Amarica's Constitution

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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 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.

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.

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.

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.

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.

***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.

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.

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.

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.

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.

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.

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!

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.

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.

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?

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.

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.

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 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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

***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.

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.

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.

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.

***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.

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.

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.

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.