarkable but somehow underestimated to the end titan. CLE credit available after listening from podcast.njsba.com.

Sense and Nonsensibility on Section 3 - Special Guests Mark Graber and Gerard Magliocca

Wed, 29 Nov 2023 00:05:33 -0500

Donald Trump’s disqualification for the Presidency under Section 3 of the 14th Amendment is on the docket for the Colorado Supreme Court next week. We have brought the two leading experts on the history of this clause to our podcast. They have written extensively on the 38th-40th Congresses who passed and first acted under the amendment; on John Bingham, the “James Madison” of the Fourteenth; and they continue to provide pertinent historical details on almost a daily basis. Professor Magliocca testified in the District Court hearing on this. Suffice it to say, then, that the best arguments on both sides will be aired here first, before they are heard in Colorado, and you will be the judge today. CLE credit available at podcast.njsba.com.

Guns, Clips, and Rahimi

Wed, 22 Nov 2023 00:06:12 -0500

The Supreme Court heard oral arguments in US v. Rahimi, a significant gun case, and we get to work. We have pulled clips from the argument so you can hear the justices and advocates in their own words, and Akhil comments after each clip. The case is important in itself, with wide implications regarding permissible gun regulation, and it also touches on a number of key methodological points that teach about originalism - properly done, and perhaps at times, improperly done. CLE credit is available after listening by visiting podcast.njsba.com

Moore on the Brief - Special Guest Vikram David Amar

Wed, 15 Nov 2023 00:19:20 -0500

The Amars’ amicus brief in Moore vs. United States is the talk of the legal ecosphere. Akhil’s co-author, Professor Vik Amar, joins us for analysis of the precedents that followed Hylton - faithful and otherwise. This tour de force of legal analysis is perfectly suited for your CLE credit. We also look at recent comments from the Supreme Court on Moore’s issues, and survey the reactions to the brief’s release. Various arguments that purport to address some of the brief’s claims have emerged: in support, in conflict, and complementary; we analyze and respond to them.

Moore, in Brief

Wed, 08 Nov 2023 00:29:18 -0500

In our 150th episode, we present the amicus brief in Moore v. United States, authored by Professor Amar with his brother, Professor Vikram Amar. Reminder: CLE credit is available after listening by going to podcast.njsba.com. The brief begins with the provocative statement that most other briefs in the case have missed the point? What is the point that they missed? We explain how their focus on the 16th amendment misses the basic constitutional questions which the Court answered back in 1796 in the Hylton v. US case. Who says so? Some guys named Washington and Hamilton, to start. And this Lincoln fellow agreed later. But everyone seems to have missed this. You won’t.

Aisles, not Walls

Wed, 01 Nov 2023 00:23:03 -0500

The follies in the House have ended, for now. Many Americans looked upon the travesty with despair, wondering if our government might yet be up to the task of leading and reaching beyond party to find country and duty. We take a good look and search for places where reaching across the aisle might still take place - and we try to do our part and go beyond demonizing those not in our own party. Plus - the Amars’ amicus brief is up in Moore vs. US, and we open that door. This episode is eligible for CLE credit at podcast.njsba.com.

Speakerless

Tue, 24 Oct 2023 23:15:47 -0500

Still no speaker. Is it really the case that the House can’t do anything? How might it work? What about Section 3 of the 14th Amendment - does it play any role in the Speaker selection process? Meanwhile, we turn towards the other Jordan and see the dangers of insecure borders that are inherently hard to defend. Professor Amar explains how this simple fact led him to insights that resulted in a constitutional narrative quite different from those you may have been taught, and which makes certain predictions and conclusions. Does it stand up? We begin a process, which we will return to, of seeing where it leads us. A sweeping episode - eligible for CLE credit by visiting podcast.njsba.com after listening.

A Tale of Two Jordans

Tue, 17 Oct 2023 23:11:40 -0500

The House is at it again, and there is no Speaker in the chair as of this recording. So many implications - for Presidential succession, for democratic governance, for legislative stalemate. Meanwhile violence escalates in the Middle East. How are these connected? We explore all these, and Akhil has some fascinating originalist analyses - of history you surely didn’t know; of structural reasons that the Speaker can’t be in the line of succession; and a new textual analysis. Meanwhile - why can’t the House act? Has this happened before? (Hint: yes) NOTE: CLE Credit Available for this episode by going to podcast.njsba.com after listening.

Allen and Affirmative Action, Again

Tue, 10 Oct 2023 23:10:42 -0500

After the Court decided important voting rights and affirmative action cases last term, these issues are back either before the Court or apparently headed for it. Why? We look at Allen v. Milligan, and affirmative action in the service academies, and find that the bounce-back of what seem to be entirely unrelated cases in fact demonstrates important constitutional and indeed originalist principles. And who is at the center of all this? Justice Kavanaugh, once again. (CLE CREDIT IS AVAILABLE for lawyers and judges for this episode.)

Eleven Presidents - Special Guest Bob Woodward

Tue, 03 Oct 2023 23:06:50 -0500

The career of America’s greatest investigative reporter has spanned more than 50 years, and Bob Woodward has told the stories of eleven presidents, the Supreme Court, the Intelligence Community, and indeed the American political system with a penetrating, persistent drive towards the truth. (LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.) Today this titan spends 90 minutes with us, and the insights continue to pour out of him. One can’t help but see Nixon at one end and Trump near the other; Woodward certainly sees them, and even with his ever-present professional distance and restraint, it’s powerful to hear the most deeply informed perspective there has ever been on the Constitution’s most ambitious creation - the Presidency - and the extraordinarily aberrant occupants of that office.

Have Kavanaugh, Will Travel

Wed, 27 Sep 2023 03:47:28 -0500

It’s almost October, and the Supreme Court readies to hear a new set of cases. The Roberts Court seems defined above all by the Dobbs decision at this point. The opinion, authored by Justice Alito, has been exhaustively dissected, but looking forward, we see various states taking further and more extreme actions. What role will the so-called swing justices, some of whom wrote concurrences in the case, play in the litigation that the new developments will likely spawn? What of the dire predictions of many pundits in the aftermath of the case? And what about Amarica’s Constitution - what did we say, and what say we now? Travel the road with us.

Justice Jackson’s Santa Clause

Wed, 20 Sep 2023 07:40:51 -0500

It’s an assortment of topics as listeners response to some recent developments and nagging questions. We revisit the 303 case, specifically the dissent, as Justice Jackson lays out an interesting hypothetical that doesn’t produce, perhaps, the intended response - at least from Professor Amar. Meanwhile, Justice Alito is back in the news with his judicial Declaration of Independence - Akhil may not quite agree. We also have an exciting prelude to a big announcement about our podcast!

An Officer and a President

Tue, 12 Sep 2023 23:33:39 -0500

Two recent major podcast themes - section 3 of the fourteenth amendment, and judicial ethics - echoed through the news this past week. Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General, who says it is inapplicable to the President for reasons that may seem counterintuitive, even strange. We analyze the claims as well as what lies behind them in our constitutional system. CLE credit is available from podcast.njsba.com.

The Two Experts, Part Two - Special Guests William Baude and Michael Stokes Paulsen

Tue, 05 Sep 2023 23:08:24 -0500

***CLE Available*** We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency. This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice. We trace the possible routes such an effort might take; where would it be initiated - and importantly, who would be the final authority? Along the way we enter the Fed Courts classroom and look at - what else - the Constitution’s voice on these matters, in the 14th amendment, and elsewhere. Continuing Education Credit is available by going to podcast.njsba.com after listening.

The Two Experts on Section Three - Special Guests William Baude and Michael Stokes Paulsen

Tue, 29 Aug 2023 23:04:32 -0500

***CLE available*** In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions. These are leading conservative scholars who have gone where their methodologies, and the law, has taken them. Reaction has been swift and impassioned around the country, and in this episode they respond for the first time to some of the critiques, explore the implications of their work, and in doing so, they bring an integrity to our civic conversation. This is an important discussion of important issues, by real experts. Note: Continuing Legal Education Credit available after listening by going to podcast.njsba.com.

Georgia On Our Minds - Special Guest Ruth Marcus

Tue, 22 Aug 2023 23:22:29 -0500

Everyone needs a translator, and for decades there have been few better than Washington Post columnist, reporter, and editor Ruth Marcus. She has made understandable the intricacies of many a Supreme Court matter, not to mention the vicissitudes of other Washington institutions. Now, with Federal and State cases against former president Trump pending, the complexities are impressive, but we take you through them with Ruth’s help. There are also stories galore, with angles political, constitutional, and gleeful.

This Must Be The Place

Wed, 16 Aug 2023 02:43:02 -0500

Ex-President Trump faces a number of trials, and he doesn’t like where some of them are. Too many Democrats, or he doesn’t like the judge. Does he have recourse? No surprise - Professor Amar has written on this subject. There is a fascinating history behind it, an originalism analysis, and, most importantly - an answer. Changes of venue, bench trials, peremptory challenges, unanimous verdicts - they all find their way into this episode.

Third Time’s A Charm

Wed, 09 Aug 2023 11:42:19 -0500

He's baaack. Former President Trump has been arraigned once again, this time on serious federal charges related to the very heart of democracy - the election itself. Special Counsel Jack Smith continues to discharge his appointed function by bringing charges he deems warranted. Beyond Smith, however, do the American people have other means of redress? And if Trump is guilty, will these prosecutions prevent him from seeking and possibly gaining the White House? Akhil has some surprising ideas - and one that even surprises himself!

The Legacy of the Harvard Case - Special Guest Jeffrey Brenzel

Tue, 01 Aug 2023 23:07:00 -0500

We return to the affirmative action case, and again former Yale Dean of Undergraduate Admissions, Jeffrey Brenzel, joins us with his peerless expertise. The fallout of the opinion is enormous ,and we address some of its ramifications, including legacy admissions, donor admissions, private vs. public institutional options, admissions departments’ responses, and much more. What about the new frontiers of litigation that seem to be emerging, from scholarships designed to address racial disparities to non-race-conscious policies that nevertheless have impact on racial makeup? Former Dean Brenzel also offers a fascinating critique of the likely responses, showing how what might seem like a powerful response might actually be a foolish way to avoid real impact.

Amara Culpa, Amara Bene

Tue, 25 Jul 2023 23:54:51 -0500

What’s in a name? This week, it’s “Amar was wrong - Amar was right.” Two weeks ago it was “bigots” and many made much of that. So we take the feedback seriously and revisit it - you can judge the result. Meanwhile, news from Long Island brings the 4th amendment to the fore again, and in a somewhat different way. Different - how? Listen and find out how to create a better jurisprudence without amending the Constitution, and the real differences in the lives of the people this would make. Finally, Akhil has a new article in the popular press, and we introduce that for later elaboration.

