Episode 50: The Court Astonishes – Special Guest Ed Whelan

December 15, 2021

Our 50th episode finds the Supreme Court not quite done with abortion controversies, as two rulings on Texas’ “SB8” law drop – as does Akhil’s jaw, and that of our guest, long-time legal commentator Ed Whelan.

Amarica’s Constitution is 50 – 50 episodes, that is.  The Supreme Court isn’t done with abortion yet, as it marks our “silver episode” unveiling with a pair of rulings on the Texas abortion law, SB8.  The rulings themselves may not be long remembered, but the opinions contained sentences that shocked Professor Amar.  In a happy coincidence, the Friday rulings coincided with a Friday taping, and we happened to have a special guest – Ed Whelan, creator of the well-known “Bench Memos” legal blog and Distinguished Senior Fellow of the Ethics and Public Policy Center.  We dissect the very revealing statements by Chief Justice Roberts, Justice Sotomayor, and others, on an eventful day.

Episode 49: Roe Roe Roe – Stare and Stenchy

December 8, 2021

Following our two weeks of preparation and prediction, Professor Amar dissects last week’s oral argument in the Dobbs v. Jackson Women’s Health abortion case.

The oral argument is complete in the Mississippi abortion case, Dobbs v. Jackson Women’s Health. In our previous two episodes, Professor Amar prepared our audience with a remarkable menu of constitutional theory, a recap of the relevant cases and the orientation of the justices.  We now look at the actual argument and find where it cohered with Akhil’s notions.  We critique the arguments, the advocates, and the arbiters, and discuss arguments that might have been made.  Was precedent the theme, and did it have to be?  The voices of the justices, inserted in our podcast, put you right there, with Akhil as your guide.

Episode 48: The Future of the Past

December 1, 2021

It’s oral argument time in the abortion case at hand, Dobbs v. Jackson Women’s Health Organization.  Professor Amar pinpoints and dissects the legal terrain upon which the battle will be fought – and it is actually not abortion at all.

Fifty years of controversial jurisprudence have followed Roe v. Wade, and now the Supreme Court will hear oral argument in a case that many see as this story’s reckoning: Dobbs v. Jackson Women’s Health Organization.  In our last episode Professor Amar identified “precedent” as the legal coordinates where the abortion road may fork.  He now lays out the conflicting theories of precedent which the informed citizen needs to command when following this case. i Listeners to this episode will be armed with the tools to decipher today’s oral argument and tomorrow’s decision/opinion; indeed, in the briefs attached to this week’s “Show Notes,” both sides make arguments that will sound familiar to listeners to this podcast.  One can only hope that the Justices are as informed as Amarica’s Constitution’s audience.

Episode 47: About Abortion – A Precedent Primer

November 24, 2021

With SCOTUS oral argument set for December in the Mississippi abortion law case, Akhil preps us for the case; first, with a master class on precedent.

Abortion, and Roe v. Wade, is in the news again as the Supreme Court prepares to review challenges to the Mississippi law which, if upheld, would amount to an overrule of Roe.  Professor Amar tells us that the argument, in addition to discussions of abortion itself, will center on the role of precedent.  To prepare us for an examination of the particulars of this case, he conducts a master class on precedent.  Akhil has written extensively and authoritatively on this over the years; our audience will thus be among the most informed and comprehending spectators when oral argument takes place in December.  We will follow this next week, as we did in the recent gun case, by applying the principles just covered to the actual case.

Erratum: During the discussion of the common law, Professor Amar makes reference to Arson, noting that part of its definition curiously specifies that it take place at night.  In fact, the British Common Law as described in Blackstone’s Commentaries, Book 4, Chapter 16, discusses both Arson and Burglary (both offenses against the “Habitations of Individuals”); it is Burglary, not Arson, which specifies that it must take place at night to meet the definition.  Professor Amar wishes to correct the record; the chapter of Blackstone in question is provided below in the Show Notes.

Episode 46: To Heller and Back

November 17, 2021

Professor Amar takes you through the 2nd and 14th amendments and using that, provides an analysis of the Supreme Court’s current gun case, Bruen.

Now that our audience are masters of rights analysis after last week’s overview and framework presentation, we turn to the current SCOTUS gun rights case, New York State Rifle and Pistol Association v. Bruen. Consistent with Professor Amar’s approach, we begin with the text of the 2nd and 14th Amendments, along with a fascinating historical analysis.  When that is complete, the questions the Justices asked during oral argument take on a whole new meaning, both in seeing clearly the points they were emphasizing, and perhaps in some cases, those they were missing.  

Episode 45: Putting a Head to Our Gun

November 10, 2021

The Supreme Court heard oral argument on a New York gun case this week, and we aim to analyze it.  We begin with a master class on the analytical framework this case, and all “rights” cases, require.

Gun rights are in the news again as the Supreme Court hears New York State Rifle & Pistol Association v. Bruen.  Professor Amar discusses his landmark work on the Bill of Rights, and invites you to join him in an analysis of the issues in this and other “rights” cases.  These cases require an appropriate methodology, and we are treated to a master class in the tools we need to perform this analysis.  As we jump into the case, we will be armed with the framework we need for 2nd amendment, 14th amendment, and indeed most of the landmark cases that have come before the court over the past half-century, and will be before us, and the Court, now and in the near future.