Amarica's Constitution

Sense and Nonsensibility on Section 3 - Special Guests Mark Graber and Gerard Magliocca

Donald Trump’s disqualification for the Presidency under Section 3 of the 14th Amendment is on the docket for the Colorado Supreme Court next week.  We have brought the two leading experts on the history of this clause to our podcast. They have written extensively on the 38th-40th Congresses who passed and first acted under the amendment; on John Bingham, the “James Madison” of the Fourteenth; and they continue to provide pertinent historical details on almost a daily basis.  Professor Magliocca testified in the District Court hearing on this.  Suffice it to say, then, that the best arguments on both sides will be aired here first, before they are heard in Colorado, and you will be the judge today.  CLE credit available at podcast.njsba.com.

Guns, Clips, and Rahimi

The Supreme Court heard oral arguments in US v. Rahimi, a significant gun case, and we get to work.  We have pulled clips from the argument so you can hear the justices and advocates in their own words, and Akhil comments after each clip.  The case is important in itself, with wide implications regarding permissible gun regulation, and it also touches on a number of key methodological points that teach about originalism - properly done, and perhaps at times, improperly done.  CLE credit is available after listening by visiting podcast.njsba.com

Moore on the Brief - Special Guest Vikram David Amar

The Amars’ amicus brief in Moore vs. United States is the talk of the legal ecosphere.  Akhil’s co-author, Professor Vik Amar, joins us for analysis of the precedents that followed Hylton - faithful and otherwise.  This tour de force of legal analysis is perfectly suited for your CLE credit.  We also look at recent comments from the Supreme Court on Moore’s issues, and survey the reactions to the brief’s release.  Various arguments that purport to address some of the brief’s claims have emerged:  in support, in conflict, and complementary; we analyze and respond to them.

Moore, in Brief

In our 150th episode, we present the amicus brief in Moore v. United States, authored by Professor Amar with his brother, Professor Vikram Amar.  Reminder: CLE credit is available after listening by going to podcast.njsba.com.  The brief begins with the provocative statement that most other briefs in the case have missed the point?  What is the point that they missed?  We explain how their focus on the 16th amendment misses the basic constitutional questions which the Court answered back in 1796 in the Hylton v. US case. Who says so?  Some guys named Washington and Hamilton, to start. And this Lincoln fellow agreed later. But everyone seems to have missed this.  You won’t.

Aisles, not Walls

The follies in the House have ended, for now.  Many Americans looked upon the travesty with despair, wondering if our government might yet be up to the task of leading and reaching beyond party to find country and duty.  We take a good look and search for places where reaching across the aisle might still take place - and we try to do our part and go beyond demonizing those not in our own party.  Plus - the Amars’ amicus brief is up in Moore vs. US, and we open that door.  This episode is eligible for CLE credit at podcast.njsba.com.

Speakerless

Still no speaker.  Is it really the case that the House can’t do anything?  How might it work?  What about Section 3 of the 14th Amendment - does it play any role in the Speaker selection process?  Meanwhile, we turn towards the other Jordan and see the dangers of insecure borders that are inherently hard to defend.  Professor Amar explains how this simple fact led him to insights that resulted in a constitutional narrative quite different from those you may have been taught, and which makes certain predictions and conclusions.  Does it stand up?  We begin a process, which we will return to, of seeing where it leads us.  A sweeping episode - eligible for CLE credit by visiting podcast.njsba.com after listening.

A Tale of Two Jordans

The House is at it again, and there is no Speaker in the chair as of this recording.  So many implications - for Presidential succession, for democratic governance, for legislative stalemate.  Meanwhile violence escalates in the Middle East.  How are these connected?  We explore all these, and Akhil has some fascinating originalist analyses - of history you surely didn’t know; of structural reasons that the Speaker can’t be in the line of succession; and a new textual analysis.  Meanwhile - why can’t the House act?  Has this happened before?  (Hint: yes)  NOTE: CLE Credit Available for this episode by going to podcast.njsba.com after listening.

Allen and Affirmative Action, Again

After the Court decided important voting rights and affirmative action cases last term, these issues are back either before the Court or apparently headed for it. Why? We look at Allen v. Milligan, and affirmative action in the service academies, and find that the bounce-back of what seem to be entirely unrelated cases in fact demonstrates important constitutional and indeed originalist principles.  And who is at the center of all this?  Justice Kavanaugh, once again. (CLE CREDIT IS AVAILABLE for lawyers and judges for this episode.)

Eleven Presidents - Special Guest Bob Woodward

The career of America’s greatest investigative reporter has spanned more than 50 years, and Bob Woodward has told the stories of eleven presidents, the Supreme Court, the Intelligence Community, and indeed the American political system with a penetrating, persistent drive towards the truth. (LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.) Today this titan spends 90 minutes with us, and the insights continue to pour out of him. One can’t help but see Nixon at one end and Trump near the other; Woodward certainly sees them, and even with his ever-present professional distance and restraint, it’s powerful to hear the most deeply informed perspective there has ever been on the Constitution’s most ambitious creation - the Presidency - and the extraordinarily aberrant occupants of that office.

Have Kavanaugh, Will Travel

It’s almost October, and the Supreme Court readies to hear a new set of cases.  The Roberts Court seems defined above all by the Dobbs decision at this point.  The opinion, authored by Justice Alito, has been exhaustively dissected, but looking forward, we see various states taking further and more extreme actions.  What role will the so-called swing justices, some of whom wrote concurrences in the case, play in the litigation that the new developments will likely spawn?  What of the dire predictions of many pundits in the aftermath of the case?  And what about Amarica’s Constitution - what did we say, and what say we now? Travel the road with us.