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.
Jun 29, 2022•1 hr 10 min•Season 2Ep. 78
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...
Jun 22, 2022•1 hr 12 min•Season 2Ep. 77
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 somethi...
Jun 15, 2022•1 hr 6 min•Season 2Ep. 76
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, hi...
Jun 08, 2022•1 hr 31 min•Season 2Ep. 75
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 episo...
Jun 01, 2022•1 hr 27 min•Season 2Ep. 74
***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...
May 25, 2022•1 hr 39 min•Season 2Ep. 73
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 unenume...
May 18, 2022•1 hr 25 min•Season 2Ep. 72
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.
May 11, 2022•1 hr 26 min•Season 2Ep. 71
***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...
May 04, 2022•1 hr 29 min•Season 2Ep. 70
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.
Apr 27, 2022•1 hr 32 min•Season 2Ep. 69
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 (understate...
Apr 20, 2022•1 hr 33 min•Season 2Ep. 68
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.
Apr 13, 2022•1 hr 56 min•Season 2Ep. 67
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.
Apr 06, 2022•1 hr 9 min•Season 2Ep. 66
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 surpr...
Apr 02, 2022•55 min•Season 2Ep. 65
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...
Mar 23, 2022•1 hr 31 min•Season 2Ep. 64
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, ...
Mar 16, 2022•1 hr 27 min•Season 2Ep. 63
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 positi...
Mar 09, 2022•1 hr 32 min•Season 2Ep. 62
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 ...
Mar 02, 2022•1 hr 44 min•Season 2Ep. 61
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 someti...
Feb 23, 2022•1 hr 15 min•Season 2Ep. 60
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...
Feb 16, 2022•1 hr 23 min•Season 2Ep. 59
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 Constitut...
Feb 09, 2022•1 hr 17 min•Season 2Ep. 58
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...
Feb 02, 2022•1 hr 23 min•Season 2Ep. 57
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 McCon...
Jan 26, 2022•1 hr 42 min•Season 2Ep. 56
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 ...
Jan 19, 2022•1 hr 25 min•Season 2Ep. 55
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 ...
Jan 12, 2022•1 hr 41 min•Season 2Ep. 54
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 the...
Jan 06, 2022•1 hr 32 min•Season 2Ep. 53
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!
Dec 29, 2021•1 hr 40 min•Season 1Ep. 52
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 issue...
Dec 22, 2021•1 hr 15 min•Season 1Ep. 51
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 D...
Dec 15, 2021•1 hr 29 min•Season 1Ep. 50
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 Decisi...
Dec 08, 2021•1 hr 46 min•Season 1Ep. 49
