Amarica's Constitution

Happy Constitution Day! And Happy Born Equal Publishing Day! The book tour is underway, and we treat you to an event held live at Princeton University. Professor Amar speaks about the bridge from the last book to this one, and in doing so, the importance of the uniquely grand sweep of his project becomes apparent - as themes from The Words That Made Us merge crucially with the new revelations of Born Equal to shed light on some of the most important constitutional questions in American history. The audience gets involved, too, with questions that might well be your questions. And this is just the beginning, as some amazing events have already taken place that will fill our podcasts with debate and insight in the weeks and months to come. CLE credit is available for lawyers and judges from podcast.njsba.com.

With the imminent publication of Born Equal, we explore Lincoln’s grand vision of equality as it played out during and after his life. The new book goes further still, offering an expansive though still relentlessly originalist view of this constitutional vision. And now Professor Amar sees this vision through with even greater implications for the 160 years since his death and into the future. The new book introduces, and this podcast and those to follow explore, a new unifying thread that gives even greater coherence to the Constitution, as amended and as understood through this momentous scholarly effort. CLE credit is available for lawyers and judges from podcast.njsba.com.

Trump is keeping the courts active; this week saw a ruling against many of the widespread tarrifs he has sought to impose, and the Fifth Circuit upheld his dismissal of an NLRB member. Meanwhile, a Fed governor was dismissed, supposedly for cause. And the social media announcements of supposedly impending executive orders imposing voting requirements such as voter ID kept coming. And there’s more. We try to keep it all straight for you, identify the constitutional issues, and look at what the Courts might do. Meanwhile, your fantastic response to the impending Born Equal release is noted, appreciated, and we respond to it. CLE credit is available for lawyers and judges from podcast.njsba.com.

Gerrymandering, borders, the use of the military on US soil, and even the status of the District of Columbia. All these relate to geography, and the "more perfect union" our founders sought. The Constitution therefore speaks to all these issues, and originalism must be considered. We look at what the Constitution has to say, why it says these things, and what the underlying principles tell us. This has obvious implications for today's questions, but without clarity on the historical background, confusion may reign, which aids those who might be in the wrong. It's timely in another way, because the forthcoming Born Equal addresses many of these geographic questions - because Americans in the 19th Century, including Lincoln most prominently, thought about them prominently. Professor Amar brings it together for you. CLE credit is available for lawyers and judges from podcast.njsba.com.

President Trump has taken to social media, as usual. This time he asserts an authority to control elections through executive order. He claims that he is empowered to do this as the sole representative - nay, the sole decider - of the nation’s interest. We look to the constitution for a reply. He also echoes some election complaints, and election claims, from controversies past, and we have an answer there, as well. Meanwhile, the publication date of Born Equal, Professor Amar’s new book, draws near, and we have an enticing offer for our listeners. CLE credit is available for lawyers and judges at podcast.njsba.com.

With all our recent discussion on Skrmetti, and questions of scrutiny as applied to gender dysphoric individuals, the question of where women’s rights stand in this morass deserves new attention. Professor Jill Hasday has written an important book, We the Men, which is deeply relevant to these discussions. To what extent does inequality persist in the law? When Courts seek to answer this question, they often cite the great progress that has been made. Professor Hasday hypothesizes that this very celebration of progress tends to obscure the remaining issues, and may in a sense pre-empt the scrutiny required. The echoes of Skrmetti are profound, and Professor Hasday joins us for a lively discussion of these issues and many others - including that recent bugaboo, the Geduldig case, which rears its ugly head once again. CLE credit is available for lawyers and judges from podcast.njsba.com.

We continue our discussion of the deep issues raised in the case of US v. Skrmetti. Last time we observed the Court wrestling with questions of whether the Tennessee law banning gender dysphoria treatments in minors was a form of sex discrimination. Later in the argument the Court addressed the question of whether transgender individuals, or some related group, constituted a so-called “suspect classification” and therefore laws purporting to affect that group would be subject to close examination (“Scrutiny”) by the Court. In this episode we listen, and react to, those arguments as the Court itself did. Professor Vik Amar returns to join Akhil in this task, and rightly so, since the “brothers in law” have written several recent posts on the deep questions raised by this and other recent cases. This has resulted in a new unifying theory which they begin to articulate in this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Supreme Court’s term is long since complete, but we turn back the clock and take a deep dive into one of the major cases of the term, United States v. Skrmetti. This case addressed questions of gender dysphoria treatment and transgender rights, but fundamentally, it was a case about the law of equality, say the brothers Amar. Yes, Vik Amar is back as a guest, and our two experts go back and listen to the oral argument and react to the Justices and the advocates as they present. It turns out that this is an excellent case for learning about how the law attempts to implement the equality promises of the Constitution, and you will hear the Justices engage in this action, or inaction. Our experts add more than their take on the arguments - they have theories that go beyond anything said in Court that day or written in the opinions that followed. This is part one of a multi-part summer treat from Amarica’s Constitution. CLE credit is available for lawyers and judges from podcast.njsba.com.

