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 approp...
Nov 30, 2022•1 hr 44 min•Season 2Ep. 101
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...
Nov 23, 2022•1 hr 21 min•Season 2Ep. 100
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.
Nov 16, 2022•1 hr 42 min•Season 2Ep. 99
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, ...
Nov 09, 2022•1 hr 33 min•Season 2Ep. 98
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 ea...
Nov 02, 2022•1 hr 30 min•Season 2Ep. 97
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....
Oct 26, 2022•1 hr 36 min•Season 2Ep. 96
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 ,...
Oct 19, 2022•1 hr 31 min•Season 2Ep. 95
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 ...
Oct 12, 2022•1 hr 34 min•Season 2Ep. 94
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 foug...
Oct 05, 2022•1 hr 22 min•Season 2Ep. 93
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....
Sep 28, 2022•1 hr 21 min•Season 2Ep. 92
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.
Sep 21, 2022•1 hr 36 min•Season 2Ep. 91
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.
Sep 14, 2022•1 hr 26 min•Season 2Ep. 90
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...
Sep 07, 2022•1 hr 26 min•Season 2Ep. 89
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...
Aug 31, 2022•1 hr 36 min•Season 2Ep. 88
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.
Aug 24, 2022•1 hr 35 min•Season 2Ep. 87
***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 suppres...
Aug 17, 2022•1 hr 51 min•Season 2Ep. 86
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 i...
Aug 10, 2022•1 hr 45 min•Season 2Ep. 85
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.
Aug 03, 2022•1 hr 19 min•Season 2Ep. 84
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 m...
Jul 27, 2022•1 hr 8 min•Season 2Ep. 83
***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 ste...
Jul 20, 2022•1 hr 51 min•Season 2Ep. 82
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 co...
Jul 13, 2022•1 hr 3 min•Season 2Ep. 81
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 ...
Jul 07, 2022•1 hr 48 min•Season 2Ep. 80
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 ...
Jul 04, 2022•1 hr 41 min•Season 2Ep. 79
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, h...
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 thi...
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
