Amarica's Constitution

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.

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.)

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.

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.

It’s an assortment of topics as listeners response to some recent developments and nagging questions.  We revisit the 303 case, specifically the dissent, as Justice Jackson lays out an interesting hypothetical that doesn’t produce, perhaps, the intended response - at least from Professor Amar.  Meanwhile, Justice Alito is back in the news with his judicial Declaration of Independence - Akhil may not quite agree.  We also have an exciting prelude to a big announcement about our podcast!

Two recent major podcast themes - section 3 of the fourteenth amendment, and judicial ethics - echoed through the news this past week.  Wisconsin legislators seek to impeach a new state Supreme Court Justice before she even sits for a case; and in Washington, Justice Alito is asked to recuse himself because of an interview he gave. Meanwhile, Section 3 is addressed by a former US Attorney General, who says it is inapplicable to the President for reasons that may seem counterintuitive, even strange.  We analyze the claims as well as what lies behind them in our constitutional system. CLE credit is available from podcast.njsba.com.

Legal experts William Baude and Michael Stokes Paulsen continue their exclusive discussion on the enforceability of Section Three of the 14th Amendment, exploring its potential application to Donald Trump and others. They analyze Congress's role in enforcement, discuss recent cases related to the January 6th insurrection, and raise questions about who has the authority to interpret the Constitution. The podcast also delves into the concept of rebellion, the president's obligations, and the exclusion of specific individuals from office.

Distinguished authors of a major article on the 14th Amendment, William Baude and Michael Stokes Paulsen, discuss the disqualification of Donald Trump. They explore Section Three of the Amendment, the uncertainty of the Constitution's future, the importance of historical originalism, the power of amendments, duties to enforce the Constitution, technicalities of aid and comfort, lessons from the Civil War, the historical context of the 14th Amendment, and potential constitutional crises.

Everyone needs a translator, and for decades there have been few better than Washington Post columnist, reporter, and editor Ruth Marcus.  She has made understandable the intricacies of many a Supreme Court matter, not to mention the vicissitudes of other Washington institutions.  Now, with Federal and State cases against former president Trump pending, the complexities are impressive, but we take you through them with Ruth’s help.  There are also stories galore, with angles political, constitutional, and gleeful.

Ex-President Trump faces a number of trials, and he doesn’t like where some of them are.  Too many Democrats, or he doesn’t like the judge.  Does he have recourse?  No surprise - Professor Amar has written on this subject.  There is a fascinating history behind it, an originalism analysis, and, most importantly - an answer.  Changes of venue, bench trials, peremptory challenges, unanimous verdicts - they all find their way into this episode.