Scrutinizing Affirmative Action - Special Guest Jeffrey Brenzel

Wed, 19 Jul 2023 23:03:34 -0500

It’s time to discuss the Affirmative Action cases from Harvard and the University of North Carolina, and we have brought in an expert on college admissions - Jeff Brenzel, the former Dean of Undergraduate Admissions at Yale. Jeff is so much more than that - he has taught at Yale as a lecturer in philosophy and humanities; is the former head of the Alumni Association, and is a current trustee at Morehouse College, to name some of his many hats. He offers a perspective that is a perfect supplement to the legal analysis from Professor Amar, as we make our way through 237 pages of Supreme Court opinion, concurrences, and fiery dissents, not to mention Akhil’s scholarship on this subject over the decades. It’s potentially a morass and we begin to find our way through it, to hopefully understand the stormy present and the uncertain future of college admissions.

The Rights of Bigots

Wed, 12 Jul 2023 00:11:09 -0500

A Colorado website designer refuses to create sites for gay couples’ weddings, going afoul of Colorado’s public accommodations law. Can she be compelled to author such a site? The Court has ruled, and we have the analysis. Along the way, we find ourselves discussing the intricacies of stipulations, and getting into the fine points of how one gets to federal court, even as we consider more mainstream questions as speech vs. conduct, the limits of rights, and some interesting hypotheticals. Professor Amar, as usual, has his own take on such things.

No Moore ISL

Tue, 04 Jul 2023 23:06:43 -0500

The Supreme Court has ruled in the Independent State Legislature case, Moore v. Harper. As we have from the beginning, we look at the case from the point of view of the precedents, of the history, the constitutional issues and implications, and the inner dynamics of the Court and beyond. As an author in a key amicus brief, Professor Amar is on the inside, and now so are you, as we take the opinion apart and explain the sometimes confusing matter of why the case was not rendered moot by later developments - and we look at the strange split among the various advocates on this question. We compare Chief Justice Roberts’ reasoning with our own from our brief, and look at the importance of a concurrence. At the end of the day, and of this podcast, you will come away with a thorough understanding of what could have been a disaster for the country but instead is a fine hour for the Court.

Four Clauses, Two Juries

Wed, 28 Jun 2023 08:36:59 -0500

It’s Supreme Court opinion season, and just before this week’s upload came the happy news of the Moore v. Harper decision. We’ll be back with details on that soon enough, of course. Prior to that, however, the Court issued some fascinating decisions last week, including in the case of Samia v. United States. This confrontation clause/Sixth Amendment case happens to hit one of Professor Amar’s many sweet spots; he has written on the subject in numerous forums over years and is a true expert. You will have a complex set of facts made legible, and a confusing set of key constitutional principles sculpted into an elegant formulation.

Whose Welfare?

Wed, 21 Jun 2023 00:07:38 -0500

The Supreme Court upheld various provisions of the controversial Indian Child Welfare Act last week. The facts of Haaland v. Brackeen, and some provisions of the Act, raise dramatic questions about questions of best interests of children, of the nature of tribal entities, and of who speaks for whom. The opinion itself largely sidesteps many of these questions and instead dives into areas which Professor Amar has long offered his expertise - going back nearly 20 years or more. No wonder, then, that he is cited twice in this case, and now our listeners have the chance to learn from the acknowledged expert on these matters.

The Judgment of History

Wed, 14 Jun 2023 10:08:52 -0500

All eyes are on Miami, where Donald Trump faces justice. But should it be Miami? Should it be this judge, who has such a checkered history in this case? What does the Constitution say about these and other issues this case brings forth? What about precedents? It’s just the beginning, but we are ready to take on these and other issues.

I Am Calabresi

Wed, 07 Jun 2023 06:33:26 -0500

In this season of college commencements, our eyes were caught by an honorary degree given to Yale Professor, Federal Judge, and scholar Guido Calabresi. This episode will review his many contributions to America’s constitutional landscape, and to Professor Amar in particular. Prepare for a Paper Chase-like journey through the world of Guido Calabresi as seen through the eyes of Akhil Amar.

Crossfire on the Ceiling - Special Guests Jack Balkin and Saikrishna Prakash

Wed, 31 May 2023 11:45:09 -0500

Congress is attempting to pass a bill that would implement a deal that President Biden reached with Speaker McCarthy and House Republicans. The issues are many - what does the President due if the bill is not passed? How imminent is the threat of default? Would a default be constitutional? Does the Constitution require any action by the President in such a situation? What does the 14 Amendment, Section 4, say about this? What does an originalist analysis of the global situation look like? We bring the best experts from both sides of the political aisle for a vigorous but intellectually honest debate on the subject, and in the process, hope to find some areas of agreement and wide areas to enrich our audience.

Duct Tape on a Warhol - Special Guest James Boyle

Tue, 23 May 2023 23:04:19 -0500

The Court treated us to an assortment of nude pictures this week. The occasion was a copyright case featuring the works of Andy Warhol and the photography of Lynn Goldsmith, and the persona of the late artist Prince. To enlighten us on the intricacies and melodies of copyright law and history, we bring the premier scholar in the field to our podcast - Professor James Boyle of Duke. The result is a far-ranging discussion ranging from Plato to Creative Commons, the latter an achievement due in no small part to Professor Boyle’s efforts. As for the case, it might be more important than the Court wants it to be, and we will tell you why.

Judging for Yourself - Special Guest Kathleen Clark

Wed, 17 May 2023 00:06:31 -0500

Justice Thomas remains in the news, as items old and new - from his ward’s private school tuition to his wife’s employment - appear on almost a daily basis. Friends of the Justice are quoted implying an effort to hide some of these transactions from public view. An infamous Supreme Court case, Shelby County, creeps back in. To help untie this web of questions, we are privileged to have Professor Kathleen Clark, a widely-recognized expert with an overwhelming resumé and Professor Amar’s seal of approval. The discussion is predictably energized.

Coronation Considerations

Tue, 09 May 2023 23:05:16 -0500

King Charles III has sat in St. Edwards' Chair, been anointed with oil, and enjoyed all manner of pomp. Akhil finds important echoes of the elevation of another III - George - back at the time of the American founding. In a busy week, we also note the release of Justice John Paul Stevens' private papers, with implications for important cases including - surprise! - Moore v. Harper. Finally, the New York Times has a lengthy, lead article about a controversial law school, and we offer our take on that.

More or Less Moore

Tue, 02 May 2023 23:51:14 -0500

The North Carolina courts are having fun with Moore v. Harper, reversing their prior rulings as their new (Republican) judges took the bench. We’ve previously considered what the Supreme Court might do with the NC Court reconsidering things - what about now that this decision has come down? Would this be “judicial restraint,” and what exactly is that frequently heard meme all about, anyway? We also take note of important dates on the academic calendar and that leads to all sorts of insights on college admissions, the meritocracy, and somehow that takes us back to the Supreme Court again.

Standing Rules

Tue, 25 Apr 2023 23:10:51 -0500

The Supreme Court issued a stay in the Mifepristone case, so everyone goes back to their corner - for now, anyway. They’ll be back. And when they are, the issue of standing may well be front and center. We grab this opportunity to give you a primer on standing, starting with the Constitution, tracking the Court’s recent strange path on this issue - and then we hear the Amar approach. Our listeners should be in a position to see the Mifepristone case clearly, as well as have a firm basis to keep from falling down on standing.

Judges and Adverse Events

Wed, 19 Apr 2023 10:33:36 -0500

The Judiciary continues to occupy the headlines, from the judge in Trump’s trial to judges and justices at the district and circuit level who somehow impact the lives of the whole nation. And Justice Thomas keeps knocking at the ethics door. We take it a step at a time, trying to be thorough. Everyone, it seems, wants to be more than they seem. So this time we look in some depth at judges being doctors, plaintiffs choosing judges, and regional judges offering national injunctions, while touching on some of these other areas as well.

Doubting Thomas, and doubting the doubters

Tue, 11 Apr 2023 23:00:51 -0500

Judges are in the news - all over it, in fact. Donald Trump, arrested and charged, attacks the judge in his case, and the judge is under a microscope. Deserved? Meanwhile, a judge is elected in Wisconsin. Many say this is the result of actions other judges took in Washington last year, and judges in Wisconsin react - and find themselves under scrutiny, too. Most prominently of all, a Supreme Court Justice’s lifestyle collides with disclosure requirements, drawing fire. How can citizens view these controversies in a reasonably objective light, and what are the standards? We take a shot at it.

Discretion and Indictment

Tue, 04 Apr 2023 23:46:04 -0500

The people of the State of New York have voted in Grand Jury to charge former President Trump with felony counts. He stands arrested and arraigned. If you were the District Attorney of New York City, and you had to make the decision whether to pursue this prosecution to this point, what factors should you have considered? What obligations do you have to the citizens of New York in this matter? What is your discretion? Do you agree with DA Bragg’s decision? Professor Amar will provide you with the background you need to approach these questions and make up your own mind.

Much to Bragg About?

Tue, 28 Mar 2023 23:08:45 -0500

The Grand Jury continues its work in New York, as a possible indictment of an ex-president and declared candidate for president awaits his fate. Meanwhile, investigations and more grand jury proceedings continue in Georgia and Washington on other weighty matters. And the political establishment is worried, so the House Republicans have upped in with a subpoena of the New York City District Attorney, even as he conducts his grand jury investigation. We don’t want to jump the gun on the virtues and facts surrounding any actual indictment, so instead we look at the many constitutional matters implicated here: grand juries themselves, secrecy in general, congressional oversight and its limits, campaign finance, “hush money.” Lots to talk about.

It’s Coming

Wed, 22 Mar 2023 10:53:27 -0500

Rumors swirl around the possibility of an indictment of former President Trump, from several sources - New York, Georgia, Washington. We wait with you, and rather than speculate, we will pounce when and if something happens. In the meanwhile, we give you some bonus material in the form of a great listener question, and some information about our favorite pastime.

The Lord Mayor Adams

Tue, 14 Mar 2023 23:45:52 -0500

The Mayor of New York City, Eric Adams, delivered a controversial speech at an interfaith breakfast, raising issues of church/state separation, gun control, and the role of religion in governance. Akhil uses the opportunity for some comparative constitutional analysis, and we look at the worldwide continuum of separationist approaches. The mayor is quite provocative on school prayer and quite confusing on guns, and we take that up as well. Meanwhile, we take a question on the judiciary in a far away and yet not so far away land.

Sing a Song (of) Mike Pence

Wed, 08 Mar 2023 00:18:38 -0500

Former Vice President Mike Pence has received subpoenas from Special Counsel Jack Smith. Pence claims that he has grounds to challenge this subpoena; he locates this in the so-called “speech and debate” clause, and some claim that executive privilege is relevant as well. We examine these clauses and doctrines deeply and offer our own conclusions on this issue. Speaking of doctrines, the Supreme Court has brought the “major questions” doctrine out once again in the student debt case, and we look at that. We also take a deeper dive on questions of standing - how do states have the ability to appear in court challenging this presidential action? It may not surprise you to hear that Akhil wrote a relevant article, over 30 years ago.

