Amarica's Constitution

Staking our Claim

We’re back, and still waiting for the opinion in Trump v. Anderson, which gives us a chance to highlight important new evidence that has come to light - thanks in large part to Professor Amar’s great law student team.  It fatally undermines what seemed likely to be the reasoning the opinion was going to take.  Will it matter?  This is related to the role amici play in the Court ecosystem, and we look at how another case we had a brief in, Moore v. US, seemed to be possibly influenced by our brief by beginning our long-promised clip-based analysis of that oral argument. So a whole lot in a compact episode.  CLE is available from podcast.njsba.com.

What the Oral Argument Should Have Said - Part 2

As promised, we return in very short order with the completion of our analysis and response to the oral argument in Trump v. Anderson - before the Court has ruled. Again, key clips from the argument are played and dissected. The previous Part I episode concentrated on arguments concerning self-execution of Section Three; this episode reviews many of the other issues addressed by the Court, from questions of the nature of the Presidential Election and the closely related Electoral College, to the persistent irritant of "officer" and "office" questions.  As in the prior episode, Professor Amar “slows everything down” to allow you and hopefully the Court avoid sweet-sounding but flawed paths.  This episode is posted 8 days early for this reason. Continuing legal education credit is available; visit podcast.njsba.com after listening.

What the Oral Argument Should Have Said

EARLY UPLOAD - The Supreme Court heard oral arguments in Trump v. Anderson on Thursday, and we were so alarmed by the errant direction they took that we decided to take to the air early. Here are key clips from the argument dissected - exposed, really - to reveal the mistaken representations of the meaning of certain cases; the ignoring of key facts which then distort others; the absence of key lines of argument; and the danger that the Court may be headed for another debacle on the scale of Bush v. Gore. Professor Amar “slows everything down” so the sometimes subtle misdirection that a fast-paced oral argument can induce is neutralized, creating  clarity that we can only hope some Justice or some clerk sees in time.  This episode is posted 4 days early for this reason, and next week’s will follow later this week as well.  CLE credit is available from podcast.njsba.com beginning Monday, February 12.

20 Questions on Section 3 and Insurrection #1 - Special Guest Ted Widmer

Oral arguments are scheduled for this Thursday in the Trump v. Anderson case, concerning the possible disqualification of former President Trump from the ballot in Colorado, and with a myriad of questions surrounding Section Three of the Fourteenth Amendment at stake.  We have something new to offer, as the distinguished historian, Professor Ted Widmer, joins us to add his considerable expertise to the oh-so-timely topics of John B. Floyd and the conspiracy to prevent the certification of Abraham Lincoln’s election with the aim to prevent his inauguration and otherwise cripple the Union during the Secession Winter. This was of course integral to our amicus brief in the case, and this podcast offers additional support for its theses.  We also review the promised “20 questions” that the brief explored - the perfect review or reference as the Court faces this vital case that has gripped the nation.  CLE Credit is available from podcast.njsba.com.

A Self-Educating Gaffe

Oral arguments are approaching in the Trump v. Anderson case, and the nation is talking about little else.  At the Harvard Law School, Professor Amar is invited to debate a former US Attorney General and Federal Judge, Michael Mukasey, who also submitted an amicus brief in the case together with Bill Barr and Ed Meese, among others.  We analyze the debate - and the brief.  And in that brief, Akhil identifies what he considers to be an egregious error, which is telling not only in its fatal weakening of the particular argument, but in the way it calls into question the entirety of their brief, and how it points the way to needed reforms in the legal ecosystem as a whole.  This is an indispensable episode.  CLE credit is available from podcast.njsba.com.

The Amicus Brief - Part Two

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.  When you take the history one step at a time it is hard to escape the obvious parallels with the actions and inactions of ex-President Trump, and how they precisely align with the concerns the framers of the Fourteenth Amendment had that prompted them to advocate for and ultimately author, pass, and successfully ratify Section Three.  Will the Court see it this way?  Time will tell, but follow the discussion as we take you through it.  CLE credit is available from podcast.njsba.com.

Friends of the Court - The Brief

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 clear the certain intent of the framers and ratifiers of the Fourteenth Amendment - and the course the Supreme Court should take in this case. This, and the episodes to follow, may be the most important episodes we have offered in the more than three years of this podcast. CLE credit is available from podcast.njsba.com.

Section Three Goes to Washington

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 honest brief-writer can make their best arguments even better by considering how their readers will read them, and what might be most useful to provide to those readers.  It's not quite "handicapping" but it is insightful, as all America is wondering if this case might actually result in the removal of Donald Trump from Colorado's primary ballot, and eventually possibly more states' ballots as well.  It has come to this.

Section Three Punditry: The Good, The Bad, and The Silly

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 of these by choosing pieces that make the range of arguments out there.  We do our best to present their argument and respond to it, bringing Professor Amar’s considerable armamentarium to bear for your benefit.  And this week, Akhil has at least two - maybe three - major new ideas he brings to the national discussion.  They can be found here first.  CLE credit is available from podcast.njsba.com.

The World Turns to Section Three

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. Liberals are split; conservatives are split.  What will the Supreme Court do?  Spend some time with Amarica’s Constitution and we will help you make sense of it, and we will present the best and worst arguments out there.  And - get some CLE for your trouble!  Visit podcast.njsba.com after listening.