Advisory Opinions - Abraham Lincoln, Originalist | Interview: Akhil Amar

Episode Date: August 12, 2025

Akhil Amar, Sterling Professor of law and political science at Yale, joins Sarah and David for a deep dive into the constitutional battles and amendments that ended slavery, offering a preview of his forthcoming book, Born Equal: Remaking America’s Constitution, 1840–1920. The Agenda:—Exploring originalism and American identity—Our canonical texts—The Second Amendment and originalism—The evolution of constitutional interpretation—‘His errors were symmetric’—Harriet Beecher Stowe: America’s first female superstar Show Notes:—Read "Brothers In Law" Learn more about your ad choices. Visit megaphone.fm/adchoices

You ready? I was born ready. Welcome to advisory opinions. I'm Sarah Isger, that's David French, and do we have a special guest for y'all today? Should I tell you, or should we just wait until after the break? his new book, Born Equal, coming out September 16th, the day before Constitution Day. I think I've given you quite a few hints, right back after this. Here on advisory opinions, we get a lot of questions from listeners. Should I go to law school?

Which law school should I choose? And while we love your questions, sometimes the best answers come with a little more context and a lot more time. That's why College Solutions created What's Next? A new specialized division of admissions consulting. College Solutions has been helping high school students for more than 20 years to find the college that fits them best. Their team includes former admissions officers, financial aid experts, and wildly sharp counselors who help with everything from essay coaching to test prep to, get this, figuring out the return on investment for college. They're honest, they're data-driven, and they're not just trying to get your kid into college.

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You know, we had you after your first of this series of books, you're doing three books. Yes. The Fellowship of the Ring, the Two Towers, and the Return of the King. And now I finished the second one. The Words That Made Us is one of my favorite legal slash constitutional slash American history books. And here we're picking up in the run-up to the Civil War with your new book called Born Equal. You can pre-order it. I have pre-ordered it. I'm, yeah, he's showing it to us right here. And it's beautiful. It even has color maps, which are historical and like really, really gorgeous maps. And if you don't know, it means he's also a really big deal as a writer, because most publishers will laugh in your face if you want

color pictures in your book, but not if you're Professor Amar, then you get all the color pictures you want. And by the way, David French, you sound maybe not like death, but like heated up, death, warmed over? My volume on words is going to be a little lower. I spent the last four days outside of Medellin, Colombia, where my niece was getting married to this wonderful Colombian man and was wonderful time. And I don't know if I picked up a bug or if the act of shouting over pounding Latin music for many, many hours over the weekends has did this to me. All right. I want to start where you actually start in this book, but I want to go even a little maybe bigger picture, if one is an originalist, whatever that might mean, how are we supposed to

think about the Declaration of Independence, the Constitution, and the second founding, the post-Civil War amendments, the 13th, 14th, and 15th, and you add the 19th as well. But really, you start with the Declaration of Independence, but I think it's been this really hard tension for a lot of originalists, of what role the Declaration of Independence is supposed to play in our hearts and our minds, in our hopes, and our dreams. So that is the biggest and best question about American identity, about our country, and about constitutional law. So you get an A. So originalists are about our origins. And I say our, the first book was called the words that made us. And that was a pun. It was the U.S., the United States,

we, the people of the United States, and our origins are in July 1776. That's where we begin. We've Americans. That's where we are born. That book, the words that made us, starts actually in the gestation period. It starts in 1760, and we're not a we yet. We're just British colonies that happen to be contiguous on the North American mainland. And Massachusetts doesn't really talk very much to Virginia, doesn't really talk very much to Pennsylvania, doesn't really talk very much to South Carolina. They're all connected to London, to the Crown, but they're like the British Commonwealth of Nations, circa 1950. Think the Crown episode with young Elizabeth going, going off to the Commonwealth nations. They're not that closely connected to

each other, but they have a common crown. That's America in 1760. It's not a juridical entity yet. It's not an it. And in July 1776, America juridically is born. And the superstars out there will know it's actually July 2nd, 1776. That's when independence is declared. We're our own thing in the world. You can make treaties with us now. We can declare war and have peace. Okay, July 2nd is where the Second Continental Congress declares that we, these United colonies, are and of right, ought to be free and independent states. Two days later, they give the reasons for that to a candid world. They're trying to persuade Americans what they're fighting for and tell the rest of the world, here's why you should be on our side. Why? We're

doing that. We're submitting reasons, and that's July 4th. And then the question is, so if you're an originalist, you care about origins, and that's where we begin. And the question is, what's the relationship between that document and the later Constitution, 1787 to 89, and what's the relation of both of those things to the amendments to the Constitution? And we live under this amended regime. So here's how volume two begins. So volume one, and here's the biggest point of all. We Americans, in my view, lack a proper national narrative, a story of ourselves, who we are as a people. We lack that. And if we don't have that, we will die because the only thing that we have in common really are these central texts and the story, the history that unites them. Because

here's where we don't have a common religion, race, ethnicity, national origin, even geography. It's a vast land, north, south, east, west, city, hinterland, first language. Oh, we don't have some of the unifying bonds that maybe the Brits have. Oh, they have Shakespeare, you know, or maybe the Germans have. They've got Gerta or something, or the Greeks. They've got a Homer and the Odyssey and the Iliad or something. We have our history, which is a pretty young history, and it starts in 1776. That's our origin.