Torture, Time Travel, and Transformation

Wed, 01 Mar 2023 00:05:04 -0500

This week we take your questions; our listeners are engaged and clever, so Professor Amar is challenged again and again. How far do his 4th and 5th amendment views extend - do they reach torture? A fellow law professor asks a deep question about Reconstruction and Women’s suffrage which has deep implications. And we take a trip back in time to Akhil’s most treasured constitutional moments. Meanwhile, there’s more on Moore v. Harper and mootness.

Secrets, Boards, and Moots - Oh My!

Wed, 22 Feb 2023 00:24:42 -0500

People love to talk about the Constitution - that’s why we have a podcast. Sometimes, however, the conventional wisdom is quite unwise, leading to deeply unfortunate national narratives. Today we address questions such as whether the Constitution was foisted upon an unwitting nation, with the proceedings kept secret for decades. This is perhaps an old question, but in the news recently, we read of state public school curricula wherein objection is raised to the notion that the Declaration and Constitution are “remarkable.” So it matters that we understand all these questions - and their answers. We offer some. Oh, and speaking of “in the news,” Moore v. Harper is back in the headlines, with questions of whether it will be rendered moot hanging in the air, to the alarm of many. Professor Amar has a nuanced take on that.

Treason, Reason, History, and OurStory - Special Guest Kermit Roosevelt III

Wed, 15 Feb 2023 00:07:53 -0500

We continue our discussion with Professor Roosevelt of his new book, The Nation That Never Was. We revisit our debate on the Declaration of Independence and specifically, the meaning of “all men are created equal.” This has profound implications, it turns out, for evaluating the 1788 transition from Articles of Confederation to U.S. Constitution, the 1861 secession, and the great Reconstruction moment of the later 1860’s. Were these all secessions of a sort? Were they extra-legal? Were they treasonous? And finally, what sort of national narrative can we coherently draw from all this? Profound implications, especially when one considers the arguments and claims of the recent 1619 project, emerge.

Trillion Dollar Tricks - Special Guest Jack Balkin

Wed, 08 Feb 2023 00:06:25 -0500

***CLE Available*** The newly Republican House is threatening to refuse to raise the debt ceiling, raising the spectre of a US default. Given the 14th amendment, section 4’s prohibition on “questioning” the debt of the United States, all sorts of constitutional questions and strategies have been raised. We are fortunate to welcome Professor Jack Balkin, who knows more about this provision and this topic than anyone, to explain the origin of this constitutional provision, and why its history is directly relevant to today’s developments. Meanwhile, what about the trillion-dollar coin and other mind-blowing approaches to the problem? We’ve got the lowdown on those, too.

Declaration, or Gettysburg? - Special Guest Kermit Roosevelt III

Wed, 01 Feb 2023 00:17:40 -0500

A new book, The Nation That Never Was, by Professor Kermit Roosevelt III of the University of Pennsylvania Law School, engages in extensive historical, legal, political, and philosophical analysis of the American story. This is nothing less than a search for America's most useful and unifying narrative, even as we are living with the controversy and divisions that the “1619” and “1776” projects have wrought (or highlighted). Professor Roosevelt embraces some of Professor Amar’s key innovations and claims, including the centrality of the Reconstruction Amendments for valid originalist analyses, but he also makes claims that, shall we say, get Akhil’s (and Andy’s!) attention. So, too, will it grab your attention as you listen to a respectful debate.

Wait - Don’t Tell Me!

Wed, 25 Jan 2023 00:01:39 -0500

The aftermath of murders in Idaho saw another terrible crime in Massachusetts, and all these matters raise questions of criminal procedure and the constitution. We continue our 4th amendment reflection but add the 6th amendment, which has seen little attention on our podcast in the past. What can a lawyer fairly do in your defense? Add to this a discussion of the various anniversaries that this past week observed, and the long-promised answering of some great viewers questions, and you have a loaded episode.

The Idaho Murder Case in Constitutional Perspective

Wed, 18 Jan 2023 00:14:24 -0500

A tragedy in Idaho riveted the nation, as a dragnet, a manhunt, a search of garbage, a DNA test, a bail hearing, an extradition, and much more surrounded the eventual arrest and the onset of legal process in the case. Fortunately, Professor Amar has written on all these subjects, and we travel down these various roads, explaining and navigating their constitutional complexities.

Speaker-ish

Fri, 06 Jan 2023 17:09:00 -0500

We’re back early this week, as promised in our last episode, to help you take in the spectacle underway on the floor of the House of Representatives. We give you the historical background, the constitutional framework, and we look at some of the tactical and political machinations playing out in as close to real time as podcasts allow. We also peek at the still-simmering Santos situation, which takes us back into the law classroom for a look at the classic case of Powell v. McCormack and how it resonates in this situation. This is “next week’s episode” this week to keep you ahead of the game.

January 6th, Santos, and The Speaker

Wed, 04 Jan 2023 00:28:47 -0500

Two year anniversaries in Washington mean a new Congress, but this year January also brings the echoes and the legacy of January 6. These intertwine most intimately, as the end of the old Congress necessitated the windup of the January 6 Commission, a report, some referrals, and all sorts of constitutional questions. Meanwhile, it also brings a new Speaker election and why should anything be simple in Washington these days? If that wasn’t spicy enough, the usually routine seating of the new House brings Representative-ish Santos to Washington with all of his chameleon-like mendacity. We have to talk a bit about that, too.

Strictly Scrutinizing Moore - Special Guest Kate Shaw

Wed, 28 Dec 2022 00:34:31 -0500

The third season of Amarica’s Constitution begins with a special guest, as the star of the podcast “Strict Scrutiny,” Professor Kate Shaw, spends an hour with us. Like Andy and Akhil, she attended the oral arguments in Moore v. Harper - as she had attended many arguments when she clerked for Justice John Paul Stevens. Her insights on clerking for the Court are particularly timely, since Justice Stevens wrote the dissent in Bush v. Gore, which listeners know has been enjoying a lamentable rehabilitation, it seems, as the Moore case is argued and the infamous case keeps popping up. Professor Shaw also scoops her own podcast with a fascinating insight that links the January 6 commissions actions this past week with the Moore case, and you are there to hear it!

More on Moore - The Oral Argument, Continued

Wed, 21 Dec 2022 00:23:54 -0500

The oral argument in Moore v. Harper lasted approximately three hours. In our last podcast, we began an analysis by tracing some of the advocates’ arguments and justices’ responses. This time, we go to the key questions that lay at the basis of all the back and forth. We answer them, but more than that, we look at their underpinnings and construct a framework in which, we believe, all elements of the case fit together. For your trouble, audience, you will receive a master class in the law of “Fed Courts,” you will hear excerpts from a debate with Professor Amar, and even hear from the dictator of San Marcos.

Mr. Amar Goes to Washington - the Moore v. Harper Oral Argument

Wed, 14 Dec 2022 00:04:38 -0500

After a year of lead-up, Moore vs. Harper has landed at the Supreme Court for oral argument. Akhil and Andy travel to Washington and attend the three hours of argument in the Chamber. We play clips and analyze them - the words, the logic, the briefs, the lawyers, the justices, the clerks, the legal world, as America holds its collective breath while democracy itself hangs in the balance. This is the place for the most nuanced and informed analysis of the positions. We also post relevant documents at akhilamar.com/podcast-2, for your “one stop shopping” whether you are a concerned citizen, a member of the media, or even a Supreme Court clerk or justice.

Out-Ranked: Live Podcast with Yale Law School’s FedSoc Chapter

Wed, 07 Dec 2022 00:02:53 -0500

Amarica’s Constitution is invited to Yale Law School by the YLS chapter of the Federalist Society for a live podcast, and Yale cooperates by choosing this day to withdraw from the US News rankings of Law Schools. Naturally, we take that on, and it is the law students themselves that serve as our guests for a lively discussion. Beyond this issue, however, we take a look inside this iconic Law School, and we see what it’s like for the FedSoc members - perhaps outside of YLS’ ideological mainstream, but as you will hear, an impressive and thoughtful lot. Many of you will emerge from this listen with a sense that a valuable discourse can be had with them - and we can all agree that our nation needs more of that. Or so one would think - but does Yale Law School concur?

Ban the Box?

Wed, 30 Nov 2022 00:33:42 -0500

It’s Part 2 of our discussion of the Supreme Court’s affirmative action cases, with Harvard and the University of North Carolina defending their procedures We play clips from the oral arguments, with every justice chiming in along with the advocates, and our analysis follows. This time we address themes that recurred during the arguments - how does one determine an endpoint for racial preferences in admissions? How can we measure or pinpoint the educational value of diversity? What is the appropriate level of diversity - is it necessarily identical to the proportional representation in the population? And importantly, what might take the place of the “checkbox” that currently appears on most college applications, designating one’s race? Professor Amar’s 1996 article, co-authored with Neal Katyal, somewhat prophetically touched on these and other themes, and it is referenced frequently in these discussions.

100 Podcasts for Us, 40 Years for FedSoc - Special Guest Steven G. Calabresi

Wed, 23 Nov 2022 00:48:04 -0500

It’s Amarica’s Constitution’s 100th episode, and anniversary celebrations are in the air! We bring back Professor Steve Calabresi, who returns from the Federalist Society’s Lawyers Convention - which just celebrated its own 40th anniversary. The occasion was marked by a memorable Rosenkranz Debate, wherein Akhil took on Professor John Yoo on - what else? - the merits and demerits of ISL theory, and the forthcoming case of Moore v. Harper. Steve Calabresi was present at the debate, and he offers his color commentary . Of course, Steve was one of the three authors of the amicus brief that has received so much attention, together with our two Amar brothers, and we hear his perspective and his unique contributions. On top of it all, we celebrate our milestone by launching video, through our new Instagram account, amaricas_constitution, and soon, a TikTok account as well, with highlight clips, photos, and more.

Double Negative Action

Wed, 16 Nov 2022 08:51:41 -0500

Affirmative action is before the Supreme Court, and two cases - one involving Harvard, and one implicating the University of North Carolina - were recently argued before the Court. We have pulled out clips from the more than six hours of argument, culled the main arguments, and we present them to you. Listen to the voices of the justices and the advocates, and hear Akhil’s commentary and analysis. This is the first of a planned two-podcast series.

The Federalist Society, in Brief - Special Guest Steven Calabresi

Wed, 09 Nov 2022 00:18:46 -0500

The recent brief in the ISL case, Moore v. Harper, was notable in part because it was co-authored not only by our own Professor Amar and his brother, Dean Vik Amar, both well-known Democrats, but also by one of America’s best-known conservatives, Professor Steven Calabresi. Steve is a co-founder and national chair of the Federalist Society, and importantly, this is not the first time he has crossed the aisle in matters of national import. He joins our podcast and engages with his close friend, Akhil Amar, on a conversation that spans decades and gives insight in the founding, development, and present of this iconic conservative organization. Characters from Ed Meese to Guido Calabresi take the stage. You may be surprised as you learn the inside story from a consummate insider and scholar.

