Amarica's Constitution

The Court treated us to an assortment of nude pictures this week.  The occasion was a copyright case featuring the works of Andy Warhol and the photography of Lynn Goldsmith, and the persona of the late artist Prince.  To enlighten us on the intricacies and melodies of copyright law and history, we bring the premier scholar in the field to our podcast - Professor James Boyle of Duke.  The result i...

Justice Thomas remains in the news, as items old and new - from his ward’s private school tuition to his wife’s employment - appear on almost a daily basis.  Friends of the Justice are quoted implying an effort to hide some of these transactions from public view.  An infamous Supreme Court case, Shelby County, creeps back in.  To help untie this web of questions, we are privileged to have Professo...

King Charles III has sat in St. Edwards' Chair, been anointed with oil, and enjoyed all manner of pomp.  Akhil finds important echoes of the elevation of another III - George - back at the time of the American founding.  In a busy week, we also note the release of Justice John Paul Stevens' private papers, with implications for important cases including - surprise! - Moore v. Harper.  Finally, the...

The North Carolina courts are having fun with Moore v. Harper, reversing their prior rulings as their new (Republican) judges took the bench.  We’ve previously considered what the Supreme Court might do with the NC Court reconsidering things - what about now that this decision has come down?  Would this be “judicial restraint,” and what exactly is that frequently heard meme all about, anyway?  We...

The Supreme Court issued a stay in the Mifepristone case, so everyone goes back to their corner - for now, anyway.  They’ll be back.  And when they are, the issue of standing may well be front and center.  We grab this opportunity to give you a primer on standing, starting with the Constitution, tracking the Court’s recent strange path on this issue - and then we hear the Amar approach.   Our list...

The Judiciary continues to occupy the headlines, from the judge in Trump’s trial to judges and justices at the district and circuit level who somehow impact the lives of the whole nation.  And Justice Thomas keeps knocking at the ethics door.  We take it a step at a time, trying to be thorough.  Everyone, it seems, wants to be more than they seem.  So this time we look in some depth at judges bein...

Judges are in the news - all over it, in fact.  Donald Trump, arrested and charged, attacks the judge in his case, and the judge is under a microscope.  Deserved?  Meanwhile, a judge is elected in Wisconsin. Many say this is the result of actions other judges took in Washington last year, and judges in Wisconsin react - and find themselves under scrutiny, too.  Most prominently of all, a Supreme C...

The people of the State of New York have voted in Grand Jury to charge former President Trump with felony counts.  He stands arrested and arraigned.  If you were the District Attorney of New York City, and you had to make the decision whether to pursue this prosecution to this point, what factors should you have considered?  What obligations do you have to the citizens of New York in this matter? ...

The Grand Jury continues its work in New York, as a possible indictment of an ex-president and declared candidate for president awaits his fate.  Meanwhile, investigations and more grand jury proceedings continue in Georgia and Washington on other weighty matters. And the political establishment is worried, so the House Republicans have upped in with a subpoena of the New York City District Attorn...

Rumors swirl around the possibility of an indictment of former President Trump, from several sources - New York, Georgia, Washington.  We wait with you, and rather than speculate, we will pounce when and if something happens.  In the meanwhile, we give you some bonus material in the form of a great listener question, and some information about our favorite pastime.

The Mayor of New York City, Eric Adams, delivered a controversial speech at an interfaith breakfast, raising issues of church/state separation, gun control, and the role of religion in governance.  Akhil uses the opportunity for some comparative constitutional analysis, and we look at the worldwide continuum of separationist approaches.  The mayor is quite provocative on school prayer and quite co...

Former Vice President Mike Pence has received subpoenas from Special Counsel Jack Smith.  Pence claims that he has grounds to challenge this subpoena; he locates this in the so-called “speech and debate” clause, and some claim that executive privilege is relevant as well.  We examine these clauses and doctrines deeply and offer our own conclusions on this issue.  Speaking of doctrines, the Supreme...

This week we take your questions; our listeners are engaged and clever, so Professor Amar is challenged again and again.  How far do his 4th and 5th amendment views extend - do they reach torture?  A fellow law professor asks a deep question about Reconstruction and Women’s suffrage which has deep implications.  And we take a trip back in time to Akhil’s most treasured constitutional moments.  Mea...