That's our birthday and the Constitution and the amendments. And I'm trying to tell in three volumes the story of us, the U.S., not the story of me or my ancestors. They're not even around. But if you're an originalist and I am, we start with the origin. So volume one was the words that made us, how we become a we. that's when you and I met, actually, on Constitution Day at Brown last year, September 17th of last year, and we talked about Volume 1. Well, now Volume 2 is out, and it starts where volume 1 ends, born equal, 1840 to 1920. And we still got slavery in lots of places in 1840. But

thanks to a series of events and amendments, at the end of this story, we, the people who have gotten rid of slavery, the 13th Amendment, and promised civil equality, black and white, male and and female in the 14th Amendment, and promised voting equality on grounds of race, the 15th Amendment, and voting equality in all sorts of other forms of equality, lesser included, when it comes to sex, by the 19th Amendment. And these four amendments, 13, 14, 15, and 19 are what I call the Lincolnian amendments. They are embodying Lincoln's vision, which begins with his reinterpretation of 1776. He's a profound originalist. He's a great lawyer saying we have to remember who we are, what we believe in, what our origins are. And once you see it, it's everywhere. And when you read

the book, you'll never be able to unsee it because every single thing Lincoln says is about these, not every single thing, but the biggest things he says are about the declaration and the constitution and the relationship between them and the need to be faithful to that. So here's how the book begins. The words resound, volume two, the two towers, a born equal. The words resound through the ages. Quote, four score and seven years ago our fathers brought forth upon this continent a new nation, conceived in liberty, and dedicated. to the proposition that all men are created equal, unquote. That's what we have in common. These canonical texts, which include actually the Gettysburg Address and the Declaration of

Independence and the Constitution and the amendments and the I Have a Dream speech, which begins five score years ago. This is our national narrative and it hasn't been well told by the historians. But just remember, he's saying this in Gettysburg, 1863. Oh, and the battle of Gettysburg was July, first, second, and third of 1863. They're fighting north and south about the meaning of America on the anniversary, you see, of America's birth. And there's also a Vicksburg going on. But in 1863, in November, he gives this speech, and he says, four score and seven years ago, 87 years ago. A score is 20 years. So four score, 80, if you know French, is 80 years, 87 years ago. So 1863 minus 87. Oh, he's talking about 1776. He's not talking about

the Constitution, which is drafted in 1787, discussed in 1787, 88, and it goes into operation in 1789. Oh, he's not talking about the Bill of Rights. He's also by conceded in liberty, but that's proposed in 1789 and pending in 1790, ratified in 1791. No, it's not talking about 1787, 88, 89, 90, 91. He is talking about 1776. And he says, that's when we begin. Our fathers brought forth upon this continent a new nation, a new thing in the world. And then he's telling us, what was it all about? It's conceived in liberty and it's dedicated to the proposition that all men are created equal. And he's saying that in America that hasn't yet gotten rid of slavery everywhere. But he says, we have to get rid of slavery, eventually

everywhere to be true to our origins. He's reinterpreting the Declaration. Oh, I heard you at the very beginning, you said, y'all, okay? And the Texans have a different account of even the Declaration. Oh, they declare independence in 17, excuse me, in 1836. And they've got a different interpretation of free and independent states and state sovereignty and everything. Oh, they're building on the Declaration of Independence, too. It's a different interpretation. Now, you spend some time in Texas, Sarah? Born and raised, and I have the Texas Declaration of Independence hanging in my basement. And do you know one of the guys who signs it, his name is T.J. Rusk. You probably learn that in, like, Texas history because they insist that you learn Texas history

in Texas. In fact, the federal courthouse in Houston is on, is 515 Rusk Street. But do you know what T.J. stands for? He's T.J. Russ. I'm going to guess Thomas Jefferson. It's Thomas Jefferson Rusk. Oh, it is. These guys are original as North and South. It's Jefferson Davis, the vice president of the Confederacy. Oh, you know him as Alexander Stevens.

He's Alexander H. Stevens. Oh, he's Alexander Hamilton Stevens. Oh, man. Alexander Hamilton spinning in his grave. Exactly. There's a northern interpretation of the Declaration and a Southern interpretation. and Lincoln's wins, and we get victory at Gettysburg and Vicksburg on the anniversary of July 2nd to 4th, and eventually that's going to be a 13th, 14th, 15th, and 19th amendments, which are the Lincolnian

amendments codifying his interpretation of the declaration, and he thinks the Constitution has to vindicate the declaration. That's what the book is about, and that's what your question is all about. That's the issue of America. Professor, you know, one of the ways that I've thought about the Declaration, this simultaneous existence of the Declaration with these words that you said that I think, you know, when I hear them, as Sarah said, chills, they're still powerful all these years later, just that the blunt moral force of that opening of the Declaration of Independence. And it existed side by side with slavery.

