Amarica's Constitution

The legal world is abuzz with the impending oral arguments in Trump v. Anderson in a couple of weeks.  In the forefront are the powerful arguments and compelling history that are introduced in the amicus brief from the Professors Amar.  We continue to delve into the principal lines of reasoning in the brief, and how they take the starch out for some of the tropes that were found in the media.  Whe...

The “brothers-in-law” Vik and Akhil Amar have filed an amicus brief in Trump v. Anderson et al.  The brief contains a dramatic historic episode that you almost certainly knew nothing about, and which is highly relevant - perhaps decisive - to the case.  Prepare to be amazed by this story of the “First Insurrection,” which preceded and was distinguishable from the Civil War itself, and which makes...

The months of discussion of Section Three on Amarica's Constitution now make their way to Washington, as cert has been granted in Trump v. Anderson.  Amicus briefs will pour in - including the brothers Amar's brief.  We present some of the approach the brief will take, and we look at the nine Justices, taking account of their jurisprudential history and styles, and discuss how an intellectually ho...

The nation awaits the Supreme Court’s seemingly inevitable review of the Section Three case from Colorado, and perhaps Maine as well.  Media around the world is weighing in with editorials and op-Ed’s; a smorgasbord of legal, political, and predictive arguments from professors, editors, elected officials, and others with their own range of expertise.  We continue our attempt to help you make sense...

The Colorado Supreme Court opinion on disqualifying Donald Trump, though long anticipated, landed like a tornado.  Op-eds, pundits, academics, officials - all are weighing in.  It’s a victory for democracy - no, it’s antidemocratic.  Section Three is a dead letter - no, it’s self-executing.  Trump is out - no, this helps him.  America is reaffirmed - no, there will be violence in the streets. Libe...

The administrative state is up for grabs, some say, in the case of SEC v. Jarkesy, which was argued before the Supreme Court recently.  We have another “clip” episode, with Akhil weighing in on attorneys and justices alike.  It’s particularly appropriate in this case, because so much of the case concerns juries and the 7th amendment - which, by the way, Akhil has written extensively on.  That’s pr...

The question of Donald Trump's disqualification under Section 3 of the 14th Amendment is before the courts.  Last week the Colorado Supreme Court heard appeals of the District Court rulings.  As they consider their decision, we have the privilege of hearing from the nation's two leading experts on the subject, the author of The Sweep and Force of Section Three - the universally acknowledged defini...

There is no shortage of tributes to the just passed Justice Sandra Day O’Connor, and rightly so, and this first female Justice richly deserves praise and memory.  We aim to offer a tribute by taking her seriously as a Justice of ideas as well as the frequently mentioned deeply human remarkable woman she was. Fortunately, Akhil’s career has been intertwined with Justice O’Connor’s in a remarkable b...

Donald Trump’s disqualification for the Presidency under Section 3 of the 14th Amendment is on the docket for the Colorado Supreme Court next week.  We have brought the two leading experts on the history of this clause to our podcast. They have written extensively on the 38th-40th Congresses who passed and first acted under the amendment; on John Bingham, the “James Madison” of the Fourteenth; and...

The Supreme Court heard oral arguments in US v. Rahimi, a significant gun case, and we get to work.  We have pulled clips from the argument so you can hear the justices and advocates in their own words, and Akhil comments after each clip.  The case is important in itself, with wide implications regarding permissible gun regulation, and it also touches on a number of key methodological points that...

The Amars’ amicus brief in Moore vs. United States is the talk of the legal ecosphere.  Akhil’s co-author, Professor Vik Amar, joins us for analysis of the precedents that followed Hylton - faithful and otherwise.  This tour de force of legal analysis is perfectly suited for your CLE credit.  We also look at recent comments from the Supreme Court on Moore’s issues, and survey the reactions to the...

In our 150th episode, we present the amicus brief in Moore v. United States, authored by Professor Amar with his brother, Professor Vikram Amar.  Reminder: CLE credit is available after listening by going to podcast.njsba.com .  The brief begins with the provocative statement that most other briefs in the case have missed the point?  What is the point that they missed?  We explain how their focus...

