Advisory Opinions - Akhil Amar Talks Liberal Originalism

Episode Date: July 19, 2022

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 -Eradicating Bush-League Arguments Root and Branch: The Article III Independent-State-Legislature Notion and Related Rubbish -Time: Why Liberal Justices Need to Start Thinking Like Conservatives -New York Times: The Constitution Is More Than a Document—It’s a Conversation Learn more about your ad choices. Visit megaphone.fm/adchoices

And if you're just joining us, we're live from Evan's living room. It looks like Evan is about to purchase tickets to today's match. Kate, the real test is, will he use the BMO Toronto FC Cashback Mastercard? Well, if he wants to earn cashback on his purchases, he will, and... Oh, hang on. He's at the computer with his card, and he's done it! Oh, clicky-click magic trick! The clicker around the room! You guys just about finished?

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maple syrup on Halo Halo, Montreal style bagels eaten in Brandon, Manitoba.oba here we take the best from one side of the world and mix it with the other and you can shop that whole world right here in our aisles find it all here with more ways to save at real canadian superstore you ready i was born ready. Welcome to the Advisory Opinions Podcast. I'm David French with Sarah Isker, and we have a tremendous podcast for you

today. We have a fantastic guest for you today who's going to talk about progressive-slash-liberal judicial philosophies in a way that no other guest has, going to explain them in a way that no other guest has, and you're just going to enjoy every minute of this. Actually, I'm recording the intro just after we recorded the podcast. I'm giving you a preview of how much I liked it. So let's just not delay any longer. Sarah, introduce our guest. I'm so excited. AO listeners will know that I have referred to this guest as my main intellectual crush on the left, but it might not even just be the left. It might just be overall legal intellectual crush is here today.

It is Professor Akhil Amar from Yale Law School. He is the author of, I mean, he's the author of a lot of books, let's be clear, but his most recent book, The Words That Made Us, America's Constitutional Conversation. And a lot of you have asked about podcasts from the left perspective

that you should be listening to. Amaraka's Constitution is a fantastic podcast that Professor Amar does and highly, highly recommend for all the reasons that you're about to find out in this podcast with him. So welcome, Professor. Thank you very much. And speaking of that, I would love it if you both came on to my podcast. We can do a home and home and introduce our audiences to each other. Done. This is a great plan. So there's so much that we want to talk about. But first, let's just introduce the audience to how you view yourself on the political spectrum and on the legal ideological spectrum. Define yourself, Professor.

the political spectrum and on the legal ideological spectrum. Define yourself, professor. In three words. FDR was once asked actually what his philosophy is, and I think he said he was a Christian and a Democrat. I happen to be a Christian and a Democrat. I was chair of the Liberal Party of the Yale Political Union back when I was an undergrad and I identify as a liberal that connects me to classical liberalism for which I have respect. I don't love the word progressive because they actually stood for a bunch of things that I don't quite like. I quite candidly dislike the word socialist because Oh, because that worked so well around the world. So I'm a Democrat. I'm basically a kind of Amy Klobuchar kind of Democrat, if you ask me who in the world out there I support politically, presidentially, and otherwise.

But most of all, I'm a professor and I have to profess the truth as it's given to me. I'm a law professor. The law isn't always what I personally would prefer it to be, but if I'm a law professor, I'm going to tell you what I think the law actually is, and if we don't like it, we can change it. And within law, I'm a constitutional law professor. I also teach history and political science. And I self-identify as an originalist. So I'm a liberal originalist. And many folks think that those are incompatible categories. With respect, I do not.

Now, let's just dive in on that point. What is the difference between a conservative originalist and a liberal originalist? Ideally, there shouldn't be that much because we're originalists and it should be what the law actually is. But people come to the world with lenses and priors and perspectives. And so I want to be candid with my audience about what my politics happen to be. But I teach every year with my good friend Steve Calabrese. We co-teach a class. It's a class on originalism, and we've done it for many years at Yale Law School. He is, in case your audience doesn't know, one of the co-founders of the Federalist Society.