The question I have for you is, as you are. walking through the book, because you really are in that period where the conflict between those high ideals and that awful reality of slavery, that's where it culminates, is in that period. How much did the Declaration, what kind of role did that moral statement from the Declaration sort of play in the buildup and the lead up to the Civil War? How much was it the incompatibility of the moral ideal with the present reality of slavery that weighed on this country. It's huge, and there are different interpretations of what those words actually mean. In the middle of one of my chapters, all about the Lincoln-Douglas debates,

I give the reader 10 different readings of just this one simple phrase, all men are created equal. There are 10 different ways, at least, of understanding it. Lincoln, over the course of his life, evolves from reading seven to reading eight. When you read the book, I actually give the narrowest readings to the broadest readings. That's what the Lincoln-Douglas debates are at their heart all about. And think about it. These debates, which are originally about who's going to be the senator of Illinois from 1858 forward,

in the wake of the Dred Scott decision in 1857, where the Supreme Court basically said that feed I aren't persons. Oops, I mean actually that blacks aren't citizens. You see, because if you don't like Roe versus Wade, then a lot of people don't. They say Roe versus Wade is like Dred Scott. It's actually based on substantive due process and making things up. And Lincoln here is like the critics of Roe. He's saying, you just made that up. And that's a more. and I'm going to crusade against the Supreme Court. He's a great constitutional lawyer, the greatest of his generation, and he vaults to the presidency itself.

He's a nobody from nowhere, and he vaults to the presidency itself, a nobody from nowhere, no family name, no family fortune, not much of a family, in fact, most of them are dead by the time he reaches adulthood, His mother has died, all his siblings have died. His father is basically not around. He vaults to the presidency with a constitutional theory of what America is all about. And America is riveted by a series of constitutional debates between two lawyers in large part about the Declaration of Independence. That's what the Lincoln-Douglas debates are all about.

When you look at the platforms of presidential parties, the Declaration of Independence looms very large, and there are different interpretations of it, the Southern interpretation and the Northern interpretation. And Lincoln succeeds in winning the debates, even though he doesn't initially win the Senate seat. And by 1860, here's was amazing. His opponents, there are three different splinter parties that run against him. they in none of their platforms do they mention the Declaration of Independence because he's basically grabbed it for himself for his party for Lincoln's party and their interpretation comes to be the dominant interpretation he kind of wins the debate and here's what he says yes they had slavery but they put those words in not because they were essential to American independence they

weren't, that because they were committing themselves to a moral goal that needed to be reached in the fullness of time, okay? Because they wanted God on their side, they wanted the world on their side, and they put these words in, this is Lincoln's interpretation as a North Star, so to speak, as a goal to be achieved. And he also reminds folks, and I definitely do in the book, that it's not just Jefferson. It's back in 1776, it's Jefferson alongside Adams and Franklin, and they're from the North. And immediately after July 1776, they helped launch state constitutions that riff on the Declaration, and you have the following words or variations, all men are born free and equal.

And that's the Pennsylvania Constitution of 1776, and the convention is presided over by Ben Franklin. That's the Massachusetts Constitution of 1780. That's Massachusetts Convention presided over by John Adams. They're riffing on the Declaration, and oh, they're there in July 1776 alongside Jefferson. And immediately, when America begins, immediately, slavery starts ending in the North. Pennsylvania adopts a statute that put slavery on a path of fragile extinction in 1780. The Massachusetts Constitution of 1780 is interpreted by judges and jurors and the society as providing for the immediate abolition of slavery, a set of cases called Holmes versus

Jettison, the Quack Walker cases. So, and this is new in the world. This is the northern interpretation of the Declaration, and before then, see, Americans aren't the first to have slavery. The world has slavery. Almost all the world has slavery. Africa, Africans and slaving, other Africans, Asia, the Native Americans, many of them, the Aztecs are slaveholders, and so are the Mayas. So slavery exists in many societies, many times, and places. and the idea of freeing slaves, individual slaves, exists. It's in the Old Testament, freeing of individual slaves. It's in the New Testament, freeing of individual slaves.

It's in the movie Ben Hur. You know, a slave gets his freedom, Charlton Heston. It's in a funny thing happened on the way to the forum. Zero Mostel character, you know, connised for his freedom. So slavery exists everywhere. It doesn't begin in 1619. That's just when the first slave ships, you know, reach Virginia. And so that slavery is everywhere.