We pay tribute this week to a titan in the field whom you may not have heard of. Professor Richard Fallon, the Joseph Story Professor of Law at Harvard, passed away last week. As you will hear from his collaborator and friend, our guest Professor Michael Dorf, Dick Fallon had a deep impact in the law and the academy, and did so with grace, class, and integrity. The parallels between his career and Professor Amar’s are striking, but so is the divergence in their constitutional approaches. And this makes for a fascinating and instructive episode as we probe, rather deeply, the nature of these divergences and how they appear in various places in the law. Meanwhile this also brings us back to a fundamental matter for this podcast, namely, the nature of and validity of originalism as opposed to or in concert with other methods of interpreting and understanding the constitution and applying it in today’s, and tomorrow’s, America. That America must now, sadly, go on without Dick Fallon, but it will do so informed by his career and his greatness. We are fortunate to have Michael Dorf to show us why this is so. CLE credit is available for lawyers and judges from podcast.njsba.com.

Representative Jamie Raskin (D-MD 8) was the House manager of the second Trump impeachment in the Senate; is an outstanding constitutional scholar; a long-time law professor; a renowned author; a driving force behind the January 6th committee; and the ranking member of the House Judiciary Committee. For the great privilege of interviewing him, we need all the tools a great interviewer would have. It is therefore appropriate that we also interview Sam Tanenhaus, the biographer, in a new and magisterial work, of William F. Buckley, perhaps the best known and most fearlessly non-partisan in his selection of interview subjects. Sam Tanenhaus has written the definitive work on Buckley, whose Firing Line project was in some ways an inspiration for our own podcast. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Birthright Citizenship case reached the Supreme Court - sort of. The Court ruled on the executive branch’s request for a stay in response to nationwide injunctions issued by three different circuit courts, where the executive order purporting to alter more than a century’s practice regarding the Constitution’s guarantee of birthright citizenship was blocked by these courts. In doing so the Court declined - that is, the majority declined - to address the merits. Still, the nationwide injunction issue was addressed - at least for now.. Akhil takes the Court to task for avoiding the merits, and he offers numerous ways by which this could have been - should have been - done. He also presents a new approach that litigants in these cases might consider as they deal with various tactics the government may employ in the service of an executive order they may not expect to be upheld. Along the way Akhil offers some suggestions for consequences that might be faced by the executive officials, maybe not in our government as currently functioning, but at least in theory. There’s a lot here even if what is most notable for many of us is what the Court has left hanging. CLE credit is available for lawyers and judges from podcast.njsba.com.

The end of the term arrives, and the Court is busy. We begin our dive into the cases with Mahmoud v. Taylor, a case involving inclusive books in a school, parental guidance of religious education, opt-outs, advance notification, and issues of gender and sexual education. Professor Amar goes beyond the case with an overall theory of religious accommodation; indeed, he goes beyond this into questions of parental rights and how it may interact with first amendment law. We also have some announcements of future events. And as always, CLE credit is available for lawyers and judges from podcast.njsba.com.

The US enters a violent part of the world once again, as Iran’s nuclear facilities are bombed. The President orders this without consulting Congress; indeed without asking for, much less receiving a declaration of war. Does the Constitution require this? What has past practice been? What was true at the founding? Has it changed over the centuries? Many twists and turns to the reasoning emerge as we explore this largely indefinite area of Constitutional Law. Meanwhile, Akhil gives a speech on the Revolution and the Constitution which sounds surprisingly relevant at this time. CLE credit is available for lawyers and judges from

