Amarica's Constitution

Bigotry vs Bureaucracy: State Action and Private Freedom

There’s some highly questionable behavior going on in an area of Missouri, where a fringe group seeks to establish a whites-only enclave.  Objectionable?  We think so.  Unconstitutional?  Therein lies an opening to a whole host of questions.  Government action versus private action.  When is private action beyond private purview?  When does state action overlap into private domains, and where are the lines?  Where do these rules come from?  How can we think about new issues that may arise?  Akhil has thought about this, and written about it, so now we offer you a framework to think about such questions as they arise, now and in the future.  And, sadly, a giant was lost this week.  We offer some thoughts, with more to come.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Rosen on Liberty; Gorsuch on Gorsuch - with Jeffrey Rosen and Justice Neil Gorsuch

It is an honor to introduce the initial episode of our new sister podcast: The Blessings of Liberty, hosted by Jeffrey Rosen, president emeritus of the National Constitution Center and Professor of Law at GW.  Prof. Rosen begins with a bang, as he holds a discussion with US Supreme Court Justice Neil Gorsuch, including two books newly authored or contributed to by Justice Gorsuch.  We precede this with our own interview of Jeff Rosen, discussing the mission of his new podcast and his special passion for history, the Constitution, and the American idea.  Meanwhile, listen, too, for a special EverScholar opportunity for our loyal podcast audience.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Unrehearsed Answers

It’s time for listener questions, and no surprise that current events are on everyone’s mind.  We range from the supposed weaponization slush fund, to pardons;  illegal military orders; simultaneous office holding; and lots of converse-1983 discussion.  And Professor Amar looks at a possible error in one of his books.  Great questions from a great audience, and Akhil answers them without prep, on the spot.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Scrip for Scripture on the National Mall

After weeks of tracing the background history and constitutional principles at work on religious establishment, free exercise, and equality issues, the Administration on cue sponsors, holds, staffs, and headlines a “Rededication 250: A National Jubilee Of Prayer, Praise & Thanksgiving,” complete with a virtually all-Christian (one Jew) speaker roster, a White House website, money from Congress’ apportionment of funds for the 250th anniversary of the Declaration commemorations, and a drumbeat of emphasis of supposedly American Christian traditions.  We take it slowly and look at how it fits into the constitutional rubrics that we have examined.  Meanwhile, it’s the Yale Commencement, and Akhil has commentary on the main speaker.  And a number of news developments harken back to our podcasts past - how did we do?  CLE credit is available for lawyers and judges from podcast.njsba.com.

JFK's Wall

Our journey through the centuries of religious practice, attitudes, and constitutionalism has reached the 20th century, when several presidential elections set mileposts for the American religious debate.  The first major party Catholic candidate, Al Smith, met the worst sort of vitriol and prejudice, and was destroyed by it.  This cast a shadow over the later campaign of John F. Kennedy, and he answered it in a speech that we analyze and place in context, even as we thrill to the great man’s voice one more time.  We then trace a line from that speech, through several Supreme Court memberships, to the American cultural and constitutional religious landscape as the 21st century dawns.  Fittingly, perhaps, one of the jurists who has been prominent on this issue, Justice Thomas, celebrates a milestone on the Court.  CLE is available for lawyers and judges from podcast.njsba.com.

Fourteen Colonies, Ten Commandments

As the 10 commandments case makes its way towards the Supreme Court, we add another chapter to our study of the historical events and factors that went into the American constitutional tradition when it comes to religious freedom, religious establishment, and the relationship of government and religion as a whole.  We begin this episode where The Words That Made Us began - in 1760.  We take it forward through the revolutionary period, into the Articles and the Constitution and the Bill of Rights, and then wind up with the Civil War and Reconstruction, leaving us poised at last to take a serious look at what the Fifth Circuit thought it was doing, and what it actually was doing, when it allowed a law to stand that mandates posting of the Ten Commandments in every classroom.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Remember the Alamo Heights

We continue to trace the historical origins of the constitution’s approach to religion in American government and American life.  We take you on a tour around Europe at the time of the Reformation and for centuries beyond, all the way to American migration.  All this is remarkably relevant to recent events, as the Alamo Heights/Ten Commandments case comes to a head. Meanwhile, Sarah Isgur returns for a third helping - or is it grilling? - as we continue to discuss her recent book and it finds its way onto the best-seller list.  Individual justices are discussed along with much more.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Popes and Presidents

The President has picked a fight with the Bishop of Rome, Pope Leo X.  Putting aside some of the distasteful elements of language and hubris, we ask where this fits in with notions of church and state in a democracy.  What is the constitutional doctrine - is it “separation?” Where does it come from, historically and legally?  A general theory of such things can help us make sense - well, maybe not of everything that is said these days, but perhaps of the numerous cases that are percolating to and arriving at the Supreme Court.  And in a special treat, we continue our conversation with Sarah Isgur on her new book, Last Branch Standing, and look more deeply at the patterns of judicial behavior that have emerged from several of the justices, among other things.

Last Branch Stands, The Barbara Court Sits - Special Guest Sarah Isgur

This week it’s Attorney Cecilia Wang’s turn, as she appears before the Supreme Court to defend birthright citizenship in the Trump v. Barbara case, and we continue to analyze clips of the oral argument.  Meanwhile, we are joined by the host of the popular Advisory Opinions podcast: Sarah Isgur, who has written a new book that will be published, well, today.  Last Branch Standing takes us inside the Supreme Court from the life of a clerk to a tour of the Court’s history to a statistical analysis of voting patterns on the Court - which are far more complex than is commonly thought.  You can’t help but know more after this episode than you did coming in! CLE credit available from podcast.njsba.com.

New World, Same Constitution

Trump v. Barbara - the birthright citizenship case - reaches the Supreme Court, and we are there.  Akhil and Andy are at the oral argument, and immediately afterwards we stand outside the courthouse and you hear (and see, from the linked video) the emotions that affected not only your hosts, but no doubt the justices themselves as the case unfolded. Then it’s off to the audiotape, as we play the clips of the Justices and the advocates, and Akhil does his Howard Cosell imitation, analyzing the arguments as you hear them.  Given the Professor’s status as the author of an amicus brief in the case, a brief the Solicitor General chose to take on in his own reply brief, the perspective this episode offers our audience - you - is unique.  So with the arguments of the advocates; the questions of the justices; and the knowledge of the amicus, you will know as much as anyone and be in the best position to assess the case as a whole - after listening to this special episode and those to follow. And as always, CLE credit is available from podcast.njsba.com.