And the idea of freeing slaves is old half. Here's what the emerges, and it's the Americans who innovate it, and it's in 1775, 1776. We originate. I say these are not my ancestors, but I can affiliate with this project. We abolish slavery. We don't free slaves. We begin the process of abolition, and we do it democratically. The first abolition society in the world is founded in Philadelphia in 1775.

and its presidents are later going to be Ben Franklin and Benjamin Rush who signed the Declaration of Independence. And these state constitutions immediately take the language of the Declaration and start ending slavery in Pennsylvania, in Massachusetts, and New Hampshire, and elsewhere. Deep South doesn't do that, and the war will come over all this. And Lincoln is going to build on the Adamsons, not just John Adel. but his son, John Quincy Adams, who looms very large in this book, the only president to have known both George Washington and Abe Lincoln. Oh, and his son, Charles Francis Adams, who runs for the vice presidency on a free soil platform about prohibiting slavery in the West, and that's going to be Abe Lincoln's ambassador to Britain. So it's this originalist story

in which we move from Jefferson, and he's interpreted in certain ways in the south, Thomas Jefferson Rusk and Jefferson Davis, oh, but there's Adams and Franklin, and they're interpreted in different ways in the north through John Quincy Adams, through Charles Francis Adams. Lincoln's going to stand on their shoulders, and what he says in Gettysburg is building on all of that. But Sarah, back to your original question, what is the relationship between our constitutional system and these important words of the Declaration and Independence? And if you're an originalist, and he is a great originist, is Lincoln. And that's what I insist on in every chapter of the book. And truthfully, I've gotten already some very nice reviews. But there's a thing called

Kirkus, and it gave me a thing a Kirkus Star and Publishers Weekly. The one thing Publishers Weekly didn't love about the book is they thought that I was idiosyncratic and somewhat tedious in insisting that actually, Abe Lincoln was originalist. It's an originalist project. Americans are originalists. They disagree about what the Constitution means, but they think it actually matters, and they think the Declaration matters. And they say, oh, and I say, well, that means originalist can be liberals as well as conservatives, which is my view. And publishers weekly thought that was a weird idea, an idiosyncratic idea, and they thought it was wearisome in insisting on it. I would think, no, this is my evidence. I'm showing you the evidence for this.

This is a reason. This is how you prove a thesis. When we return, we're going to fast forward to the present day and ask our liberal originalist, what of it? Our aura frame just started over. As you've heard me say before, we set ours to switch photos one per day, and they go in chronological order. So when we get to the end of our photos and it starts over. It goes way back. It started over with our wedding, and we just got to the birth of the brisket. It is husband of the pod handing me this little eight pounds something newborn, and that's the photo today. This is the joy that ORAFrames can bring in your kitchen.

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In 2008, Justice Scalia is writing the majority opinion in Heller about the Second Amendment. And there's a big debate over what that prefatory clause means in the Second Amendment, a well-regulated militia, all of that stuff. And his point to, you know, take a very long opinion and put it into a sentence, is the prefatory clause is the why and the to keep and bear arms is the what. The why is interesting, perhaps, but it does not limit the what. I guess I want to know, because on top of being an historian, you're also a lawyer, you pay attention to the Supreme Court, is the Declaration of Independence, the Prefatory Clause. It's the why. It can maybe help you understand what some of the words mean, what people thought the Constitution, the text of it

was supposed to do, but it does not limit or expand anything in the Constitution because it's just that prefatory clause, a La Scalia's explanation in Heller. And importantly as part of this, you now also have a column at SCOTUS blog with your brother. It's called Brothers in Law. And you're writing about the modern implications of what you're talking about in your book, birth equality. And you're writing, you've written a three-part series on Scrametti, the transgender medical care for youth case. So, you know, if the book is based on the Declaration of Independence, is the Declaration of Independence actually, supposed to, for an originalist, you're a liberal, a vowed Democrat, I believe, and

originalist. Should we be looking to the Declaration of Independence when interpreting the Constitution in cases like Scrametti, for instance? Or when the birthright citizenship case comes up on the merits, which I think will happen sooner rather than later, it looks like. How does this work now? So lots of great questions in that. Let's start with. Scalia. So he has a book that he wrote, a matter of interpretation. I actually wrote the foreword to the posthumous edition of the book. And I said in this, it's really hard to be an originalist if you don't know very much history. And truthfully, Justice Scalia didn't know that much history. I say that. It's in, actually a matter of interpretation. I admire Justice Scalia, but I admire

Justice Thomas Moore. Because originalism is not addiction. game. It's ultimately about our origins. It's about history. And he turned it into a little bit of a dictionary game with the prefatory language and the operative language of the Second Amendment. And he took an easy case and made it hard. Yes, I do follow the Supreme Court carefully. And truthfully, I'm really proud of the fact that they follow me pretty carefully. I've been cited over 50 times in 50 different cases by the justices across the spectrum. And that's more than anyone else under age 70, and Heller is good, but it's not great. Way before Anton Scalia came along with Heller, Akiel Amar actually wrote a series of articles

