Amarica's Constitution

Search-A-Lago

***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 probable cause is a must, that failure to heed these dictates means the fruits of the search will be suppressed.  Professor Amar presents an entirely different way of thinking about the 4th Amendment, and when he is done, you will wonder how you ever thought about it any other way.  Armed with this understanding, we then turn to Palm Beach and assess the Justice Department’s actions in this light. Continuing Education Credit is available after listening to this episode by visiting podcast.njsba.com.

Originalism on Trial

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 of American history, and through them, we define an originalism that has a clear method, recognizes its own limits, responds to critiques, and is consistent with a recognizable America - not an America with a Constitution and a jurisprudence for liberals or for conservatives alone.

Time is Now

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 affect us forever.  Professor Amar unwraps this scroll.

Tackling Kennedy

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 case along the way.  It’s a master law school class in case analysis, and we aren’t so sure that the majority passed.

Separate or Equal

***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 Establishment and Free Exercise clauses of the First Amendment.  By now our listeners should know the next step, as the Reconstruction must be brought in.  When we have finished looking at the text, the history, and the structure of the Constitution and its amendments, the case itself falls neatly into place.

The Long and The Short of Bruen

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.  And if this case indeed has great impact, is it in its short-term policy implications, or its long-term constitutional lessons - or somewhere else?  The case turns out, in Professor Amar’s “Princess Bride” view, to perhaps not mean what you think it means.

Unprecedented

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, particularly as we look to analyze the Bruen and Carson cases in forthcoming episodes, and as a big one – the ISL case – looms in the coming year.

Special Episode - Prediction and Prescription

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 and a half year mark of Amarica’s Constitution.  In addition to the now-final Dobbs opinion, we look at the role of Justice Kavanaugh, and how it compared with expectations and predictions.  Lots more for you in this special additional episode.

The Real Steal, Part 3 - Special Guest Vikram D. Amar

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 will follow later this week in addition to this regular episode.

The Real Steal, Part 2 - Special Guest Vikram D. Amar

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 article attempts to put to rest ISL theory by showing how it is wrong from every conceivable angle of analysis.  We take up that analysis, beginning with the text, history, and structure of the Constitution, and then through an ingenious analysis of actual practice.  We have been saying that this issue is coming, and by all accounts, it’s here.