It was founded at Yale when I was a student along with Steve and I was there at the beginning and was kind of a fellow traveler of sorts. I would go to their meetings and say, yes, but what about, and okay, but. And so they gave me the informal title of devil's advocate. But when Steve, and Steve is the national co-chair of the Federalist Society, excuse me, he's national chair, excuse me, he's the co-founder and national chair, and Steve happens to be a Republican, more conservative, I'm, as I mentioned, a Democrat, we're both originalists, we converge an awful lot.

Far more than you might think if you thought law was just politics. Because then we, you know, since we're politically different, we'd be juridically different. But we both, for example, think that Roe versus Wade was not well defended, well reasoned, but was wrong, egregiously wrong. I admit that. I'm liberal. My brother, Clifford Harry Blackmon.

We also, Steve and I, both think that Obergefell, in fact, was right as a matter of equality. And that's really interesting. The chair of the Federalist Society is on record in print as being pro-Obergefell, anti-Roe. Oh, and so am I. So, and not all originalists agree with our critique of Roe or our embrace of Obergefell. But at the end of the day, you know, as a professor, as a law person, I have to tell you what I think the law is.

But in the spirit of full disclosure, I identify that politically I happen to be liberal just because so many people in the world today really do see much of what's happening through the prism of their ideology, their political ideology and affiliation, their identity. and affiliation, their identity. Will you give us a bit of the lay of the land on the left in terms of potential methodologies, whether it's living constitutionalism, sort of beefing up substantive due process? What are the debates happening on your side of the spectrum? So most liberals think that they're opposed to originalism. And one question is, what's your alternative?

I think they're mistaken in that. I think they think originalism consistently leads to all sorts of outcomes that they can't abide and it lacks sort of proper philosophical attractiveness and deep roots. I'll get to all of that. So there are liberal originalists in the academy other than yours truly, my dear friend and colleague, Jack Balkin, I think would put himself in that category. Because there are not so many today, I would say the late Walter

Dellinger, he recently passed away, was in that category before us in the academy. I think that John Ely, who clerked for Earl Warren, wrote a very important book, the most important book in constitutional law of his generation, a book called Democracy and Distrust, he taught at Yale Law School and then at Harvard and then at Stanford where he was dean. I think he was a liberal originalist of a certain sort. The granddaddy of us all, the small group of today's liberal originalists, and then I'll tell you what most of the liberals are doing today, is I think the most important original jurist of the last century, and he is not Robert Bork, who was one of my teachers, not

Antonin Scalia, not Clarence Thomas, who was a more actually serious originalist than Scalia ever was in my view, not Sam Melito, who is increasingly becoming originalist, and the Dobbs opinion, when added to an opinion he wrote a while back on gun rights in America, City of Chicago versus McDonald, are pretty extraordinary and ambitious original statements. But the most important originalist is not Bork, not Scalia, not Thomas, not Alito, not Ed Meese, who is an important person in this pantheon. The most important and influential originalist of the last century was a liberal, was Franklin Roosevelt's first appointment to the United States Supreme Court, Hugo Black.

And I believe he was the driving intellectual force of the Warren Court, not Earl Warren, not William Brennan, which is how it's taught in fancy law schools, because William Brennan went to a fancy law school, Harvard Law School, and Hugo Black was a hit from the sticks. But Hugo Black actually always carried a copy of the Constitution around with him, learned his history, was self-taught in kind of an Abe Lincoln tradition and only in America tradition, like coming out of a cornfield, you know, like Field of Dreams or something like that.

And he overruled, he got the Warren Court to overrule precedent after precedent after precedent. Sound familiar? Because it should, given last month's events. Overruled tons of precedents in the name of the Constitution, in the name of originalism, text, history, and structure. He says, oh, it says right to vote. We should do that.