and books saying, you have a right to have a gun in your home for self-protection. Okay, I wrote that in the 1990s, and I don't have a gun in my home for self-protection. And I've got nothing against them. It's just my mom of blessed memory was a pediatrician, and she saw lots of little kids. kids get killed in gun actions. She didn't like swimming pools either, you know, and I've got nothing against swimming pools. You know, I live next to a lake. So I said long before Justice Scalia came along, that there's a right to have a gun in the home for self-protection. And I said that before any Supreme Court case said that, or anyone in mainstream con law said it. And it's not because of my

personal views. But here's the point, Sarah. I said it because of the 14th Amendment. That's the stronger basis for a gun right than the original second, in the home, than the original Second Amendment, which is mainly about militias. There's a kind of custom and tradition and lived constitutionalism and Burke. And in lots of state constitutions today, there's a gun right. And that's really relevant if you're counting states, a la Glucksberg. So I don't think Justice Scalia's opinion in Heller is all that great. He took an easy case. and made it hard because he didn't know enough history and tried to jam everything into the Second Amendment

rather than talking about Lincoln's generation, the 14th Amendment and state constitutions then and now. And you've heard me already talk about state constitutions and Lincoln's generation. Okay. So now, actually, here's the point about the Declaration of Independence. And it's not, it is like a preface. Here are the reasons why.

The preamble has the reasons why, in order to form a more perfect union and for common defense and general welfare and the blessings of liberty. Oh, the copyright clause actually has a little prefatory language about how this is actually, you know, to encourage authors and inventors. So I do think it's fair game to read a command, do this, don't do that, in light of its purposes. The question, though, is the declaration, is that even the set of purposes because it's in a different document. It's not the preamble to the U.S. Constitution. It's not the Preparatory Language of the Second Amendment. It's this other text. And here's the key point. Even if you thought it's not part of the Constitution, technically, at the founding,

it becomes embedded in the Constitution thanks to the 13th, 14th, 15th, and 19th amendments. This is Lincoln's interpretation of the Constitution and the Declaration that gets embedded into the amendments. And it's not just Lincoln himself. It's a party that elects him and that basically puts these amendments into the Constitution. So you need to know the deep background of the reconstruction amendments in order to understand these. And the word equal does appear, Sarah, in the 14th Amendment and in the Equal Protection Clause. And it's implicit in that first sentence, and this is the birthright citizenship sentence that you also alluded to, it says everyone born in America and subject to jurisdiction is a citizen. And I've just told you

what that means. It means you're born a free and equal citizen. Those were the state constitutions. You're born free and equal. You're created equal in a certain way. That word born is important. And it's a riff on the Declaration of Independence as Lincoln reinterpreted. it and as his generation encodes it, embeds it in the 14th Amendment. You can't understand those words fully if you're an originalist because you've got to take seriously the amendments too by understanding the background behind them, which include these free and equal, born free and equal clauses, same word born in the state constitutions, which go back to Franklin and Adams in July of 1776. And you need to read the civil rights.

Act of 1866, which has very similar language, it opens, you know, that all persons born in the United States and not subject to a foreign power are citizens. And then it goes on to say what that means. They are their entitled to full and equal. They say both civil rights of all sorts. Okay. This is originalism. I'm starting with the text of, let's say, the 14th Amendment, and I'm telling you what's underlying that text. In a word Lincoln and in a phrase, his understanding, of the Declaration, and you see it in the Gettysburg Address, you see it in everything that he says and writes. That's originalism, and Scalia didn't read history books. Shame on him. It's because he's claiming to be an originalist. And my friend Clarence Thomas does read history

books, and so I'm proud of that. Sam Alito writes a better opinion on guns in a case called City of Chicago v. McDonald. It has more reconstruction history. So does Thomas's opinion in Bruin. It has more reconstruction history. Now, cards on the table. So audience can discount what I just said. Those later cases cite Akeel again and again again. So of course Akeel is going to like those cases. But I'm writing for the justices because they say they're originalness and they can't spend all their time doing historical research. I can. What I hope is that they'd read it and judge themselves, but I promise you, and I probably fail, but I'm not trying to write about my political views. That's why I tell people, honestly, I actually don't have a gun in my home. I'm not a gun

guy. I have nothing against them, but I think you have a right to have one in yours, and it's more because of Lincoln's generation than the founding generation. So, at the end of the two towers, you know, we're setting the stage for the climactic battles outside the city of Minas Tirith, and Sam and Frodo are heading into Mordor, and it's a cliffhanger at the end of the two towers. One victory has been won, but more victories or possibly defeats lay ahead. The book ends around 1920. It's at the height of Jim Crow, at the height or near the height of the wave of lynchings in the south, et cetera. when you are walking into these final years of your book, what is the state of the constitutional

argument in the United States? How is this continued bifurcated system of justice still being sustained in spite of the Gettysburg Address, in spite of the Civil War amendments? You know, if Sarah gets an A plus for her first question, you get one for that because this is, audience, this hasn't been pre-rehearsed or anything, but that's the question that I pose on behalf of the readers of the book. I end in a postscript, you know, 20 questions. Here's one of the questions that I asked and it's just, I over the last couple of weeks have reread the Lord of the Rings, like for the 20th time because it's so astonishing. And I'm even now pausing for the songs and the poems and, you know, the family trees.