The News in Brief

Tue, 01 Nov 2022 23:54:07 -0500

It’s a week since the amicus curiae brief in the case of Moore v. Harper - the ISL case - was filed by Professor Amar, Dean Vik Amar, and Professor Steven Calabresi, and the reaction has been pouring in. What arguments have been made to attempt to refute the brief? The answer may surprise you. Meanwhile, we take you through the remainder of the brief, explaining and expounding, providing backstory, and challenging you to reason along with us. We suggest that you print out the brief to make it easier to follow along. It’s a unique opportunity to delve into what may be the most important Supreme Court case of this decade, in advance of the December 7 oral arguments.

The Brief in Brief

Wed, 26 Oct 2022 07:24:34 -0500

Professor Amar and colleagues have weighed in (heavily) on the ISL danger, as they filed a brief with the Supreme Court in the case of Moore v. Harper. The brief is garnering wide attention with its powerful argument, as well as an innovative format. We review the background to the case and the brief, and then take you through the argument point by point. Law and history come together to make the case in this most consequential matter. Judging from the response, the country is watching.

Sweet Hugo in Alabama - A Special Live Podcast

Tue, 18 Oct 2022 23:45:13 -0500

Amarica’s Constitution is “On the Road” in Alabama for the dedication of the Hugo Black Memorial and Park. Akhil is the keynote speaker and we record this live podcast at the Symposium that preceded Dedication Day. For the occasion, we look at the great originalist and see that his moment is now - not only in Alabama, but at the Supreme Court, where case after case tracks his issues, his reasoning, and his method. Indeed, Black’s greatest cases, including Adamson, Everson, Engel, and Gideon, find continuing relevance today. Thus informed, we take a look at the coming term’s big cases through the Hugo Black originalist lens. The audience chimes in with questions; a great time was had by all.

Zelig On The Court - Special Guest Brad Snyder

Tue, 11 Oct 2022 23:04:03 -0500

Our judicial Zelig, Felix Frankfurter, continues to grab our spotlight as his biographer, Brad Snyder, joins us again - this time, as a sitting Justice. The many landmark cases that came Frankfurter’s way on the Supreme Court allow us to contrast his method of jurisprudence - be it “Thayerism,” “judicial restraint,” or something else - with originalism. This means that Hugo Black, Frankfurter’s colleague on the Court (it’s complicated), takes the stage as well, as we look at case after case and see how these different approaches, and their wielders, fare.

Zelig of the Court - Special Guest Brad Snyder

Wed, 05 Oct 2022 01:22:39 -0500

Do you know who was Franklin Roosevelt's most trusted advisor? Do you know who practically invented the law clerk infrastructure and controlled the clerk assignments to 60% of the justices at once? Do you know who was a key early reporter for The New Republic? Do you know who was the first Jewish professor at the Harvard Law School? Who was the sharpest critic of the Supreme Court only to become a Justice of that Court? Who went to Versailles and advised both Weizmann and T.E. Lawrence? Who fought bitter battles with Harvard's President again and again? These are all the same person: Felix Frankfurter. A new and important biography of Justice Frankfurter tells this incredible story, and he joins our podcast today: Professor Brad Snyder. Believe it or not, the superlatives you just read only scratch the surface of this Man Who Was Everywhere. You have to hear it all.

The Court’s Other Amy

Wed, 28 Sep 2022 04:39:03 -0500

It’s almost the First Monday in October, so the Supreme Court term is upon us. Those who follow the Constitution may turn to Amarica’s Constitution for their Constitution-listening, and after meeting Amy Howe, founder of SCOTUS Blog, they will turn to that amazing resource for their Court-watching. So, join us. Meet today’s special guest, Amy Howe; meet SCOTUS Blog; meet the new term; and see why Professor Amar and colleagues regard her as a rock of integrity, completeness, and civic virtue.

Loving Lincoln, and Castigating Kastigar

Tue, 20 Sep 2022 23:03:12 -0500

Happy Constitution Week! Our Fifth Amendment journey takes us in a somewhat unexpected direction, as we pit Abraham Lincoln against the Supreme Court on the Fifth as well as on several other areas of contested constitutional law. Then it’s back to the near future as we look at how today’s Fifth confusion could be tomorrow’s clarity - and we look at the Court to see if there are five votes for a new Fifth. Then we top it all off with an exciting - very exciting - announcement.

Masters, Monarchs, and Mangling the Fifth

Wed, 14 Sep 2022 00:21:17 -0500

The controversy over a possible appointment of a special master in the. Mar-a-Lago search matter is a timely trigger for our discussion, especially in light of our recent 4th amendment episodes. Meanwhile we continue a rethinking of the fifth, and of course Professor Amar has a theory that unites everything. There’s also the Queen”s death, which is also fascinatingly relevant, and somehow Lincoln finds his way in, as he usually does.

Trump Says His Name

Tue, 06 Sep 2022 23:01:33 -0500

Our last episode explored how the self-incrimination protection came about, and how much of safeguards now lie outside the fifth amendment. Given that, what is left? Surprise - Professor Amar has a theory, and once again, it can change everything. Well, almost everything - Donald Trump is still up to his old tricks. Why does he say his name, and nothing else? Also, what’s going on back in Florida, and what does it mean for Trump’s hapless attorneys? There will be a lot to explain to your friends after you finish this one.

Trump Takes the Fifth

Wed, 31 Aug 2022 00:19:35 -0500

The Trump investigations are everywhere. This week we move from Mar-A-Lago to New York, where the Attorney General had some questions for the ex-president. He took the Fifth, repeatedly if unsurprisingly. We look at it, but to do so we look at the Fifth Amendment itself, its roots going back millennia, and its evolution as American law. So you think you know the Fifth? We beg to differ. Prepare for an entirely new way to think about this venerable protection, as Professor Amar offers a framework that will provoke, surprise, and hopefully, delight.

Afraid to Ask: Hamilton and a Wealth Tax

Tue, 23 Aug 2022 23:02:06 -0500

Following Akhil’s MSNBC appearance on “Velshi,” we elaborate on how a Republic is a Democracy. Does it matter - oh yes, and we explain why. Then we go back to the future - to the biggest Supreme Court case of the 18th century, with rock star Alexander Hamilton arguing, and the echoes resonate today. So why haven’t you heard of this case? Well, now you will, and follow a step-by-step explanation you won’t find anywhere else.

Search-A-Lago

Wed, 17 Aug 2022 00:55:39 -0500

***CLE available*** Ex-President Trump’s residence - or is it his club? - at Mar-A-Lago was searched, and US government papers seized, pursuant to a search warrant which has since been made public. Warrants, papers, searches, seizures - all words found in the Fourth Amendment. We take the opportunity to upend what every American thinks they understand: that searches require warrants, that probable cause is a must, that failure to heed these dictates means the fruits of the search will be suppressed. Professor Amar presents an entirely different way of thinking about the 4th Amendment, and when he is done, you will wonder how you ever thought about it any other way. Armed with this understanding, we then turn to Palm Beach and assess the Justice Department’s actions in this light. Continuing Education Credit is available after listening to this episode by visiting podcast.njsba.com.

Originalism on Trial

Wed, 10 Aug 2022 15:23:08 -0500

The recent Supreme Court term gave rise to a virtual anointment of originalism, as the Court in case after case declared originalism the approach and method that determined the result. Professor Amar has spent a career on the study, exposition, and refinement of originalism, and that expertise is employed here to respond to these developments. We begin a look at the great cases and controversies of American history, and through them, we define an originalism that has a clear method, recognizes its own limits, responds to critiques, and is consistent with a recognizable America - not an America with a Constitution and a jurisprudence for liberals or for conservatives alone.

Time is Now

Wed, 03 Aug 2022 00:51:39 -0500

Events continue to unfold, causing us to look back, forward, inward, and outward. A new bill is introduced which takes us back 20 years and ahead 18 years. Professor Amar conducts an unprecedented interview - maybe we shouldn’t use that term - and you are there. A moot court from 23 years ago reappears in the present. And lessons from nearly 250 years ago will unfold in the next year - and affect us forever. Professor Amar unwraps this scroll.

Tackling Kennedy

Tue, 26 Jul 2022 23:35:06 -0500

Our tour through the late-term Supreme Court cases now runs through the football field where Coach Kennedy sits praying on the 50 yard line. Professor Amar calls the play - a run through the string of cases that took the Court to this point by way of Abington and progeny. We wind up in this fact-specific case with turns and twists, and detours through the pledge of allegiance and an old Missouri case along the way. It’s a master law school class in case analysis, and we aren’t so sure that the majority passed.

Separate or Equal

Wed, 20 Jul 2022 08:05:48 -0500

***CLE Available*** Our review of the major cases decided at or near the end of the recent Supreme Court term continues with Carson v. Makin, The case immediately brings to mind the often-invoked metaphor of the “wall of separation” between church and state. Professor Amar takes us back to the Founding and the origin of this meme, and in so doing, gives us an originalist analysis of the Establishment and Free Exercise clauses of the First Amendment. By now our listeners should know the next step, as the Reconstruction must be brought in. When we have finished looking at the text, the history, and the structure of the Constitution and its amendments, the case itself falls neatly into place.

The Long and The Short of Bruen

Tue, 12 Jul 2022 23:00:30 -0500

We continue our look at the big cases that rocked the end of the Supreme Court term. Turning to the Bruen gun case, we see a long opinion and two short concurrences. An ambitious, contentious opinion by Justice Thomas riled many, especially in the wake of the continuing plague of shootings around America. We draw particular attention, however, to concurrences that may be the real news here. And if this case indeed has great impact, is it in its short-term policy implications, or its long-term constitutional lessons - or somewhere else? The case turns out, in Professor Amar’s “Princess Bride” view, to perhaps not mean what you think it means.

Unprecedented

Wed, 06 Jul 2022 22:57:36 -0500

The nation continues to be abuzz over the Supreme Court’s recent decisions that rounded out the term, particularly in the Dobbs case. We take a careful look at the dissent in this case; in particular, at the various claims that it makes regarding the majority opinion and its overall approach to evaluating Roe and Casey. We reflect on the significance of the opinion and its methodology, particularly as we look to analyze the Bruen and Carson cases in forthcoming episodes, and as a big one – the ISL case – looms in the coming year.

Special Episode - Prediction and Prescription

Mon, 04 Jul 2022 15:50:25 -0500

The Supreme Court term came to a roaring end, and we couldn’t wait a week - so here we are with an extra episode for you. At least three huge decisions came down, and we begin to assess them. The newspapers are ablaze with outrage and shock - but are our listeners equally shocked? We look at the opinions through the lens of our body of work - particularly appropriate now since this marks the 1 and a half year mark of Amarica’s Constitution. In addition to the now-final Dobbs opinion, we look at the role of Justice Kavanaugh, and how it compared with expectations and predictions. Lots more for you in this special additional episode.

The Real Steal, Part 3 - Special Guest Vikram D. Amar

Wed, 29 Jun 2022 01:52:09 -0500

In the concluding episode of this series on the bogus ISL theory, we review the relevant cases and precedents. As is our wont, we include the “best” cases for the “other” side, and review all the arguments. Dean Vik Amar joins us once again. Note: we have not ignored the elephants that have emerged from the courthouse in the past week, and a special "Extra Episode" of Amarica’s Constitution will follow later this week in addition to this regular episode.