The follies in the House have ended, for now.  Many Americans looked upon the travesty with despair, wondering if our government might yet be up to the task of leading and reaching beyond party to find country and duty.  We take a good look and search for places where reaching across the aisle might still take place - and we try to do our part and go beyond demonizing those not in our own party. ...

Still no speaker.  Is it really the case that the House can’t do anything?  How might it work?  What about Section 3 of the 14th Amendment - does it play any role in the Speaker selection process?  Meanwhile, we turn towards the other Jordan and see the dangers of insecure borders that are inherently hard to defend.  Professor Amar explains how this simple fact led him to insights that resulted in...

The House is at it again, and there is no Speaker in the chair as of this recording.  So many implications - for Presidential succession, for democratic governance, for legislative stalemate.  Meanwhile violence escalates in the Middle East.  How are these connected?  We explore all these, and Akhil has some fascinating originalist analyses - of history you surely didn’t know; of structural reason...

After the Court decided important voting rights and affirmative action cases last term, these issues are back either before the Court or apparently headed for it. Why? We look at Allen v. Milligan, and affirmative action in the service academies, and find that the bounce-back of what seem to be entirely unrelated cases in fact demonstrates important constitutional and indeed originalist principles...

The career of America’s greatest investigative reporter has spanned more than 50 years, and Bob Woodward has told the stories of eleven presidents, the Supreme Court, the Intelligence Community, and indeed the American political system with a penetrating, persistent drive towards the truth. (LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after l...

It’s almost October, and the Supreme Court readies to hear a new set of cases.  The Roberts Court seems defined above all by the Dobbs decision at this point.  The opinion, authored by Justice Alito, has been exhaustively dissected, but looking forward, we see various states taking further and more extreme actions.  What role will the so-called swing justices, some of whom wrote concurrences in th...

It’s an assortment of topics as listeners response to some recent developments and nagging questions.  We revisit the 303 case, specifically the dissent, as Justice Jackson lays out an interesting hypothetical that doesn’t produce, perhaps, the intended response - at least from Professor Amar.  Meanwhile, Justice Alito is back in the news with his judicial Declaration of Independence - Akhil may n...

Two recent major podcast themes - section 3 of the fourteenth amendment, and judicial ethics - echoed through the news this past week.  Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General,...

***CLE Available*** We continue our exclusive discussion with the Professors Baude and Paulsen, authors of the bombshell article declaring Trump ineligible for the Presidency.  This time we explore some concerns that have been voiced in the media and elsewhere; we look at how this provision might make itself effective in practice.  We trace the possible routes such an effort might take; where woul...

***CLE available*** In a special episode, the two distinguished authors of a recent major article, which dives deep into Section 3 of the Fourteenth Amendment and finds that Donald Trump is disqualified from the Presidency, join us for a thoughtful and rigorous examination of the tough questions about their conclusions.  These are leading conservative scholars who have gone where their methodologi...

Everyone needs a translator, and for decades there have been few better than Washington Post columnist, reporter, and editor Ruth Marcus.  She has made understandable the intricacies of many a Supreme Court matter, not to mention the vicissitudes of other Washington institutions.  Now, with Federal and State cases against former president Trump pending, the complexities are impressive, but we take...

Ex-President Trump faces a number of trials, and he doesn’t like where some of them are.  Too many Democrats, or he doesn’t like the judge.  Does he have recourse?  No surprise - Professor Amar has written on this subject.  There is a fascinating history behind it, an originalism analysis, and, most importantly - an answer.  Changes of venue, bench trials, peremptory challenges, unanimous verdicts...

He's baaack.  Former President Trump has been arraigned once again, this time on serious federal charges related to the very heart of democracy - the election itself.  Special Counsel Jack Smith continues to discharge his appointed function by bringing charges he deems warranted.  Beyond Smith, however, do the American people have other means of redress?  And if Trump is guilty, will these prosecu...