Akhil Amar Talks Liberal Originalism

Sarah and David kick off the week with an exciting discussion of liberal constitutional originalism ...

By and

Sarah and David kick off the week with an exciting discussion of liberal constitutional originalism with Akhil Amar, author of The Words That Made Us: America’s Constitutional Conversation, and constitutional law professor at Yale University. Our guest gives a dynamic perspective of the decision in Roe v. Wade, as well as dives into the nitty-gritty of the varying modes of constitutional interpretation. Who gets to decide what the common good is? Are philosophers really as smart as they think they are?

Show Notes:

–The Words That Made Us: America’s Constitutional Conversation

–Amarica’s Constitution

Keep reading with a free account
Create a free Dispatch account to keep reading Get Started ALREADY HAVE AN ACCOUNT? SIGN IN
By and
Comments (107)
Join The Dispatch to participate in the comments.
 
  1. Sean Massey

    Great podcast and discussion. I haven't posted much in the past. I just wanted to let you both know as a non-legal person. Just a normal guy living in fly over country. I really enjoy this podcast and the discussions you two have with or without guests. You make things very understandable and pretty easy to follow. Even for folks who just have a normal under grad degree in the non-legal field.

    Collapse
    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Thank you!!!

      Collapse
  2. Avatar photo
    Ben Connelly

    This was a good conversation. I’m not completely persuaded but I’m glad to hear a perspective that challenges my own.

    Please have a Founding/Constitutional scholar on, though. (Noah Feldman does NOT count.)

    Collapse
  3. Avatar photo
    Rachel

    I have an AO question, and I'm just not sure how to email it. I was hoping for a discussion about the southwest flight attendant getting the huge settlement after being fired for complaining about union support for pro abortion activities. Not a lawyer, just enjoy getting educated!

    Collapse
    1. Avatar photocircle-angle-nib
      Sarah Isgur vertical-nib Author

      Oh yeah I’ll need to go look at that again

      Collapse
      1. Avatar photo
        Rachel

        It seems like she was kind of awful from reporting, but that's reporting, and I know you're all about facts!

        Collapse
  4. Payette

    Would have loved to listen to this, but the sound quality was bad.

    Collapse
  5. EJohnson

    I agree. I only heard about 1/3 of what he said. The 1/3 made me want to hear the rest. I thought it was the professor, possibly not an easy fix— he seemed to lower his voice at the end of sentences—as if speaking confidentially. I will try the slower speed.

    Collapse
  6. Scott Watson

    I have been reading Professor Amar's spicy critique of ISL doctrine and listening to his Amarica podcasts on the topic. I live in a state (MO) where we have a legislature that would certainly welcome the chance to operate independently of the state Supreme Court or the Governor. It could be argued that the legislative body is dominated by GOP activists. Perhaps that helps clarify to me the warnings that Professor Amar is sounding. With our legislators' history of attempts to overturn or prevent Medicaid Expansion, legally voted in by the voters in the state, I could see them easily wanting to steer election results. In the case of Medicaid expansion, the GOP activists simply refused to fund the costs to allow additional applicants. The state Supreme Court took about 15 minutes to return a unanimous finding that rejected their efforts. ( Is there a Nah Dawg theory at the state level?) The point is not the merits of the isue, but the attempt to circumvent laws and voter decisions that helps Professor Amar's warnings land with me.

    Collapse
  7. Avatar photo
    Jim McC

    That was indeed an excellent episode- I'd say my only critique was that I'd liked to have heard more areas where there were genuine disagreements with Akhil Amar. Maybe on his podcast? His articulation of the differences in jurisprudence was excellent, though I thought his explanation of Independent State Legislature doctrine was unclear; I followed it better in yesterday's recap (though maybe that was the sound issues). In any case, perhaps this puts to rest the elsewhere-articulated theory that originalism is simply a Trojan Horse for conservatives to inject their policy preferences into the law, though it certainly leaves open the critique that they are not always consistent in applying originalism when it might lead them to policies they dislike (even Thomas, though I think he's been the most consistent).

    Collapse
  8. John Townson

    This was a great podcast (despite audio!); really enjoyed Prof. Amar's perspective. I do have a question: he characterized the Constitution as"pro-slavery" and sited the 3/5 rule as evidence. But as I understand it, the 3/5 rule was a compromise that reduced the electoral power of the slave holding states, so what am I missing?

    Sarah: I would love to hear a good clean debate on this question: was the US Constitution "pro-slavery"; similar to what Declan did on the Florida "dont say gay" bill where Prof. Volokh squared off with an opponent (and won IMHO!) It is easy to look back from today's perspective and criticize the founders, declare them hypocritical (Jonah!), but given the historical context I suspect the truth is more complicated.

    Collapse
  9. Jeff Wildrick

    I loved the podcast except the audio quality made it very difficult to listen too. If the volume when David and Sarah were speaking was 10, then the volume of the guest was at best a 7, meaning I had to keep adjusting the volume of my speakers in order to understand the dialogue while driving. I assume this had something to do with the guests equipment, but the same kind of thing seems to happen often enough that it feels worth mentioning. Is there a way to boost audio when someone talks quietly? If so, I lovingly urge you to explore that possibility in the future.

    Collapse
  10. Avatar photo
    Lawrence D'anna

    When you asked this guy about Bush v. Gore and ISL, he spent almost the whole time trying to puff up his own authority, brag about how many books he's written, and making fart jokes instead of actually making any kind of argument. It was pathetic.

    At the very end, when he finally got around to making an argument, he did the exact same thing he criticized Lochner and Roe and Ronald Dworkin for. He found some very abstract general principle in the constitution "presidents choose judges, judges don't choose presidents", and reasoned directly from that without looking closely at the details of the actual text or the actual case.

    Bush v. Gore was a case about specific officials in Florida and how they were administering the election in specific counties. The supreme court didn't "choose the president", they said that the way those officials were doing a recount was illegal and ordered them to stop.

    Now I have no idea if they were right or wrong about that, but I know Amar's attempt at an argument doesn't touch it. The fact that had the result of making Bush the winner instead of Gore doesn't mean the court is picking the president. How could it? If that argument were accepted, it wouldn't just mean Bush v Gore is wrong, it would have to mean all federal election law is wrong, because if a court rules on an election case in a way that could change the outcome, they're "picking the winner".

    Collapse
Load More