And, you know, the linguistic stuff, the etymology, because it's such an amazing world. But, yes, he has these cliffhangers. So here's what I'd say, it's question 18 out of 20. Despite the book's often triumphalist tone, because, yay, you know, slavery abolished. 14th Amendment, civil equality promised for blacks and whites, men and women. 15th Amendment, racial equality, promised voting. 19th Amendment, sex equality, promised for voting. triumphant. Here's actually then the skeptical question I put in the mouth of a reader. Despite the

books often triumphalist tone, didn't the birth equality idea ultimately fail, at least for blacks and also for many Native Americans? My answer, and this is going to be volume three, which is tentatively entitled Earth's Best Hope, and its constitution from 1920 to the present moment. Yes, it failed in some respects for several generations after 1875. Still, in the wake of Ford's theater, the birth-acqualled idea did win inclusion in the text of the Constitution itself. And that text endured to make itself felt and obeyed after World War II, thanks in no small part to originalism and originalists, mid and late 20th century, originalists insisted that these Abe Lincoln inspired words meant what they said, led by Hugo Black on the bench, and Martin Luther

King, Jr. off the bench. Faithful 20th century constitutionalist powerfully invoked the letter and spirit of Abe Lincoln's amendments on behalf of Black Amendment's equality claims on behalf of citizenship rights more generally. I aim to tell this story in more detail in my next book, The Return of the King, alongside the more complicated story of Native Americans, both in Indian enclaves, aka Reservations, and beyond. Yes, you're right, but if you're an originalist, here's the point. Once it's in the Constitution, it's there, and we're going to take it seriously, even if the cases for a day, for a year, for a generation, don't. Plessy didn't take equality seriously, but it really does say equal. Explicitly

in the Equal Protection Clause and implicitly were all born equal citizens. And, I think the Second Amendment and the 14th mean something, and even if the justices weren't taking that seriously, it's there and it needs to be taken seriously. And I just gave you conservative originalism on gun rights and liberal originalism on racial equality. Originalism is a game that can be played by both. And we're all going to make mistakes and get it wrong, but at least if we're faithful, we should try to take seriously what we the people really did put in the Constitution. That's what originalism is all about. When we come back, I'm going to see if I can get Professor Amar's 9.7 levels of enthusiasm

over 10. All right, Professor, here's my question for you. You, as you've referenced, have been doing this for a long time. These books have in many ways been in your heart for decades. tell me the thing that you learned for the first time while writing this book that you were super excited about. So many things. I'll mention two or three first. I saw in this book what a huge figure Harriet Beecher Stowe

is in our national narrative. Can I tell you something quickly about that? because Charles Freed, a famous First Amendment professor, was my professor and a mentor of mine at Harvard Law School. He passed away recently, as you know. And I drove him. We'd roadtripped down to New York one time from Cambridge. And his wife packed us little roast beef sandwiches and brown paper bags. It was both awesome and very intimidating because what am I going to talk about with this man, you know, for a whole drive? And so I, if anyone knows, like, you get on 95 and you're like, okay, now I'm just on this for a really long time. Let's think of something to talk about. And I said, what is your favorite book? No, like, you know, what's the most important book? Nope, just favorite book. And he said, Uncle Tom's cabin unreservedly, and it is a travesty that we don't have people read that as part of the canon, the way that we do, for instance, the Great Gatsby or Huckleberry Finn or other things

that are meant to both inform your literary sense, but also your understanding of that American narrative that Uncle Tom's cabin is beautiful, both literarily and historically. And of course, I went home and read it. And he is 100% correct. And it is on the mandatory reads for my children, you know, when they can read. I hadn't really understood the importance of that book. And of her, the words that made us tell stories about people and tell you all about documents. It tells you about the state constitutions in 1776 and thereafter. It tells you about the Declaration of Independence, tells you about the Constitution and the Bill of Rights. But it also tells stories of what are conventionally called the Big Six. The most important framers are

first four presidents, Washington, Adams, Jefferson, and Madison, and then Alexander Hamilton and Ben Franklin. In this book, I've got four main characters. Abe Lincoln, Frederick Douglas, Elizabeth Cady Stanton, and Harriet Beecher Stowe. Those are my big four. And I hadn't understood before how important Harriet Beatrice Stowe is. She is the first, she's America's first female superstar. For the first time, everyone in America is talking about a woman. She sells more copies of that book than any novelist of the entire sense. And even if you think that she's not the literary equivalent of Jane Austen, and I'm a huge Shane Austin fan, and I talk about Jane Austen in the book, and this is 250 of her birth, and

Charles Dickens, even if you think that they're more gifted storytellers, more subtle ironists, even if you think that, okay, when Lincoln meets her, he says, you're the little woman who wrote the big book that made this great war. She helps end slavery. Okay. So even if you don't teach it in a literary department. Oh my God, you have to teach it in American history, an American political science. She's huge. And Abigail is interesting, but not everyone in America is talking about Abigail Adams. And Phyllis Wheatley was a very interesting poet, but she doesn't look a splash in the moment. And Harry Eat Your Stowe does, and that was, it was a surprise to me just to see how huge she was. Oh, and she doesn't just write. She writes as a woman under her own name, you see,

because George Sand writes under a male pseudonym, and so does George Elliott, and Louisa May Alcott uses an androgynous pseudonym, and all the Bronte sisters write under the last name, Bell, male, the Currier, Acton, and Ellis Bell or something. Even Jane writes simply under pseudonym. Harry Beecher Stowe, it's her own name. She's out there. She's writing as a woman, as a mother. This is all about Eliza.

