Amarica's Constitution

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.

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.

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.

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?

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.

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.

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?

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.

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.”

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.

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?

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.

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.

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.

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.”

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.

"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.

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.

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.

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.

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.

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.

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..."

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.

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.

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?

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.

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.