Former Justice Breyer returns to Amarica’s Constitution with reflections on his long-time colleague and, yes, his friend, in a rare opportunity to hear about relationships on the Court. Meanwhile, former Souter clerk and current Professor at Penn Carey Law School, Kermit Roosevelt, looks back on the clerkship as well as at the threads that have emerged in the law and in his career from Justice Souter’s insights and methodology. And Nadine Strossen, long-time president of the ACLU as well as dear friend to Justice Souter explores many of the first amendment and other cases that Justice Souter had profound things to say, often in dissent. This is a powerhouse episode, but a tender one. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Supreme Court left lower courts somewhat in the lurch in its recent Bruen decision; last year, in Rahimi, it attempted to clarify matters. Now an assault weapons case reaches the Court, Snope v. Brown, but the Court declines to hear it. Nevertheless, Justice Kavanaugh, though agreeing with the denial of cert, writes a commentary which calls for another, unspecified case to be heard in the near future, and he gives an indication of how he might approach it. We see this as in line with earlier writing he did in Bruen, but there are many unanswered questions in what seems like an intention to utilize a straightforward reasoning. We raise many of these questions, and in doing so, offer our readers a look back at the path gun cases have taken to get to this point, and a look ahead in the hope that some of these heretofore unresolved issues are given their due; that the Justices "count to ten," before the Court takes what might be too headstrong a path forward. Lawyers and judges can obtain CLE credit by visiting podcast.njsba.com after listening.

Trump says he will no longer take advice from the Federalist Society, and Leonard Leo in particular, for judicial nominations. The criteria he will use instead appear to be cause for great concern, and we discuss this. Meanwhile, the Senate is poised to bypass the filibuster for more than judicial nominations, which calls for an analysis that we provide. And the publication this week of Charles Sumner: Conscience of a Nation brings its author, Zaakir Tameez, onto our podcast to speak to Sumner’s enduring relevance. CLE credit is available for lawyers and judges from podcast.njsba.com.

This past week, the Supreme Court issued stays of injunctions which lower courts had issued, those injunctions blocking the firings of officials on statutorily independent agencies. In doing so, the Court may have pointed to an imminent overruling of Humphrey’s Executor, possibly removing existing limitations on the unitary executive theory. At the same time, the Court moved to protect the Federal Reserve, or at least markets’ perception of the independence of that crucial Board. Several justices reacted strongly, led by Justice Kagan, who found fault not only in the ruling regarding the injunction, but in the behavior of the President in bringing this case on in the first place. We take a deeper look at these controversies. Meanwhile, the Court deadlocked in a religious freedom case, and surprisingly, we see a connection between these two events. And some other tidbits, as well. CLE credit is available for lawyers and judges from podcast.njsba.com.

The Trump executive order on birthright citizenship has been banging around the lower federal courts for months now, with court after court opining on its unconstitutionality and issuing injunctions against it that span the nation. The Supreme Court took cert on the question of whether such national injunctions are appropriate, and if not, how the relief that appears indicated can be offered. Along the way questions of the merits poked their way through, with interesting results. In this episode you will hear from the justices and the attorneys, and you will hear Professor Amar doing his Howard Cosell halftime highlights imitation, opining on their arguments, responses, and questions, and offering a holistic approach to the case as well as some new theories on how to think about citizenship in this context. A “clip episode” as only Amarica’s Constitution does it. CLE credit is available for lawyers and judges from podcast.njsba.com.

With the passing of Justice David Souter, the legal establishment has lost one of its most honored members. In this and our next episode, we pay tribute to the man and his work with the help of an amazing roster of his former clerks, friends, and colleagues. We begin with Judge Kevin Newsome from the US Court of Appeals for the Eleventh Circuit, and the Dean of the Yale Law School, Heather Gerken, who share their experience working closely with the Justice on the Supreme Court, as well as his role in their lives that did and does inspire them. Meanwhile, Akhil, who considered the Justice a good friend and role model, offers an in-depth look at various aspects of the Justice, including why a Justice who disagreed with Akhil on method and, in many cases, substance, nevertheless is regarded by him as one of the great Justices in American history. In our next episode we will have more guests whom we will reveal in the discussion during this episode. CLE credit is available for lawyers and judges from podcast.njsba.com.

Law firms are threatened with draconian penalties, with scarcely disguised vengeful and politically destructive motive. Universities are dragged on the carpet, with demands that they forfeit their academic freedom, choice in hiring, and internal mission priorities. What’s going on here? What is likely to happen in Court? Are the firms and universities defensible on constitutional grounds as well as because of procedural and statutory reasons? We bring on Vik Amar, former Dean at the Law School at University of Illinois, Urbana, and author of recent articles on both these crises. And while we are at it, we take a look at the forthcoming Supreme Court oral arguments in the birthright citizenship case, which superficially is about nationwide injunctions. Is that really what it’s about, and in any case, is there more than that there? Three of our current crises in one sweeping conversation. CLE credit is available for lawyers and judges from podcast.njsba.com.