It's not, it's about an uncle, but it's also about all sorts of women. and mothers being torn away from children. Wow. And I would tell the story about how she lost a baby herself, and it's very poignant. So that was one thing, just how huge she is. Who's her most famous brother? Her most famous brother is the Reverend Henry Ward Beecher,

who's the guy who invites Lincoln to Cooper's Union. And so here's another thing I realized, oh my God, Cooper's Union is a big deal. It's a big, you know, Joe Biden would have a big effing deal. Can we say that on the podcast? Okay. So Cooper's Union is huge because the people in the West first time see this guy. They've read about him in the Lincoln Ducklist of Base, and he's not just a yokel.

You know, he's not just, you know, a comic and a Garrison Keeler or something. He was a great, you know, author, Tom, Mark Twain. He's an amazing thinker. And when you read, this is the second big thing, Cooper's Union, oh, my God, read it. It's originalism start to finish. He goes through all the people of Philadelphia, and he says here, and names them. 30 or so of the 39 people who signed the Constitution actually advocated limiting slavery in this way or that way or the other day. I hadn't realized just how astonishingly originalist Abe Lincoln was.

And that's his ticket. He becomes present because America is in order. I hadn't understood just how originalist America was, just how originalist Abe Lincoln is, just how important Harriet Beecher. is and the Stowe family hadn't at all understood that Frederick does this is a very big deal. No one in America starts so low and rises so high. He's a great writer and orator. He gets his picture taken more than anyone else in the century. I didn't quite know how significant he is. All four of my heroes are relatively low-born on this born-equal thing. Lincoln is born into dirt. His mother dies in his 10th year.

His father actually never bonds with his father who's functionally illiterate and is mean to him. And his siblings are all dead. Wow. You know, self-made. Frederick Douglass doesn't even know his own birthday. Doesn't even know his own father teaches himself how to read astonishing. Now, Elizabeth Cady Stanton and Harry B. Stowe are born into sort of middle class or even upper class families. but they're born women. They're born at the bottom of, you know, the social structure in certain ways.

And wow, do they make something of themselves? I understood just how important Elizabeth Cady Stanton is. She gets more people to sign a petition. It's called the Mammoth Petition. 400,000 people sign an anti-slavery petition, and that's Elizabeth Cady Stanton. And here at Peter Stowe, millions of people buy her book, and that had never happened before for anyone. and she's a woman and all America's talking about her. Lincoln, you know, he's Lincoln and Frederick Douglass. Wow. So that's what I learned in the writing of these books and the researching of them.

That originalism, with all due respect, Justice Scalia, is not dictionary games. It's not just textual. It's knowing the history of America. And I'm good, look, I'm sure I made lots of mistakes in the book, but they're honest mistakes. Here's where I want my epitaph, you know, to read. his errors were symmetric. So sometimes maybe I'm too far on the left, maybe sometimes I'm too far on the right, but I'm really trying to tell the story of America, of us, and these American heroes,

and I didn't know their stories because I don't think scholars have done a good job telling us the stories. They haven't. You raise, when you talk about these, you know, what you might call second founders, you know, a second set of founders, you really raised something that, I've been thinking a lot about in our present moment, and that is how good principles still require good people to embody them and to advance them. And so in that balance, the good principles versus in the good people, sort of asking your opinion of kind of this, how does that play

into a theory of history? What is more potent the principles or the people? Is it actually that it's the virtues of good character that give life to the principles, or do the principles give life to the good character? Or am I doing a chicken and egg thing that we can't really ever solve? Well, we need both, and if we lose either, we die. And since you and I, you know, both happen to be Christians, born again Christians, we might say. So, yes, this is a second founding, this is a rebirth. And Lincoln says that at Gettysburg, and he's not conventionally religious, but he ends. This is, death is all around him. He's a funeral oration, but he says, this nation shall have a new birth of freedom, the government of the people, by the people, for the

people shall not perish from the earth. So he is reinterpreting the text. He's like this, you know, minister, again, a carpenter's son, and nobody from nowhere, you know, from Nazareth, Galilee, Bethlehem. You can take your pick about where he's actually from, you know, family from Jerusalem, ultimately. He is reinterpreting these texts. And he says, well, you've been taught, but there are these ten commandments, but there's an eleventh like unto them. Okay, see, he's a reformist rabbi is Jesus. He's reinterpreting them. And when your reinterpretation generates a new set of text, which we call the New Testament or something,

now you're reading the old ones in light of the earlier ones. Okay? We read actually the Declaration of Independence through the prism of Lincoln because he gets these new texts, the 13, 14, 15th, and 19th amendment's adopted. You know, we have the New Testament and we read the Old Testament through the prism of that. Okay. So you're going to need interpreters who are faithful. You're going to need people, you know, who are faithful rabbis and priests and judges and constitutional scholars. You're going to need them.