The Real Steal, Part 2 - Special Guest Vikram D. Amar

Wed, 22 Jun 2022 00:01:00 -0500

This episode presents Part 2 of our series on the grave threat that “Independent State Legislature” theory presents to the Republic, and why it is completely, irrefutably wrong. We welcome Dean Vikram Amar, who co-authored with Akhil their current article, about to be published in Supreme Court Review, which is already widely cited in the media and in forthcoming articles by other scholars. This article attempts to put to rest ISL theory by showing how it is wrong from every conceivable angle of analysis. We take up that analysis, beginning with the text, history, and structure of the Constitution, and then through an ingenious analysis of actual practice. We have been saying that this issue is coming, and by all accounts, it’s here.

The Real Steal - Part One

Tue, 14 Jun 2022 23:11:38 -0500

As the January 6th committee’s hearings continue, the nation is treated to recounting of wild, false claims of election fraud, and outrageous schemes which countenanced blocking or surmounting the duly conducted vote in the electoral college. What was behind those schemes? A so-called theory of “Independent State Legislatures.” What’s that? How would it further the undermining of the electoral process? Is it still a threat? And where did it come from? Here’s one hint that should tell you something about its DNA: it is in large part the residue from the notorious, noxious, nullity that was Bush v. Gore. Professor Amar, and his brother, Dean Vikram Amar, have teamed up to head off this danger to the Republic, through a new article which is already widely acclaimed and cited. Today Akhil and Andy (joined by Vik in subsequent episodes) begin a three-part series that will explain the threat, review the background, and then take it on squarely and decisively.

Guns, Legislation, Uvalde, and Bruen - special guest Adam Winkler

Tue, 07 Jun 2022 23:00:43 -0500

As the nation continues to reel after the massacre at Uvalde, we are joined by Professor Adam Winkler, the leading expert on gun policy and gun laws, who takes us through the range of the possible when it comes to gun legislation. What might Congress do, what are the limitations, political and constitutional, and what is the significance of the upcoming Supreme Court decision in Bruen? Professor Winkler also offers a primer of sorts on the terminology and landscape of this highly contentious, highly fraught area of law and policy and a crucial time.

After Uvalde - What?

Tue, 31 May 2022 23:37:16 -0500

The nightmare of gun violence haunts America today. What can be done? So many Americans are aghast at assertions of gun rights in the face of absolute evil. It seems incomprehensible. Our job it to render this domain legible, navigable, and at least potentially solvable. We begin in this episode with a review of the Constitutional landscape of rights in general, gun rights in particular, and we put an imminent Supreme Court decision on carrying arms in perspective. We also preview our next episode, which will feature an important guest who will do much the same clarification of the legislative world we will soon enter.

Is There a Dobbs Deal?

Tue, 24 May 2022 23:04:41 -0500

***CLE Available*** We’ve spent the last few episodes examining the leaked draft opinion in Dobbs. But this isn’t yet the opinion of the Court. We look at past “stolen” decisions, and discuss how and why it could happen again that the Court seemed to be going one way and wound up heading in a surprising direction. Which Justices might form a different five? What could bring them together? Could it make a difference to women, and to the nation? What can each “side” offer the other? Listen to this creative and most important legal and political discussion.

After Dobbs

Tue, 17 May 2022 23:44:35 -0500

Our recent podcasts, and their discussions of the constitutional landscape that will follow the release of the Dobbs opinion, have been heard, amplified, distorted, echoed, and - of course - tweeted in forms true and unrecognizable. We were the impetus for a lead op-ed in the Wall Street Journal, the subject of various blogs, and the target of innumerable media posts. Nevertheless, we carry on, looking at key precedents and their future, analyzing Justice Alito’s framework for evaluating unenumerated rights, and beginning to think about how it might happen that Alito may not have the last word in this case.

The Memes of Dobbs’ Leak

Tue, 10 May 2022 20:10:39 -0500

As the Dobbs/Supreme Court leak, and its would-be draft opinion, percolate through the public and the media, certain alarms are sounded again and again. Are these worries realistic? What does the opinion say; what are the constitutional arguments and questions; where are the justices on these questions? We look at some of the more prominent pundits saying the more meme-like (and frightening) things, and put them to the test.

Woe is Roe

Wed, 04 May 2022 00:48:08 -0500

***CLE Available*** The bombshell news this week was the leak of a purported majority opinion of the Court in the Dobbs case - the Mississippi abortion 15 week law. Needless to say, the media were breathless in short order, and apocalyptic articles began to appear everywhere. For our part, we read the draft opinion and have a dissection and analysis of it start to finish for you. We also discuss some previous Supreme Court leaks, and ask what arguments Justice Alito may have missed, which may be a preview of dissents to come. Continuing Legal Education credit is available after listening by visiting podcast.njsba.com.

Citizenship and Citations

Wed, 27 Apr 2022 10:50:48 -0500

Professor Amar, it is frequently said (by him, among others), has been cited by the Supreme Court more than anyone else in his generation. This week, he is once again cited. We discuss the case, the citation, the underlying theory, and citation in general. Along the way we find ourselves in company with the Great Dissenter, with his namesake John Marshall, and many more. This small citation in a concurrence takes us to a legal theory that has enormous implications.

Is Jackson Commissioned?

Tue, 19 Apr 2022 23:34:55 -0500

Justice Breyer’s unusually worded “resignation letter” raises a host of constitutional questions that perhaps he did not intend. Who is asking them? We are. A cascade of confusion - from resignation to confirmation to reconsideration to commission to oath. The Biden Administration says we should ask William Rehnquist about it, because he told us the answer. Except he didn’t. Listen to it all, and while we’re at it, we also wind up our clips from the hearings with contrasting Senators (understatement) - and Dean Vik Amar drops in to help with it all. A jam-packed episode this week!

Rights and ”Justice”

Wed, 13 Apr 2022 17:29:55 -0500

Judge Jackson - or is it Justice Jackson (we discuss) - is confirmed, but we aren’t done discussing it yet. Distilling the non-nonsensical questioning down, it really was an attempt to probe into the question of rights; who decides, and how, what rights Americans have? We listen to the colloquy and use it as a jumping-off point for a wide-ranging discussion of fundamental, enumerated, and unenumerated rights - among other things.

Graham Crock-er

Tue, 05 Apr 2022 22:57:05 -0500

The Senate Judiciary Committee hearings have concluded, as has the committee vote. We put the Senators, and the Judge, back on the stage. We listen to them and comment. What do we know now about the Judge, and about the Senators, in terms of their view of their respective constitutional roles, and their constitutional views? Their own words are replayed, and then Akhil and Senate expert Vik Amar critique them - and educate us. Oh, and Lindsay Graham had something to say.

The Hearings According To Durbin - Special Guest Vikram D. Amar

Sat, 02 Apr 2022 11:54:12 -0500

We’re a little late this week, but it’s worth it, as we are able to report on a lengthy conversation that our (returning) guest, Dean Vik Amar of the University of Illinois School of Law, had with the Chairman of the Senate Judiciary Committee, Illinois Senator Dick Durbin, just hours before our podcast taping. He offered Vik and his students a truly inside look at the Supreme Court Confirmation Hearings just conducted, as well as his perspective on confirmations in general, and some truly surprising perspectives and possible ideas for reform - and now, our listeners have this early access to them.

Confirmation Correction - Special Guest Vikram D. Amar

Tue, 22 Mar 2022 22:54:44 -0500

Ketanji Brown Jackson prepares to testify at Senate confirmation hearings, and the air is filled with confirmation bromides. It is said that a judicial nominee cannot speak about past cases. Or about cases that might come up. Or about legal theories. Is this true? Some say that all that matters is that the nominee be qualified and admirable. Can the Senate inquire further? How far can a nominee go in committing themselves on anything? Fortunately, we have a leading Senate expert, law school Dean, public intellectual - and, an “Amar” on “Amarica’s Constitution.” No, not Akhil, but Vik Amar, Dean of the Illinois College of Law and the first American of Indian descent to clerk for a Supreme Court Justice, to be a major Law School Dean. Listen to the “brothers-in-law” as they prepare you for the hearings. And - even more important - hear about their forthcoming law review article that may do nothing less than save the country. No kidding.

Lawyer of the Century

Tue, 15 Mar 2022 22:02:16 -0500

Walter Dellinger and Charles Black are hard acts to follow, but our concluding role model is up to the task. Telford Taylor was legislator, war hero, Nuremberg prosecutor, international law pioneer, law firm founder, tenured professor and scholar extraordinaire, public intellectual, and always a principled, skilled lawyer. Professor Amar admired his work from afar, and that admiration led to a personal meeting, to Akhil’s first major law review article in the Harvard Law Review, and ultimately, to the opening scene of his latest book. Meanwhile, in the news, we also take time to look at the latest developments, statements, and misstatements filling the air on the notorious Texas abortion law, SB8.

The Music of the Law

Wed, 09 Mar 2022 00:07:03 -0500

Continuing our exploration of inspirational models in the law that deeply influenced Professor Amar’s career, today we learn of a predecessor of last week’s model - the newly passed Walter Dellinger - as we hear of the life of Charles Black. A son of the deep South, Black made an enormous mark as he was a vital part of the team that won Brown vs. Board of Education, and in the aftermath, we see his genius as he defends the decision, and separately reflects on how he came to his principled positions. We see this as he picks up pen and paper and leaves these notes for the ages. You will now hear these writings and Akhil’s reaction to them, and ultimately they will lead us back to considering the emerging picture of Ketanji Brown Jackson, nominee to the Supreme Court, in these lights.

Dellinger Departs, Jackson Arrives

Tue, 01 Mar 2022 23:50:02 -0500

The great Walter Dellinger, one of Professor Amar’s role models in the law and one of the great lawyers of the past century, moves Professor Amar to present and review his role models and why they matter to all of us. Dellinger’s career was so enormous in its scope, so impactful in its action, that it forms a scaffolding for considering topics as varied as the most important SCOTUS footnote ever written; other momentous careers such as Earl Warren, Charles Black, and Telford Taylor; the lighter side of working for President Clinton; the last public statements of Benjamin Franklin and now Dellinger himself - and much more. Fittingly, Dellinger’s last writing has impact beyond his demise, as he provided background and perspective for the momentous nomination by President Biden of Judge Ketanji Brown Jackson to Associate Justice of the Supreme Court - and so we consider that.

Your Turn; Our Take

Tue, 22 Feb 2022 23:45:33 -0500

We deliver a long-promised episode, as the audience guides the discussion this week with their penetrating questions. Was Akhil too easy on Mitch McConnell? How about bringing on expert X or Y? Should SB8 prompt a new exception to Younger abstention? Oh, and by the way - what is "Younger abstention?" Can judges be ousted without impeachment? As you see, we have a very educated audience. Indeed, once you have completed the podcast, you will find yourselves that much more informed, as these sometimes complex concepts are explained in Akhil’s usual approachable if inimitable way.

