Amarica's Constitution

Constitution Things

We are approaching our 200th episode and completing our 4th year of “Amarica’s Constitution,” and it seems appropriate to take stock.  By coincidence, the Yale Law School is celebrating its own anniversary, and these things come together as Akhil is part of a big event and presents a “big idea” that sounds like a strange saying: “the Constitution is a thing.”  We explain, elaborate, and celebrate a little bit.  We look back, and we look ahead to some real excitement over the next few months (besides the election, that is).  CLE credit is available for lawyers and judges from podcast.njsba.com.

How to Fix - and How Not to Fix - the Immunity Opinion

In Trump v. United States, we have said that the Court went far astray from the Constitution and from its duty, endangering the nation in the short and long terms.  Many have shared this opinion and these fears, and reaction has been profound. In the New York Times, two law professors take up the pen and offer a number of suggestions that purport to restrain and direct the Court towards Congress’ will, assuming that Congress agrees with the authors, that is.  Senator Schumer in a recent bill took a similar though not as extreme direction. We identify the flaws with these approaches, and offer an alternative that would be constitutional, and has an actual chance of being effective, based upon history and constitutional structure. We also take up some fascinating readers’ questions, including one which might matter for some overseas voters.  CLE credit is available for lawyers and judges from podcast.njsba.com.

Ex-Presidents: The Ex-cellent and the Ex-ecrable

The Supreme Court has, through its recent follies, managed to bring the status of ex-presidents into the spotlight.  How appropriate, then, that perhaps America’s greatest ex-president reaches a milestone this past week:  Happy Birthday, President Carter.  The ex-presidents, it turns out, have told a myriad of stories through the centuries.  America largely avoided succession crises until recently, but as far back as Alexander Hamilton, the potential for mischief was seen and feared.  Professor Amar, one of the few who have studied ex-presidents in any detail, treats us to a master class in this unusual but suddenly vital group of Americans. CLE credit is available from podcast.njsba.com.

The Return of the Enemies List

Donald Trump continues to spout inflammatory rhetoric; he has compounded his talk of being “a dictator on day one” with an intention to conduct a “purge” with extreme violence allowed, again allegedly for one day.  All this makes one expect that he will not back off his first-term tendency to take an authoritarian posture regarding the Justice Department. The New York Times ran an article presenting new and thorough look at Trump and the Dept in his prior term, and we analyze.  We also take more of your election-related constitutional questions. CLE credit is available from podcast.njsba.com.

 

The Blue Dot

Nebraska is no flyover state; its unusual electoral vote structure puts Omaha’s one electoral vote up for grabs - both as a contest for votes, and a legislative battle to possibly restructure Nebraska’s election law.  We tell an originalist story form the early Republic that surprisingly echoes some of the issues in today’s situation. Meanwhile, other types of blue dots, and how the right to travel and to reside where one wishes can play a role in the election.  We also try to proactively refute the inevitable accusations to come from predictable sources on these matters.  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Devil You Know

The New York Times looks at the Constitution as an allegedly anti-democratic, divisive, secession-promoting document.  They bring authority to bolster their case in the person of the Dean of the UC Berkeley School of Law, Erwin Chemerinsky.  We take a close look at this article and the arguments it employs.  This takes us to the center of the Constitution’s purposes, of course to questions of originalism, as well as an analysis of what sort of democracy the Constitution protects, and what sort it might protect against. CLE credit is available for lawyers and judges from podcast.njsba.com.

Your Turn

It’s time for your questions, and having a great audience means there are so many fascinating directions to go.  A Canadian listener tells of how a non-originalist purpose-oriented approach to constitutional law works for them - why not in the US?  We go in a different direction when we consider the wisdom of increasing the size of the House of Representatives.  Still another asks about whether the presidential immunity decision has undermined some fundamental aspects of criminal law, not to mention one of the Court’s greatest moments - the Nixon tapes case.  Keep those questions coming!  CLE credit is available for lawyers and judges from podcast.njsba.com.

The Kennedy Shame and Schumer's Folly - Special Guest Ruth Marcus

RFK Jr. has withdrawn from the race and endorsed Trump. This meeting of an estranged Kennedy and an indicted Trump, is laced not only with strangeness but also constitutional themes, as we explore.  Meanwhile, backlash after the Trump immunity opinion continues, and Senate Majority Leader Schumer has introduced legislation in response.  The great Washington Post columnist, Ruth Marcus, returns to our podcast to comment on this legislation and the many serious implications it would have if adopted, as well as the issues it raises for consideration even if it fails, as it seems likely to do. CLE credit is available from podcast.njsba.com

Circuit of Shame

The United States Court of Appeals for the Fifth Circuit has been overruled by the Supreme Court more often, and more forcefully, than any other circuit during the past term.  Why?  What are the consequences for the judges of the Fifth Circuit, if any?  Is this a problem for our judicial system, and if so, are there any remedies available?  Listeners to Amarica’s Constitution will not be surprised to learn that Professor Amar has some ideas on this topic.  He also grounds the problems and the solutions in history and structure, and lest one think this is a partisan attack on a conservative court, he tells of his past criticism of the then-ultra-liberal ninth circuit for analogous behavior. 

Term Limits Made Workable

Court reform is in the air.  Having presented the problems with the 18 year term proposals before the House and Senate, Professor Amar’s plan deserves its own scrutiny.  We therefore present the plan in detail, explaining the problems that it attempts to solve, the principles it attempts to uphold, and the criticisms it might attract. Since it is a proposal and not yet a statute, it is subject to modification and hopefully improvement, so we invite the audience to chime in with your own critiques and suggestions.  Let’s keep the conversation going.  CLE credit is available from podcast.njsba.com.