One person, one vote. Oh, it says freedom of speech. We should actually protect that. Oh, it says religious freedom and equality. So we shouldn't have organized sectarian prayer in the schools because that's not really equal. Oh, it says actually fundamental rights that states should follow no state shall make or enforce any law which will abridge the privileges or immunities of citizens in the United States oh we should take

that seriously and Sarah that's in part a version a liberal originalist version of what other people call substantive due process there are fundamental rights They really are best rooted not in the due process clause, but privileges, immunities. He said criminal defendants have certain rights. Let's take those seriously. He's the preeminent originalist in my view, and we can talk about how what we're seeing now is a conservative homage and echo by this court of Hugo Black. But you asked me also,

you said, what about substantive process? Oh, we liberal originists believe mainly in privileges or immunities. And we're with Clarence Thomas on that, trying to take that seriously. But Hugo Black said all that first. But you also asked me, Sarah, OK, but what's going on in the academy today, which is generally liberal? What's their alternative to originalism? And I'm not sure they have one. The class that Steve Calabresi and I teach is called Originalism and Living Constitutionalism. That's the mantra. But what does that mean?

At its best, here are the alternatives. I'll try to be as charitable as I can to describe the realistic alternatives. Some folks are precedent people. They don't actually prioritize the text of the Constitution, its enactment history, its overall structure. They don't prioritize a document, which includes amendments, of course. That's not what they have their ultimate fidelity to it's actually an evolving project of elaborating the landmark cases supreme court cases and it's principled it's law-like it constrains judges

there are conservative precedent people like the younger justice harlan in the 1960s. There are liberal precedent people. I would say David Souter started out Harlan-esque and sort of drifted a little bit left, but he was a precedent person. Elena Kagan sees herself very much as a precedent person. Now, she may not going forward because the precedents have been repudiated and that's precedent on precedent,

and she has to take that seriously as a precedent person but but one principled alternative is the precedents um and and if you're a liberal you say oh the warren court was pretty good let's keep that you know um let's let's preserve those precedents and let's try to you know insulate overturning. Here's another alternative. We are pragmatists. And that's Stephen Breyer. I gave you Elena Kagan. That's Stephen Breyer. And we should try to basically just make sense of the world. And originalism is outdated in various ways it's horse and buggy so we should actually and making sense doesn't invariably require just fidelity to precedent but um but we're commonsensical and there are people on the left who think that stephen breyer there are people on the right who thought that let's say richard posner um he was a little bit more enthusiastic about judges just making good policy.

Breyer would be more modest and quiet about that. But there's a precedent alternative. There's the, they call themselves pragmatists or prudentialists. Then there's the full-throated, just progressive alternative, which is just onward and upward progress. Let's just try to have the Constitution live always, you know, better than it was before. I'm thinking, oh, when you move away from what the Constitution actually says, you know, it could be progress. It could be regressive. You could evolve. There's devolution as well as evolution. That's actually, you know,

if it says certain things that stick with what it really says, because I, especially on a conservative court, I don't want them to actually just do what they think counts as progress, because that might not be what I think counts as progress. Maybe Sonia Sotomayor is more in a full-throated progressive tradition, so I've given you three avatars on the Supreme Court on the left, progress, prudence, practicality, pragmatism, or precedent. Those are three alternatives. And that's on the court, which is a little bit more sober. The academy, it's a little less sober sometimes.

And so some of them, I'm being honest, where the students are, where many of my colleagues are, maybe just sort of far left and just saying whatever the left believes, let's read that into the Constitution. And the problem with that is, well, good luck with that. We don't control the court. And if it's just, oh, whatever you think that's good, that's constitutional, I'm not sure I want to, I don't want Samuel Alito to think that way. And maybe I shouldn't be so informal, but he is my friend. I try to be friends with all the justices and understand where they're coming from. And so Justice Samuel Alito. So that's a long, long answer, Sarah. But I hope we touched all the points, substantive due process, liberal originalism, where the academy is today and who are the other liberal originalists and what the alternatives are. So, Sarah, I mean, Professor, I one thing that was fantastic when I was in law school, when I was talking to some of the more progressive