Now Now Now - Guest Jesse Wegman (Part 2)

Wed, 16 Feb 2022 08:53:44 -0500

We continue our discussion of the Equal Rights Amendment. Is it the proposed ERA, the adopted ERA, or the dead ERA? Some say we already have an ERA in the 14th and 19th Amendments; Akhil and Jesse explore what some women, such as Elizabeth Lady Stanton, had to say about the 14th Amendment and equal rights back in the day. The SCOTUS was asked to weigh in on amendment adoption dates back in the 1930’s - they punted. Would that happen again, should this reach them? And - would it be better to have an ERA “Now Now Now,” as many insist, or is there a better way? Finally, Professor Amar is about to do something he hasn’t done in 22 years. What is so important that it prompted this?

A New ERA - Special Guest Jesse Wegman

Tue, 08 Feb 2022 23:21:44 -0500

The Archivist of the United States is in the news, and if that’s happening, you know some esoteric constitutional question is up. Fortunately, “Amarica’s Constitution,” is on the case. We have New York Times Editorial Board member, Jesse Wegman, who wrote for the Times on this subject recently, raising all sorts of issues - which Akhil is happy to answer for Jesse and for all of us. Meanwhile, this is all about the Equal Rights Amendment, and Amendments in general, and Article V of the Constitution, and what about ERA anyway - what would it do? All this and more - with feeling. There’s a lot here, so this is part one of two.

Gary and Gorby - Special Guest Gary Hart

Tue, 01 Feb 2022 23:16:35 -0500

We continue our mining of Gary Hart’s wisdom, as the former Senator, and Presidential candidate weighs in on the sort of questions a public and political intellectual confronts over a lifetime. How can we think about Ukraine and Russia in light of our past? Would tensions between the US and Russia today be particularly different if Gary Hart had won the presidency in 1988, given the story he tells about his prospective inauguration? The richness of a conversation with Gary Hart is such that even a passing reference produces a new insight on how the Cold War might have taken a different path. We hear inside references on what it’s like to run for President from a principal player in 3 presidential races: 1974, 1984, and 1988. Inevitably, stories never before heard emerge, and they are here for you to savor.

Debate Debate

Tue, 25 Jan 2022 23:16:59 -0500

Amidst a host of state-level voting law initiatives, the Senate considers voting rights bills. Without 60 votes on hand, the Democrats have proposed extending the “nuclear option” to some or all legislation; this past week, they debated and voted on it. We have digested the 13 hours of debate and play for you relevant clips, with Professor Amar weighing in on who has the history and/or the Constitution right, and who is playing with facts and founders. A potpourri of Senators, from Leaders McConnell and Schumer, to recent Presidential candidate Klobuchar, and numerous others, weigh in and debate on whether or not the Senate shall, in fact, debate.

Heart to Hart: Filibuster Finis - Special Guest Gary Hart

Tue, 18 Jan 2022 23:15:14 -0500

Exactly 10 years to the day prior to the January 6 outrages, Professor Amar and former Senator Gary Hart teamed up for a history-changing article explaining how the filibuster could become a thing of the past. In ensuing years, the “nuclear option” they outlined was invoked on presidential appointments, then Supreme Court nominations, and now it is so close to being gone for good. But this is just one episode in an epic American life served in the public sphere, and we go afield to begin to tap the endless insights of this man who was nearly President, and wound up doing, and knowing, more than you can imagine - and he begins to share it with us. Part one of two special episodes.

The Year and The Questions, Part 2

Tue, 11 Jan 2022 23:43:02 -0500

As year 2 of “Amarica’s Constitution” begins, we complete our year 1 recap with remarkable clips, some from outstanding guests: Neal Katyal on preparing and executing Supreme Court advocacy (including the specifics of a recent case he argued); Nadine Strossen (on how this ACLU leader has some surprisingly nuanced positions that the ACLU might not love); and Linda Greenhouse (on sources - who has them, and who doesn’t). We also hear from the SCOTUS Justices in oral argument clips from one of our most popular episodes, on abortion, unsurprisingly. We update our thoughts on the Biden commission. Finally, your questions are getting better, prompting Akhil to give respectful (!) and nuanced answers.

80 Years in 80 Minutes - A Special Live Episode

Thu, 06 Jan 2022 01:42:01 -0500

Amarica’s Constitution takes to the road, as the Yale Club of the Palm Beaches, Florida, hosts us with a live audience of constitutional aficionados! The long-delayed book tour of “The Words That Made Us” finally assumes a recognizable form, as Akhil gives a whirlwind tour of the first 80 years of America’s Constitutional Conversation. Aside from a sense of the book, you should come away from this episode knowing 20-30 things you either didn’t know, or wrongly understood before. The audience then questions Professor Amar from founding to Trump - literally, as no holds are barred.

The Year That Was, and Your Questions

Tue, 28 Dec 2021 23:35:23 -0500

Amarica’s Constitution celebrates one year of podcasting, and what a year it was. From the steps of the Capitol to the bench of the Court, we were there with coverage and analysis. In this episode we replay clips from, among others, Bob Woodward, Philip Bobbitt, and Neal Katyal, as they discussed and debated everything from impeachment to abortion with Akhil and Andy. And, as long promised, your questions submitted throughout the year are answered!

Roberts Court, or Trump Court? A Conversation with Linda Greenhouse

Tue, 21 Dec 2021 23:51:25 -0500

The Supreme Court is still in the news, with vaccine mandate follies and more, and we continue to be there to help you decipher it. This week, our timing is perfect: the long-time, Pulitzer-winning NY Times correspondent, now columnist, Linda Greenhouse, joins us for a discussion of the Court and her new book: “Justice on the Brink: The Death of Ruth Bader Ginsburg, the Rise of Amy Coney Barrett, and Twelve Months that Transformed the Supreme Court.” In light of Justice Breyer’s retirement issues (and how RBG’s retirement echoes loudly), the current torrent of impactful cases, and our recent commentary and other guests, this couldn’t be more timely. Linda’s book prepares us to ask if the Roberts Court is gone and the Trump Court arrived - and now we can begin to answer the question, as the Court slowly unveils its character. Best of all, you can find out what all this has to do with an iguana.

The Court Astonishes - Special Guest Ed Whelan

Tue, 14 Dec 2021 23:26:44 -0500

Amarica’s Constitution is 50 - 50 episodes, that is. The Supreme Court isn’t done with abortion yet, as it marks our “silver episode” unveiling with a pair of rulings on the Texas abortion law, SB8. The rulings themselves may not be long remembered, but the opinions contained sentences that shocked Professor Amar. In a happy coincidence, the Friday rulings coincided with a Friday taping, and we happened to have a special guest - Ed Whelan, creator of the well-known “Bench Memos” legal blog and Distinguished Senior Fellow of the Ethics and Public Policy Center. We dissect the very revealing statements by Chief Justice Roberts, Justice Sotomayor, and others, on an eventful day.

Roe Roe Roe: Stare and Stenchy

Tue, 07 Dec 2021 23:45:39 -0500

The oral argument is complete in the Mississippi abortion case, Dobbs v. Jackson Women’s Health. In our previous two episodes, Professor Amar prepared our audience with a remarkable menu of constitutional theory, a recap of the relevant cases and the orientation of the justices. We now look at the actual argument and find where it cohered with Akhil’s notions. We critique the arguments, the advocates, and the arbiters, and discuss arguments that might have been made. Was precedent ("Stare Decisis") the theme, and did it have to be? The voices of the justices, inserted in our podcast, put you right there, with Professor Amar as your guide.

The Future of the Past

Tue, 30 Nov 2021 23:48:13 -0500

Fifty years of controversial jurisprudence have followed Roe v. Wade, and now the Supreme Court will hear oral argument in a case that many see as this story’s reckoning: Dobbs v. Jackson Women’s Health Organization. In our last episode Professor Amar identified “precedent” as the legal coordinates where the abortion road may fork. He now lays out the conflicting theories of precedent which the informed citizen needs to command when following this case. i Listeners to this episode will be armed with the tools to decipher today’s oral argument and tomorrow’s decision/opinion; indeed, in the briefs attached to this week’s “Show Notes,” both sides make arguments that will sound familiar to listeners to this podcast. One can only hope that the Justices are as informed as Amarica’s Constitution’s audience.

About Abortion - A Precedent Primer

Tue, 23 Nov 2021 23:31:58 -0500

Abortion, and Roe v. Wade, is in the news again as the Supreme Court prepares to review challenges to the Mississippi law which, if upheld, would amount to an overrule of Roe. Professor Amar tells us that the argument, in addition to discussions of abortion itself, will center on the role of precedent. To prepare us for an examination of the particulars of this case, he conducts a master class on precedent. Akhil has written extensively and authoritatively on this over the years; our audience will thus be among the most informed and comprehending spectators when oral argument takes place in December. We will follow this next week, as we did in the recent gun case, by applying the principles just covered to the actual case.

To Heller and Back

Wed, 17 Nov 2021 00:25:38 -0500

Now that our audience are masters of rights analysis after last week’s overview and framework presentation, we turn to the current SCOTUS gun rights case, New York State Rifle and Pistol Association v. Bruen. Consistent with Professor Amar’s approach, we begin with the text of the 2nd and 14th Amendments, along with a fascinating historical analysis. When that is complete, the questions the Justices asked during oral argument take on a whole new meaning, both in seeing clearly the points they were emphasizing, and perhaps in some cases, those they were missing.

Putting a Head to Our Gun

Wed, 10 Nov 2021 00:35:21 -0500

Gun rights are in the news again as the Supreme Court hears New York State Rifle & Pistol Association v. Bruen. Professor Amar discusses his landmark work on the Bill of Rights, and invites you to join him in an analysis of the issues in this and other “rights” cases. These cases require an appropriate methodology, and we are treated to a master class in the tools we need to perform this analysis. As we jump into the case, we will be armed with the framework we need for 2nd amendment cases, 14th amendment cases, and indeed most of the landmark cases that have come before the court over the past half-century, and will be before us, and the Court, now and in the near future.

The Opening Episode

Tue, 02 Nov 2021 20:53:50 -0500

Our series on books and authoring takes a look back at - what else? - the opening of a book. What comes first can make all the difference, but what makes for a great opening? And there are things before the opening - the forward, the preface, the dedication, the title, the cover. It’s all grist for our mill, with classic openings as well as deep dives into Akhil’s own books’ kickoffs.

72 Term Papers

Tue, 26 Oct 2021 23:54:01 -0500

What began as an exploration of sources of authority - citations, rankings, reviews, sales - now continues with our inside look at book writing and publishing. For those who have considered eventually writing a book themselves - and who among us hasn’t? - we take a deeply honest and nuanced look at all aspects of the process, including many most of us take for granted. Professor Amar’s personal approach to book writing is discussed, and one short example of it tells the story of Story himself - Joseph Story, that is, and his ongoing role in Akhil’s ambitions.