People love to talk about the Constitution - that’s why we have a podcast. Sometimes, however, the conventional wisdom is quite unwise, leading to deeply unfortunate national narratives.  Today we address questions such as whether the Constitution was foisted upon an unwitting nation, with the proceedings kept secret for decades.  This is perhaps an old question, but in the news recently, we read...

We continue our discussion with Professor Roosevelt of his new book, The Nation That Never Was. We revisit our debate on the Declaration of Independence and specifically, the meaning of “all men are created equal.” This has profound implications, it turns out, for evaluating the 1788 transition from Articles of Confederation to U.S. Constitution, the 1861 secession, and the great Reconstruction mo...

***CLE Available*** The newly Republican House is threatening to refuse to raise the debt ceiling, raising the spectre of a US default.  Given the 14th amendment, section 4’s prohibition on “questioning” the debt of the United States, all sorts of constitutional questions and strategies have been raised.  We are fortunate to welcome Professor Jack Balkin, who knows more about this provision and th...

A new book, The Nation That Never Was, by Professor Kermit Roosevelt III of the University of Pennsylvania Law School, engages in extensive historical, legal, political, and philosophical analysis of the American story.  This is nothing less than a search for America's most useful and unifying narrative, even as we are living with the controversy and divisions that the “1619” and “1776” projects h...

The aftermath of murders in Idaho saw another terrible crime in Massachusetts, and all these matters raise questions of criminal procedure and the constitution.  We continue our 4th amendment reflection but add the 6th amendment, which has seen little attention on our podcast in the past.  What can a lawyer fairly do in your defense?  Add to this a discussion of the various anniversaries that this...

A tragedy in Idaho riveted the nation, as a dragnet, a manhunt, a search of garbage, a DNA test, a bail hearing, an extradition, and much more surrounded the eventual arrest and the onset of legal process in the case.  Fortunately, Professor Amar has written on all these subjects, and we travel down these various roads, explaining and navigating their constitutional complexities.

We’re back early this week, as promised in our last episode, to help you take in the spectacle underway on the floor of the House of Representatives.  We give you the historical background, the constitutional framework, and we look at some of the tactical and political machinations playing out in as close to real time as podcasts allow.  We also peek at the still-simmering Santos situation, which...

Two year anniversaries in Washington mean a new Congress, but this year January also brings the echoes and the legacy of January 6.  These intertwine most intimately, as the end of the old Congress necessitated the windup of the January 6 Commission, a report, some referrals, and all sorts of constitutional questions.  Meanwhile, it also brings a new Speaker election and why should anything be sim...

The third season of Amarica’s Constitution begins with a special guest, as the star of the podcast “Strict Scrutiny,” Professor Kate Shaw, spends an hour with us.  Like Andy and Akhil, she attended the oral arguments in Moore v. Harper - as she had attended many arguments when she clerked for Justice John Paul Stevens.  Her insights on clerking for the Court are particularly timely, since Justice...

The oral argument in Moore v. Harper lasted approximately three hours.  In our last podcast, we began an analysis by tracing some of the advocates’ arguments and justices’ responses.  This time, we go to the key questions that lay at the basis of all the back and forth.  We answer them, but more than that, we look at their underpinnings and construct a framework in which, we believe, all elements...

After a year of lead-up, Moore vs. Harper has landed at the Supreme Court for oral argument.  Akhil and Andy travel to Washington and attend the three hours of argument in the Chamber.  We play clips and analyze them - the words, the logic, the briefs, the lawyers, the justices, the clerks, the legal world, as America holds its collective breath while democracy itself hangs in the balance.  This i...

Amarica’s Constitution is invited to Yale Law School by the YLS chapter of the Federalist Society for a live podcast, and Yale cooperates by choosing this day to withdraw from the US News rankings of Law Schools.  Naturally, we take that on, and it is the law students themselves that serve as our guests for a lively discussion.  Beyond this issue, however, we take a look inside this iconic Law Sch...