Amarica's Constitution

We continue our discussion with Professor Roosevelt of his new book, The Nation That Never Was. We revisit our debate on the Declaration of Independence and specifically, the meaning of “all men are created equal.” This has profound implications, it turns out, for evaluating the 1788 transition from Articles of Confederation to U.S. Constitution, the 1861 secession, and the great Reconstruction moment of the later 1860’s.  Were these all secessions of a sort?  Were they extra-legal?  Were they treasonous?  And finally, what sort of national narrative can we coherently draw from all this?  Profound implications, especially when one considers the arguments and claims of the recent 1619 project, emerge.

***CLE Available*** The newly Republican House is threatening to refuse to raise the debt ceiling, raising the spectre of a US default.  Given the 14th amendment, section 4’s prohibition on “questioning” the debt of the United States, all sorts of constitutional questions and strategies have been raised.  We are fortunate to welcome Professor Jack Balkin, who knows more about this provision and this topic than anyone, to explain the origin of this constitutional provision, and why its history is directly relevant to today’s developments.  Meanwhile, what about the trillion-dollar coin and other mind-blowing approaches to the problem? We’ve got the lowdown on those, too.

A new book, The Nation That Never Was, by Professor Kermit Roosevelt III of the University of Pennsylvania Law School, engages in extensive historical, legal, political, and philosophical analysis of the American story.  This is nothing less than a search for America's most useful and unifying narrative, even as we are living with the controversy and divisions that the “1619” and “1776” projects have wrought (or highlighted).  Professor Roosevelt embraces some of Professor Amar’s key innovations and claims, including the centrality of the Reconstruction Amendments for valid originalist analyses,  but he also makes claims that, shall we say, get Akhil’s (and Andy’s!) attention.  So, too, will it grab your attention as you listen to a respectful debate.

The aftermath of murders in Idaho saw another terrible crime in Massachusetts, and all these matters raise questions of criminal procedure and the constitution.  We continue our 4th amendment reflection but add the 6th amendment, which has seen little attention on our podcast in the past.  What can a lawyer fairly do in your defense?  Add to this a discussion of the various anniversaries that this past week observed, and the long-promised answering of some great viewers questions, and you have a loaded episode.

A tragedy in Idaho riveted the nation, as a dragnet, a manhunt, a search of garbage, a DNA test, a bail hearing, an extradition, and much more surrounded the eventual arrest and the onset of legal process in the case.  Fortunately, Professor Amar has written on all these subjects, and we travel down these various roads, explaining and navigating their constitutional complexities.

We’re back early this week, as promised in our last episode, to help you take in the spectacle underway on the floor of the House of Representatives.  We give you the historical background, the constitutional framework, and we look at some of the tactical and political machinations playing out in as close to real time as podcasts allow.  We also peek at the still-simmering Santos situation, which takes us back into the law classroom for a look at the classic case of Powell v. McCormack and how it resonates in this situation.  This is “next week’s episode” this week to keep you ahead of the game.

Two year anniversaries in Washington mean a new Congress, but this year January also brings the echoes and the legacy of January 6.  These intertwine most intimately, as the end of the old Congress necessitated the windup of the January 6 Commission, a report, some referrals, and all sorts of constitutional questions.  Meanwhile, it also brings a new Speaker election and why should anything be simple in Washington these days?  If that wasn’t spicy enough, the usually routine seating of the new House brings Representative-ish Santos to Washington with all of his chameleon-like mendacity.  We have to talk a bit about that, too.

The third season of Amarica’s Constitution begins with a special guest, as the star of the podcast “Strict Scrutiny,” Professor Kate Shaw, spends an hour with us.  Like Andy and Akhil, she attended the oral arguments in Moore v. Harper - as she had attended many arguments when she clerked for Justice John Paul Stevens.  Her insights on clerking for the Court are particularly timely, since Justice Stevens wrote the dissent in Bush v. Gore, which listeners know has been enjoying a lamentable rehabilitation, it seems, as the Moore case is argued and the infamous case keeps popping up.  Professor Shaw also scoops her own podcast with a fascinating insight that links the January 6 commissions actions this past week with the Moore case, and you are there to hear it!

The oral argument in Moore v. Harper lasted approximately three hours.  In our last podcast, we began an analysis by tracing some of the advocates’ arguments and justices’ responses.  This time, we go to the key questions that lay at the basis of all the back and forth.  We answer them, but more than that, we look at their underpinnings and construct a framework in which, we believe, all elements of the case fit together.  For your trouble, audience, you will receive a master class in the law of “Fed Courts,” you will hear excerpts from a debate with Professor Amar, and even hear from the dictator of San Marcos.

After a year of lead-up, Moore vs. Harper has landed at the Supreme Court for oral argument.  Akhil and Andy travel to Washington and attend the three hours of argument in the Chamber.  We play clips and analyze them - the words, the logic, the briefs, the lawyers, the justices, the clerks, the legal world, as America holds its collective breath while democracy itself hangs in the balance.  This is the place for the most nuanced and informed analysis of the positions.  We also post relevant documents at akhilamar.com/podcast-2, for your “one stop shopping” whether you are a concerned citizen, a member of the media, or even a Supreme Court clerk or justice.