Errors of Commission

Tue, 19 Oct 2021 23:05:26 -0500

Remember “18 reasons for 18 years?” Well, so did the Biden Commission, and as they reject court packing, they flirt with the 18 year plan. A few voices are raising in the media and even some on the commission, so we review their arguments and analyze their possible merits. A big question - can it be implemented by statute, or is a constitutional amendment required? No surprise that Akhil has a clear opinion on this. If this happens, you heard it here first - or rather, you read it first back in 2002 when Akhil and his co-author came up with it.

Speaking of the First Amendment - Joint Episode with FIRE

Tue, 12 Oct 2021 16:38:59 -0500

Amarica’s Constitution shares the stage this week with the fine podcast “So to Speak” from the Foundation for Individual Rights in Education (FIRE). Professor Amar is interviewed by FIRE, and the history of the First Amendment leads to - surprise! - any number of fascinating constitutional law issues. Akhil takes time out to take issue with Robert Bork, by the way. And who kicked the dog?

Adams or the Dog - Special Guest Edward Larson

Tue, 05 Oct 2021 16:24:04 -0500

The academic year is underway, and Professor Amar’s crazy teaching schedule, as usual, includes co-teaching with some of the greatest constitutional scholars in the nation. This semester Akhil is joined by Professor Edward Larson, whose amazingly wide range includes a PhD in History of Science in addition to his Harvard Law degree. So it is not surprising that as Professor Larson joins us for this episode, our discussion of George Washington ventures into GW the scientist. And speaking of scientists, Ed Larson also wrote a book on GW and Benjamin Franklin - was this an odd couple as it might first seem? We also take another shot at the James Madison vs. GW question while we’re at it. Oh, and religion shows up as well.

Basically Random

Wed, 29 Sep 2021 02:42:28 -0500

Our look inside the literary world continues. So many of us are aspiring or perhaps would-be authors, but what is really involved, and can we really join that world? Akhil takes you through the many and sometimes surprising corners of this sphere, which is far more intricate than one might think. His personal route was not quite as smooth as it might seem, and the story of his move from a very successful book to another publisher, told here for the first time, is quite revealing of the milieu and the man.

Empire of History - Special Guest Gordon S. Wood

Tue, 21 Sep 2021 23:01:57 -0500

It’s fitting that our recent discussion of how authors and their books are realized is followed this week by a discussion with the finest example of a historian, Gordon Wood. We explore his new book, “Power and Liberty: Constitutionalism in the American Revolution;” locate it in the amazing arc of Gordon’s peerless career, and then conduct a lively discussion of what at first glance seems a clear disagreement between Akhil and Gordon: who was the “father of the Constitution?” The conclusion may surprise you. Finally, our historical and constitutional titans address an area of ongoing controversy surrounding the American Founding.

Literary Labyrinth

Tue, 14 Sep 2021 22:35:30 -0500

It’s Constitution Week, and Akhil is “booked;” not only with events of the week, but on his book tour. Our series on scholars, schools, and scholarship resumes, then, with a comprehensive look at the entire ecosystem of books. What is the author’s process, and what happens after a book is written? How does a book, and an author, gain authority in a world of ubiquitous social media? And how does this take us to discussions of the Fifth and Sixth Amendments? We all believe we have a book in us, so this inside look speaks to all.

The Ayes and Nays Upon Texas

Tue, 07 Sep 2021 22:46:15 -0500

Texas has brazenly - or boldly, depending on your point of view - thrown down a gauntlet on abortion with their new law purporting to ban abortions once a fetal heartbeat can be detected. The Supreme Court refused to hear a challenge to the law prior to its effective date, so the nation holds its breath wondering where abortion rights, long treasured by many, will head. Meanwhile, the law deputizes the citizenry and takes enforcement out of the hands of state officials. What’s going on? Is this vigilantism? Is this a rogue, unconstitutional adventure? Is Roe v. Wade dead already? Professor Amar is your guide to what is really happening.

A Friendly Judge

Wed, 01 Sep 2021 13:31:30 -0500

Suppose there is a controversial issue of constitutional law. Where does one go for authoritative exposition? We continue what is essentially a discussion of expertise and authority. How do you know whom to trust? Who has the right answers? How might we go about finding out these things? We continue to look at these questions in several arenas: scholars, scholarship, and schools. Interesting sidelights abound, as usual, and a Friendly detour finds an unusual consensus in the “who’s the best” category.

Sabermetrics for Lawyers

Wed, 25 Aug 2021 12:46:18 -0500

What do Willie Mays and Laurence Tribe have in common? Andy and Akhil start with an Amar citation from Clarence Thomas in a case last term and branch off into a discussion of scholars’ rankings, the fourth amendment, legal realism, scholarship and schools, books vs. articles, and a dizzying array of other topics. This potpourri launches a series on the inside of the academic world as well as a look at the recently concluded SCOTUS term.

Confirmation Cacophony

Wed, 18 Aug 2021 05:04:02 -0500

We return to our look at all the sitting Supreme Court justices with the final two - Justices Kavanaugh and Gorsuch. This necessarily involves revisiting the confirmation process, particularly in the case of Justice Kavanaugh, where Professor Amar played a role in print and in the witness chair. How have the first years of his tenure, along with Justice Barrett’s, played out in light of some of the events of those confirmations? The early returns are fascinating.

Neal Katyal's Life in the Law, Part 2 (Special Guest)

Thu, 12 Aug 2021 19:05:25 -0500

Neal Katyal, now at the peak of the Supreme Court bar, reviews many of the big issues the Supreme Court will face in the new term, as well as some just past. Abortion, affirmative action, and cases involving a tension between legitimate governmental action and religious organizations are all discussed from the unique perspective of this remarkable litigator, professor, author, and television commentator.

Neal Katyal's Life in the Law, Part I

Tue, 03 Aug 2021 15:50:35 -0500

After teasing it for months, Neal Katyal, perhaps our nation’s finest Supreme Court advocate, joins Amarica’s Constitution. The dramatic rise of a truly great lawyer is a fascinating story, including the case that launched Neal into Supreme Court practice - Hamdan v. Rumsfeld. Later he would become Acting Solicitor General and then move into John Roberts’ old chair as the head of the Supreme Court appellate office at Hogan Lovells, Georgetown Law Professor, nationally-known media personality, author including sometimes co-author with Professor Amar, and even a TV actor. There’s too much to tell in one episode, so Neal will return next week for analysis of some of today and tomorrow’s most compelling legal issues.

Witness in the Center Square

Wed, 28 Jul 2021 00:25:18 -0500

In these days of Zoom, Professor Amar’s testimony before The Presidential Commission on the Supreme Court of the United States looks a lot like the old TV show, the Hollywood Squares, and Akhil is in the center square. This is fitting, because his proposal for 18-year terms of active en banc service on the Court is front and center in these hearings. Akhil and Andy review the work done in advance of this testimony, recapitulate the major arguments in the proposal, and look at the Q&A that followed in depth, along with the arguments of other panelists.

Tall Tales

Tue, 20 Jul 2021 21:49:56 -0500

We continue to profile, recap, analyze, and learn from the nine Supreme Court Justices. This week our focus turns to those justices appointed by Trump, and the seat that would be Garland’s instead went to Neil Gorsuch. Akhil looks at cases old and new to find the highs and lows in Justice Gorsuch’s jurisprudence, and this justice who studied in two countries and clerked for two SCOTUS members, who calls neither of them his great influence, comes under our microscope.

Architects May Come

Tue, 13 Jul 2021 22:47:37 -0500

We continue our Supreme Court series as the term has comes to a close. Akhil profiles the “middle three” Justices: Alito, Sotomayor, and Kagan. Their backgrounds, their finest, and their not-so-finest moments are described and analyzed. If a Justice seems destined to spend decades in dissent, can she leave a legacy? We look at some who did. Lots of law, lots of cases in this episode for SCOTUS/con-law nerds.

Political Football

Tue, 06 Jul 2021 23:04:41 -0500

After decades on the bench, Justice Breyer’s distinguished career is, for better or worse, fodder for discussion and debate. Akhil has brought a “refined legal realism” to profiling the various justices in terms of their backgrounds, legal and personal; the same approach provides a starting point for looking at this decision. But as we move into the realm of politics and strategy, reasonable people may disagree - just as when sports are discussed. So, Andy and Akhil consider clock management and other coaching questions.

Know the Nine You Will

Tue, 29 Jun 2021 23:10:58 -0500

The Supreme Court’s 2020-21 term is closing, and we are opening a window into the Court. We begin this multiple-episode series by looking closely at each Justice - specifically, their backgrounds and how their jurisprudence reflects influences from their past. Each Justice has their best and worst moments in Akhil’s eyes, and we discuss them. Also, Akhil has an important appearance coming up, so some background to that event is yours for the listening.

Yale's Constitution - Special Episode - Guest Nicholas Christakis

Mon, 28 Jun 2021 14:42:10 -0500

In this “additional” episode, Andy and Akhil switch roles and put the US Constitution aside for an hour, as they take a deep dive into the governance and politics of their beloved alma mater. Yale recently initiated a scandal when their trustees abruptly eliminated most of the democratic elements whereby alumni participated in the governance of the University. Andy was a candidate for election to the Yale Corporation, and he leads us through the weeds “inside Yale.” Meanwhile, Nicholas Christakis, a Sterling Professor at Yale and an official of Yale’s Faculty Senate, joins us; he and Akhil offer a unique faculty-oriented perspective on events. Anyone who cares about Yale will want to learn the facts behind this outrage. And how does John Adams, a Harvard man, sneak his way in?

They Are Small Colleges

Tue, 22 Jun 2021 21:30:03 -0500

Akhil and Andy continue their tour of the 9 established colleges at the Founding, 7 were in the Ivy League, so the Ancient Eight will inevitably stand out in our survey - but they are not alone, as we discuss. Still it is remarkable that such a tiny portion of the population yielded so many familiar names. Latter-day scholars from these institutions still loom large as well, from Daniel Webster and Charles Beard to Gordon Wood and Maggie Blackhawk - giants all. And learn about one of the greats that you may not know well - Douglas Adair.

Princeton Palaver Present

Tue, 15 Jun 2021 23:22:18 -0500

Akhil and Andy move from The College of New Jersey - Princeton in the period of America’s Founding - to the Princeton University of today, and discuss matters of agreement and disagreement between Akhil and some of the Orange and Black’s leading faculty lights. Topics range from the 1619 project to the Electoral College and some of Andrew Jackson’s most controversial and misunderstood statements. Finally, everything you never knew you wanted to know about property is revealed.

Princeton Palaver Past

Tue, 08 Jun 2021 22:42:11 -0500

Akhil and Andy continue their look around the Ivy League. Having dispensed with Harvard, Princeton enters their sights, particularly their great early product, James Madison. Was he truly “the father of the Constitution,” and why does it matter? Two of the most important early Supreme Court cases are implicated - one you probably have heard of, and one you most likely have not. And two big issues for the 21st century find their roots in these cases - and the Court will be heard soon enough on one or both. And why does Bobby Bonds find his way into this episode?

