Amarica's Constitution

Texas has brazenly - or boldly, depending on your point of view - thrown down a gauntlet on abortion with their new law purporting to ban abortions once a fetal heartbeat can be detected.  The Supreme Court refused to hear a challenge to the law prior to its effective date, so the nation holds its breath wondering where abortion rights, long treasured by many, will head.  Meanwhile, the law deputi...

Suppose there is a controversial issue of constitutional law.  Where does one go for authoritative exposition? We continue what is essentially a discussion of expertise and authority.  How do you know whom to trust?  Who has the right answers?  How might we go about finding out these things?  We continue to look at these questions in several arenas:  scholars, scholarship, and schools.  Interestin...

What do Willie Mays and Laurence Tribe have in common?  Andy and Akhil start with an Amar citation from Clarence Thomas in a case last term and branch off into a discussion of scholars’ rankings, the fourth amendment, legal realism, scholarship and schools, books vs. articles, and a dizzying array of other topics.  This potpourri launches a series on the inside of the academic world as well as a l...

We return to our look at all the sitting Supreme Court justices with the final two - Justices Kavanaugh and Gorsuch.  This necessarily involves revisiting the confirmation process, particularly in the case of Justice Kavanaugh, where Professor Amar played a role in print and in the witness chair.  How have the first years of his tenure, along with Justice Barrett’s, played out in light of some of...

Neal Katyal, now at the peak of the Supreme Court bar, reviews many of the big issues the Supreme Court will face in the new term, as well as some just past.  Abortion, affirmative action, and cases involving a tension between legitimate governmental action and religious organizations are all discussed from the unique perspective of this remarkable litigator, professor, author, and television comm...

After teasing it for months, Neal Katyal, perhaps our nation’s finest Supreme Court advocate, joins Amarica’s Constitution.  The dramatic rise of a truly great lawyer is a fascinating story, including the case that launched Neal into Supreme Court practice - Hamdan v. Rumsfeld.  Later he would become Acting Solicitor General and then move into John Roberts’ old chair as the head of the Supreme Cou...

In these days of Zoom, Professor Amar’s testimony before The Presidential Commission on the Supreme Court of the United States looks a lot like the old TV show, the Hollywood Squares, and Akhil is in the center square.  This is fitting, because his proposal for 18-year terms of active en banc service on the Court is front and center in these hearings.  Akhil and Andy review the work done in advanc...

We continue to profile, recap, analyze, and learn from the nine Supreme Court Justices.  This week our focus turns to those justices appointed by Trump, and the seat that would be Garland’s instead went to Neil Gorsuch.  Akhil looks at cases old and new to find the highs and lows in Justice Gorsuch’s jurisprudence, and this justice who studied in two countries and clerked for two SCOTUS members, w...

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 SCOT...

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 peo...

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, s...

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 t...

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 a...

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....

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 iss...

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...

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 Is...

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...

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...

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 eventua...

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...

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 threate...

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...

"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....