And Lincoln says all this as a young man in the Lyceum address. He says, we have to be faithful to these principles that we didn't originate, but that define who we are. So you need people, okay? But it's not going to work if actually the principles that underlie the system are evil ones. And he says, Lincoln does, that this house divided, and this is a biblical reference, cannot stand. If the Constitution, our system is based on a contradiction between slavery and freedom, it's unstable.

We've inherited an unstable system. We have to move in one direction or the other. The Declaration is our North Star. It tells us which direction to move in. They knew there was slavery, okay, but they're telling us America basically should, in the long run, move toward freedom and equality, liberty and equality. So you need the principles and you need the people. You need both.

And what's amazing is you don't just need individual great people, persons. You need a system that creates them and that picks them. Like, how did America produce and then put in just the right positions, Ben Franklin, who's, you know, born into nothing or Alexander Hamilton? Okay. America helps produce these people and then pick America. produces an A. Blinken and then picks him at the greatest hour. So you need three things, maybe, I'm saying now. Individual persons, a system, a culture that produces them and picks them,

and that's faithful to these principles that we inherit and is our obligation to improve. Federalist 55 says, you know, if people were really horrible, then probably you're better off with a monarchy just to keep everyone from devouring each other. He says Republican government, says Madison at the end of 55, presupposes virtue in a greater degree than any other system. It relies on ordinary people to vote, to basically obey the law, to not cheat on their taxes, to do jury service, to do military service when called upon, to engage in good faith with their fellow citizens, which is what you do all the time, you know, in your columns and elsewhere. That's what Republicans, that requires more of us.

We have to spend more time on community stuff, and we can't just spend all our time on baseball. Even if we like baseball, we have to have some time for, you know, service. And Republican government requires more of that than any other system. Okay. But the principles have to be fundamentally good ones. If you're in a Nazi regime, no, you shouldn't pledge allegiance to that Nazi regime. So it requires fundamentally good and revisable principles that could be improved, amended, making amends for the sins, a good, fundamentally decent society, and human beings who are willing to make all sorts of sacrifices and try to be faithful and honest and actually inconvenience themselves for the rest of it. Abe Lincoln gets assassinated, and he knows that he's running a risk of assassination, but he believes in certain things.

And he's a nobody from nowhere who believes deep in America. I promise if you read this book, you'll feel pretty good about America. And I won't hide any, I try not to hide any of the bad things about slavery. Lincoln is not perfect. He says racist things, bigoted things. So does Elizabeth Cady Stan. I'm going to try to show you everything. But net net, you compare our country and its history to the rest of the world.

I say, thank you, mom, thank you, dad, for leaving India, coming here, giving birth to me in Ann Arbor, Michigan, where I'm a birthright citizen, because I happen to be born here, even though you're not citizens. Thank you very much, you know, because all my cousins who are born abroad, oh, they all want to come here, and my cousins who are here don't want to go abroad, and that seems really interesting to me. So all of those things, good principles, amendable principles, a good and faithful culture of virtue and individuals who are willing to lead faithfully. The book is called Born Equal by Professor Akeel Ried Amar. He also has his column with his brother at Scotus blog, Brothers in Law, that are incredibly fun. And Professor, I guess the last

question is, when's number three coming out? Because can we do this next year also? These books are big and it's maybe we're telling people that, but I have to say they are page turners for me. It was like so much fun reading the first one. You, just so listeners, no, you did send me the galley copy of this one. So I have gotten some sneak peeks, but I like hard copies. So I will get mine and get to fully, you know, take a bath in all of it when it arrives on September 16th.

So when are we getting number three? I've structured it. Now I have to write it. Oh, it's going to take me a couple years and here's why. I don't want to rush it because I have one chance to get this right and I want it to be the story of America. And I have so much fun researching because I learn all sorts of stuff that I didn't know before. So it'll probably take me two or three years to write, but I've got it plotted. And the fun part is going to be writing and rewriting and rewriting and, and re-rewriting. And then the book comes out and then you see all the mistakes. You just think, oh, darn it. But you try to fix them and you move on. I go back and get your words that made us off the shelf frequently. Like, is it once a week? Maybe it's more like once every other week. But I'm constantly referencing it. It's a book you can chew on forever. And again, having read the galley copy of this one, I can't wait to get my hard copy in the mail. September 16th. We're an equal, Professor Amar, thank you for coming back.

Thank you.