Harvard Hooey

Tue, 01 Jun 2021 23:40:50 -0500

That little-known school in Cambridge, Massachusetts keeps popping up. Akhil and Andy, objective Yale men as always, look at how Harvard was in the room at the American Revolution’s first stirrings, how generations of Harvard men kept a version of that story alive, and how today’s Cantab Crowd stumble over their own stories in ways that profoundly influence our American dialog about our past and our present. Akhil scrutinizes Harvard’s best and finds them brilliant but at times wanting - and issues an invitation to hash it all out.

Torture, Trump, and Tech - A Conversation with Alan Dershowitz

Tue, 25 May 2021 22:10:08 -0500

For more than 50 years, any discussion of criminal defense attorneys, legal academics, and civil libertarians - as well as staunch advocates for Israel - included Professor Alan Dershowitz. Today he joins “Amarica’s Constitution” for a far-ranging conversation. Torture warrants, Trump’s misdeeds, the life of a principled advocate and his family, censorship in social media, campus speech, the Israeli Supreme Court - all fall under his gaze, and our scrutiny. We also discuss Prof. Dershowitz’s new book, “The Case Against The New Censorship.”

Constitutionalists United - Special Guest Floyd Abrams

Tue, 18 May 2021 21:36:29 -0500

Our series on civil liberties, including especially the First Amendment and free speech, continues with perhaps its greatest advocate before the Supreme Court, Floyd Abrams. It’s natural to assume that Floyd would be an absolutist on such bedrocks as the case New York Times v. Sullivan - especially since he has represented The NY Times for years. But no, surprisingly, he expresses, to Akhil and Andy, certain abridgments of this case that he might consider if he were, say, on the bench. This and so much more, as a momentous career is celebrated and revealed, from one’s duty to one’s client to what it’s like to appear before the Supreme Court.

Tinker to Amar to Strossen - Special Guest Nadine Strossen

Wed, 12 May 2021 00:09:54 -0500

In the wake of the publication of The Words That Made Us, Akhil comes full circle, as his first book was The Bill of Rights. To complete that circle, Professor Nadine Strossen, the youngest person and first woman to lead the ACLU as its president (for 17 years!) joins Akhil and Andy for a discussion that ranges from the current Supreme Court case on cheerleaders’ (and all other students’) rights to the famous Tinker case; from Citizens United to The Godfather. And just what is wrong with The Sopranos?

Voracious Horatius

Wed, 05 May 2021 22:20:47 -0500

As Akhil and Andy celebrate the publication this week of The Words That Made Us, Akhil tells a story from the book - the crazy election of 1800 and its just-barely-peaceful transfer of power. And what is John Marshall up to? He’s everywhere: Secretary of State and Chief Justice at once, a pseudonymous scheming columnist, and in the end, the man with the Bible in his hand to swear in the eventual winner: his cousin.

18 Arguments for 18 Years

Wed, 28 Apr 2021 08:13:30 -0500

The Biden Commission is in the news, with a mandate to produce ideas on judicial reform, especially at the Supreme Court level. It just so happens that Akhil has been writing about this for almost 20 years, and has fully formed ideas. How many ways would these changes make the Court better? We’ll count. Of course, the historical and constitutional background will also be explored and explained.

Leaving The Field

Tue, 20 Apr 2021 22:15:06 -0500

In the wake of the imminent release of The Words That Made Us, Akhil takes us to the end of the story - or was it? The deaths of America’s founders were all memorable in ways that reflected the character of each. This can’t be a coincidence, he maintains, and if it wasn’t, then what was it? The founders managed to leave their mark on the stage as they left it, and in so doing, and in some sense, they didn’t leave.

Ending Catch-22

Tue, 13 Apr 2021 22:08:54 -0500

10 years after Professor Amar wrote, with Gary Hart, on how the Senate can put an end to the filibuster, it remains (mostly) in place. Akhil and Andy take you through the long history of this notorious practice, from the pre-Constitutional theories and practices, through the many misdeeds of the post-Civil War and 20th century periods, to today where the filibuster looms large but also is threatened with extinction. Professor John Fabian Witt joins the conversation with unique insights into the origins of the “modern” filibuster, how it was employed to thwart anti-lynching as well as major civil rights legislation. What is now rule 22 (“catch-22”) is not so entrenched, not so consistent with the Senate’s mission, as many have thought. Thanks again to EverScholar (everscholar.org) for sponsoring “Amarica’s Constitution.”

The Purpose of the Truth - Special Guest Bob Woodward

Tue, 06 Apr 2021 21:51:18 -0500

Akhil and Andy welcome “the greatest reporter of all time” - Bob Woodward - to Amarica’s Constitution. Fresh off his 19th book and 14th number one best-seller, “Rage” - having reported on nine presidents - a discussion of the Presidency would seem to be in order. Anecdotes and insights flow, and Akhil even gets in some queries on the Supreme Court. Remember Butterfield and the tapes? Here's a revelation about Woodward's own records.

Advise and Impeach

Wed, 31 Mar 2021 10:57:16 -0500

"Amarica's Constitution" welcomes our guest, Professor Michael Gerhardt, who pulls himself away from his work as Congress' go-to expert on the impeachment to share a postmortem with us from the inside. He should know - he was retained by the presiding officer, Senator Leahy, as counsel for the impeachment. His new book, "Lincoln's Mentors," is out, and we can't ever resist a Lincoln discussion. Andy and Akhil have been teasing about EverScholar - today they let us know what all the fuss is about; see for yourself at everscholar.org.

Nullification Nullity

Tue, 23 Mar 2021 22:53:00 -0500

Andrew Jackson takes the stage in this, the fourth of four sets of readings from Akhil’s forthcoming (May) book, “The Words That Made Us.” Jackson’s complex makeup, combining qualities from Washington and Jefferson, is revealed, and his status as America’s first truly Western president is explained, as is the shadow that his utter failure on slavery casts. Still, his championing of Union is one of the great Constitutional episodes of the early Republic, and Akhil gives a vivid description of this, the Nullification Crisis. Somehow this leads to the insight that The Crown is like The Godfather. Go figure. The podcast is sponsored by EverScholar (everscholar.org), where a few spots remain for an amazing, immersive learning experience in Greece this August.

Jefferson Ben Amar

Tue, 16 Mar 2021 23:14:20 -0500

As “The Words That Made Us” approaches its May release, we continue to explore new perspectives on the early Presidents. Akhil’s disillusionment with Jefferson is explained, and the rise of the third President’s cousin and near-usurper makes for some surprising moments. We return to the visual for examples of particularly blatant painting propaganda, and a future guest makes a cameo.

Sedition and Perdition

Tue, 09 Mar 2021 23:31:03 -0500

We continue “Presidential Month” with the second set of readings - this time on Jahn Adams - from the forthcoming (in May) “The Words That Made Us.” Adams’ unique combination of bombast, verbosity, grandiloquence, ubiquity, and insecurity, makes him an author’s dream. It also left him extraordinarily thin-skinned, and the notorious Sedition Act was the result. Akhil and Andy take a grand tour of Adams’ constitutional misadventures.

The Unanimous Man

Tue, 02 Mar 2021 23:19:27 -0500

Akhil’s new book, “The Words That Made Us,” will be available in May. This widely anticipated tome has already garnered a starred review from Kirkus Reviews. In this episode Akhil provides a preview, with reading and commentary from Chapter 7 - “Washington.” Although all Americans know that Washington was the first president, they may not know quite why the first American electors elected him unanimously - twice. Akhil provides a reading, and Andy and Akhil discuss.

Succession Inquisition

Wed, 24 Feb 2021 00:04:28 -0500

How does Akhil dislike the Presidential Succession Act? Andy tries to count the ways. This Constitutional disaster-in-waiting is definitively dissected. We could have had President Pelosi being sued by would-be President Pompeo, with your 401k turning into a 201F. Show notes on the website include the three incarnations of the Act since the Founding, and some tips on counting from the experts.

Snap - You're in Lisbon

Wed, 17 Feb 2021 18:29:44 -0500

The many dangers of the lame duck that gave rise to our "Bullets Dodged" series raise the question - do we really need a lame duck period at all? Akhil and Andy recall the "secession winters" of the past and how 2020 shared aspects of all of them; and of course, we have suggestions for how to solve it. As for Lisbon, this is not the first episode of ours that references "Casablanca..."

Menus without Eating - Special Guest Prof. Philip Bobbitt

Fri, 12 Feb 2021 13:09:42 -0500

Philip Bobbitt is a top academic expert on Impeachment. He has led the lonely chorus of those who have maintained that Trump’s second impeachment trial is unconstitutional, since it takes place when he is no longer President. Akhil and Professor Bobbitt debate this and other points crucial to the trial - with surprising results. News flash: opinions change, and consensus is nearer. One can only wish the Senate had similarly open minds.

Ex-Pres Ex-perts

Wed, 10 Feb 2021 23:00:18 -0500

The impeachment trial has begun. We depart from our leisurely time-independent pace to go nearly live and address the most important issues. Can you try an ex-president? Is this really about "insurrection?" What are "high crimes and misdemeanors?" How can Presidents Obama, Bush, et all help? Akhil and Andy also discuss their recent op-ed from the NY Daily News earlier this week.

Bullets (Not) Dodged, Part 3: Shocked, Shocked!

Tue, 02 Feb 2021 18:29:50 -0500

The quadrennial choice Americans make was particularly fateful in 2016, and Akhil asserts that itself this was a bullet not dodged. The unique nature of the American Presidency places enormous burdens on the office's holders, but so, too, does it ask much of the American people as they exercise the franchise. What makes a good president? What should Americans consider, and how can they frame the choice? Akhil and Andy find lessons in the early republic, and the early Akhil, for that matter. And of course, a few words about the recent occupant of the office. Should we have known what we were in for?

Bullets Dodged, Part 2: The Faithless and the Feckless

Tue, 26 Jan 2021 23:57:21 -0500

Continuing our discussion of the various disasters that might have befallen America around the election, this time we explore the period after the election and before the Electoral College, and then as Congress prepared to meet and certify the vote. The toxic mixture of the Greeley precedent and Faithless Electors was rendered a veritable Chernobyl by a 2020 Supreme Court decision that Akhil finds, shall we say, imperfect. Life imitates art ("The West Wing," again)? Actually, it's more frightening than that.

Inauguration: Bullets Dodged

Sun, 17 Jan 2021 15:14:21 -0500

Introducing "Amarica's Constitution;" Electoral pitfalls in the Constitution and the election of 2020 - Part I.

It didn't feel smooth, but believe it or not, many things didn't go wrong that might have in the recent election. For example, what happens if a candidate dies on or about Election Day? Akhil and Andy discuss how issues of election timing, the electoral college, the Greeley Precedent, presidential succession, the 12th and 25th Amendments, and partisan politics make for a witches' brew that is denying Professor Amar his beauty sleep.