Amarica's Constitution

We continue our survey of the Roberts Court’s oeuvre of constitutional cases, with particular emphasis on the series of cases that concerned making rules for voting and for voting districts.  These cases make particular use of “intratextualism” - a term coined by Professor Amar that provides tools - and traps - for textual analysis of the Constitution.  And as it turns out, it is also valuable on some of...

The SCOTUS term is behind us, and we take a look back - not just at this term, but at the entirety of the Roberts Court.  What are the most important constitutional cases of its time?  Where do the justices line up on the important cases - that is, how often are they in the majority; how often is the opinion right-leaning, as many believe is usually the case, and how many are left-leaning?  How often is the Court &ld...

How could the vote in Trump v. Barbara have been as close as it was?  Many have been bewildered by the vote in this case, given the strength of the arguments in Chief Justice Roberts' majority opinion, the long history of birthright citizenship, the statutory history, and the clear text of the 14th amendment.  We try to understand this by looking at how the dissents took an aberrant and incorrect approach to the very act ...

he Supreme Court ruled in two cases framing Unitary Executive theory.  So it’s entirely appropriate that we have two great experts on the topic joining us.  Steve Calabresi literally wrote the book on this theory, and perhaps it’s not surprising that he is more pure than the Court itself.  Meanwhile, Vik Amar has seen his theories concerning non-delegation and Congressional lock-in come up again and again...

America gets a 250th birthday present from the Supreme Court as Chief Justice John Roberts authors an opinion for the ages in Trump v. Barbara.  The Court went big and decided on the basis of the Constitution, not merely the Congressional statutes, that Abraham Lincoln's wish for the nation, birthright citizenship, which gives rise to the chance for birth equality and therefore the "new birth of freedom" Lincoln bequeathed us,...

In the wake of our recent discussion on private vs state action, a recent incident in New York regarding US Representative Dan Goldman’s banishment from a coffee shop because of his political stance brings these issues home, with additional questions related to public accommodations and more.  Meanwhile, the Supreme Court faced some of these similar issues in the case of Wolford v. Lopez, decided the day we record this, ...

The tributes to Gordon Wood have been pouring in, and as promised, we spend this episode with him and his peerless body of work.  Professor Steven Calabresi, Gordon’s neighbor, friend, and colleague, joins us, and how appropriate that is, as Steve and Akhil produced a tribute weekend at Yale Law School that reviewed and celebrated his lifetime of work.  Now we remember the man, the teacher, and most of all, the towe...

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 wher...

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 interv...

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...

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 o...

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 th...

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 throug...

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...

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 ever...

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 Cou...

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...

On the eve of the oral argument in Trump v. Barbara, we offer you a listener’s guide to the spectacle.  What is the essence of the argument?  What are the hard questions for Solicitor General Sauer, representing Trump?  What should Attorney Wang, ACLU attorney for petitioners, be prepared to answer?  What should the audience be listening for - clues to how the argument is going?  We provide all this a...

Akhil and Andy visit a high school in Garden City, NY, to speak with outstanding high school students about Born Equal.  In the process, we trace one of America’s great credos - “All Men Are Created Equal” - from the Founding, all the way to Lincoln - and beyond, to the fourteenth amendment; and finally to birthright citizenship and next week’s momentous Supreme Court case, Trump v. Barbara.  The s...