Amarica's Constitution

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.

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.

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.

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.

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.

***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.

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.

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.

***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.

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.

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!

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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!

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.

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.

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.

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.

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.

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.

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.

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.

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.

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.

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?

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.

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.

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.

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.

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.

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.

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.

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, 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.

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.

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.

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.