Amarica's Constitution

***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 probab...

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...

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 aff...

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...

***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 Establis...

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.  An...

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, particula...

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...

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 wil...

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...

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...

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...

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 p...

***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?  Cou...

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,...

As the Dobbs/Supreme Court leak, and its would-be draft opinion, percolate through the public and the media, certain alarms are sounded again and again.  Are these worries realistic?  What does the opinion say; what are the constitutional arguments and questions; where are the justices on these questions?  We look at some of the more prominent pundits saying the more meme-like (and frightening) th...

***CLE Available*** The bombshell news this week was the leak of a purported majority opinion of the Court in the Dobbs case - the Mississippi abortion 15 week law.  Needless to say, the media were breathless in short order, and apocalyptic articles began to appear everywhere.  For our part, we read the draft opinion and have a dissection and analysis of it start to finish for you.  We also discus...

Professor Amar, it is frequently said (by him, among others), has been cited by the Supreme Court more than anyone else in his generation.  This week, he is once again cited.  We discuss the case, the citation, the underlying theory, and citation in general.  Along the way we find ourselves in company with the Great Dissenter, with his namesake John Marshall, and many more.  This small citation in...

Justice Breyer’s unusually worded “resignation letter” raises a host of constitutional questions that perhaps he did not intend.  Who is asking them?  We are.  A cascade of confusion - from resignation to confirmation to reconsideration to commission to oath.  The Biden Administration says we should ask William Rehnquist about it, because he told us the answer.  Except he didn’t.  Listen to it all...

Judge Jackson - or is it Justice Jackson (we discuss) - is confirmed, but we aren’t done discussing it yet.  Distilling the non-nonsensical questioning down, it really was an attempt to probe into the question of rights; who decides, and how, what rights Americans have?  We listen to the colloquy and use it as a jumping-off point for a wide-ranging discussion of fundamental, enumerated, and unenum...

The Senate Judiciary Committee hearings have concluded, as has the committee vote.  We put the Senators, and the Judge, back on the stage.  We listen to them and comment.  What do we know now about the Judge, and about the Senators, in terms of their view of their respective constitutional roles, and their constitutional views?  Their own words are replayed, and then Akhil and Senate expert Vik Am...

We’re a little late this week, but it’s worth it, as we are able to report on a lengthy conversation that our (returning) guest, Dean Vik Amar of the University of Illinois School of Law, had with the Chairman of the Senate Judiciary Committee, Illinois Senator Dick Durbin, just hours before our podcast taping.  He offered Vik and his students a truly inside look at the Supreme Court Confirmation...

Ketanji Brown Jackson prepares to testify at Senate confirmation hearings, and the air is filled with confirmation bromides. It is said that a judicial nominee cannot speak about past cases.  Or about cases that might come up.  Or about legal theories.  Is this true?  Some say that all that matters is that the nominee be qualified and admirable.  Can the Senate inquire further?  How far can a nomi...

Walter Dellinger and Charles Black are hard acts to follow, but our concluding role model is up to the task.  Telford Taylor was legislator, war hero, Nuremberg prosecutor, international law pioneer, law firm founder, tenured professor and scholar extraordinaire, public intellectual, and always a principled, skilled lawyer.  Professor Amar admired his work from afar, and that admiration led to a p...

Continuing our exploration of inspirational models in the law that deeply influenced Professor Amar’s career, today we learn of a predecessor of last week’s model - the newly passed Walter Dellinger - as we hear of the life of Charles Black.  A son of the deep South, Black made an enormous mark as he was a vital part of the team that won Brown vs. Board of Education, and in the aftermath, we see h...