Season 5, Episode 4 (Show 212): End of an ERA

January 22, 2025

President Biden exits with an attempt to push ERA into the constitution, and in doing so, he raises all sorts of interesting questions.  And President Trump enters with an inaugural speech which we issue-spot.

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The last days of the Biden administration have come and gone, and with them, some controversy in the form of a presidential statement on ERA ratification, and some more controversial pardons.  Then came the inauguration of President Trump, and an inaugural speech some found dark and atypical, if unsurprising. The many events that followed will be fodder for future podcasts, but here we look at Presidents attempting to insert themselves in various ways that seem outside the norm, including a role in constitutional amendments.  And the norm-buster Trump sounded several themes in the inaugural that we highlight.  The speech and what followed were an avalanche of controversy, and perhaps that’s the idea, but we make a start.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Season 5, Episode 3 (Show 211): Looking Forward, Looking Back

January 15, 2025

What does a Trump administration with a Republican Congress and a conservative Supreme Court mean for the next few years? We start to tackle this by looking back and projecting the arrow into the future, beginning with Dobbs and abortion then, now, and later.

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As Inauguration Day approaches, anxiety and uncertainty, even dread, mixes with the optimism of some in the American polity. Many express a mix of apathy, weariness, or hopelessness, with a sentiment akin to “wake me in four years.” What would they find when awakened?  We begin to take a look ahead, in part by looking behind and evaluating how our own earlier prognostications have turned out.  We start with abortion and the Dobbs case, as it loomed large in recent years and clearly continues to reverberate and feeds resentment on one side, activism on the other.  What lies ahead for the law, the Court, and the people? 

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Season 5, Episode 2 (Show 210): Unconventional

January 8, 2025

The issues surrounding a possible constitutional convention are many, underappreciated, and incredibly dangerous.  Learn why.

CLE Credit Available for this episode from podcast.njsba.com.

With rumblings around a possible Constitutional Convention around, we have noted some similarities with those issues that surrounded the recent ERA discussions.  Now we dive deeper.  Can a convention be limited to one possible amendment or some small group of amendments, or is a “runaway convention” a real possibility?  Can a state (this means you, California) rescind its previous vote calling for a convention?  Suppose there were a convention; would it be like the Philadelphia convention?  Would California be no more powerful than Wyoming in such a meeting?  In fact, there are even more terrifying implications and scenarios – and we will review them for you.  Meanwhile, we have a new Speaker of the House – for now – and the January 6th certification did take place without incident.  But many believe the Speaker’s days may be numbered, and so our review of the history behind Speaker selections in the past remains relevant – and fascinating.  That John Quincy Adams keeps showing up in the strangest places – like the presiding officer’s chair when he arguably had no business there.  What’s up with that? 

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Season 5, Episode 1 (Show 209): Justice on the Spot – Special Guest Justice Stephen Breyer

January 1, 2025

Our fourth anniversary is marked by a groundbreaking discussion with former Associate Justice of the Supreme Court, Stephen G. Breyer, including his new book, Reading the Constitution, and much more, including behind the curtain of the Court itself.

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Amarica’s Constitution proudly celebrates four years of ambitious inquiry with a long-promised and very honored guest, former Associate Justice of the US Supreme Court, Stephen G. Breyer.  Justice Breyer placed no restrictions on our questioning, and we engaged him in a frank discussion on a variety of topics related to his time on the Court, and then we switched to his current book: Reading the Constitution: Why I Chose Pragmatism, not Textualism.  As you can imagine, Professor Amar has some opinions on the matter as well.  The discussion ranged far, from the French essayist Montaigne to 20th century American pragmatists, as Justice Breyer’s broad range is displayed in a way few have seen.  We take our time, and the Justice generously indulged, for an in-depth look at the thinking that helped shaped the bench for decades. This podcast will be available on YouTube video as well as the usual audio feeds found here; we will provide  information on accessing the video in subsequent podcast episodes, as well as on our Instagram feed – check it out.

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)

Season 4, Episode 51 (Show 208): Changing Your Mind, or Changing the Rules

December 25, 2024

The Equal Rights Amendment is on the agenda again, with many Democratic Senators asserting that it has already been ratified and should be so certified by the National Archivist.  We analyze.

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As the Biden Administration winds down, pressure is being applied to the President, asking him to order the National Archivist to certify the Equal Rights Amendment as part of the Constitution.  Senator Gillebrand has submitted a letter, co-signed by more than 40 Senators, making arguments that harken back to the resolution that accompanied the 1972 amendment, when Congress purported to place a time limit on the amendment’s ratification.  Also, some state legislatures withdrew their ratification after initially approving it, and the Senators are crying foul on this.  We take a deep dive into the arguments put forth by the amendment’s implementation advocates, the history of other amendments that faced analogous issues, including the great 14th amendment, and Professor Amar’s own scholarship on the matters.  Meanwhile, our 4th anniversary is approaching, and we preview the gala event – with Justice Breyer getting behind the microphone with us before you know it!

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Season 4, Episode 50 (Show 207): Unpardonable

December 18, 2024

President Biden pardoned his son Hunter.  President-elect Trump says he will pardon January 6 rioters and insurrectionists.  What does it mean?

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In the wake of President Biden’s pardon of his son, and with the shadow of President-elect Trump’s possible pardons of the insurrectionists who stormed the Capitol and attempted to prevent Congress from certifying Biden’s election, are there constitutional issues?  The Constitution itself seems direct on the subject, but it turns out there is a lot to discuss.  Scope, timing, subject, language, all are questionable.  Would either or both of these be impeachable acts?  What would happen to the pardon in that case?  Are there immunity issues?  Where does the pardon power come from, and how has it been used in the past?  What is the originalism of pardon law?  Lots to talk about, however you feel about the acts themselves politically.  And – some big coming attractions!

(LAWYERS AND JUDGES ARE ELIGIBLE FOR CONTINUING LEGAL EDUCATION CREDIT by visiting podcast.njsba.com after listening.)