professors, here is how they would connect the text to sort of their more progressive philosophy. And it was something along the lines of this, read the Constitution less as a code of laws and more as a mission statement. So that equal protection under the law is establishing a principle of equality. Congress will make no law regarding the freedom of speech, establishes a principle of freedom of speech. And that these principles of equality, of freedom of speech, of due process, etc, they're going to expand as our understanding of sort of human freedom and equality expands and understands. And that's how it was. That's the 30-year-old explanation to me. And I went to law school at about the same time, and I'll give them what you

just said, and names. I've named names. I've named Sotomayor and Kagan and Breyer and Alito. So the name, most of, I mean, John Hart Ely and Walter Dellinger and Steve Calabresi, the name that you're channeling is Dworkin. Ronald Dworkin was among the most influential constitutionalists of his generation. And he read the Constitution at a very high level of generality. He spent half his time, he was trained at Harvard Law School, began teaching early on at Yale Law School, then spent most of his career at NYU Law School and at Oxford, where he was a very distinguished jurisprudential scholar,

legal philosophy scholar. And he basically thought the Constitution was just applied philosophy and political philosophy of morality and doing good things. My critique, he's a very serious person, and there was a time when he was where it was at, and the Supreme Court was citing him. William Brennan, he was the big thinker. And I'm going to now give you my critique. Yes, I think you've correctly described what, and he had many disciples in

law school, and Larry Tribe, who was epic at Harvard Law School, is much more case-oriented than Dworkin, but they were all influenced by Dworkin. Tribe was more of a doctrinalist, you see. But reading the Constitution at a high level of generality, big picture, it's about liberty. It's about equality. And my critique is, yeah, when you're up there in the Concord

flying at 40,000 feet, sipping your elitist martini, you know, England, America, it all looks like pretty much the same to you. But in fact, England doesn't have a written constitution, and we do, and we have a separation of power system and not a parliamentary system, and we're bicameral, and they're not, and we're deeply federal, and they're not, and a lot of the Constitution isn't about just high-level concepts of liberty and equality. It's about the presentment clause and recess appointments and all sorts of technical issues, and you need to know the words

backwards and forwards and sideways, and Dworkin didn't because he actually didn't care that much about the wisdom, really, of the founders. He thought it was the wisdom of the philosophers. And I think, in general, first of all, that's not what the Constitution says. Now, this is circular. Oh, you know, but he purports to be reading it. And I said, well, if you're going to read it, how about reading it carefully and closely? Because you don't have the courage, quite,

of your convictions to say, we don't have to read it all. And judges take oaths to the Constitution, which is a written thing, you see. And so do presidents and everyone else. So if you're going to read it, read it really carefully. It doesn't just say equal protection. Okay. For example, does that clause, if you read it, is that clause about voting? And everyone in the world thinks it is, but Akhil Amar actually says it's not because it's actually about persons, not citizens. And that would be persons as distinct from citizens, that is aliens.

That would be a really weird way of talking about voting rights, to have it in a clause that's actually about aliens. And if equal protection was about voting rights, then why did you need the fifth? It would surely be about racial equality and voting for African Americans. Then why did you need the 15th Amendment? And by the way, since women,

last time I checked, are persons too, why did you need the 19th Amendment? Because if it's about equality, and the Supreme Court of the United States unanimously in the case called Minor v. Happersett actually said, actually, Section 1 of the 14th Amendment isn't about voting rights. The word right to vote appeared in Section 2,

but the 15th Amendment is going to be about that in the 19th. So you see, I'm reading things in a much more fine-grained way than Ronald Dworkin. And Dworkinism lived in the dissent in Dobbs, because they just kept talking about the liberty, the concept of liberty. Actually, it doesn't say that. It says life, liberty, or property can't be deprived without due process of law. No more guarantees liberty as such than property, and both of them can be restricted if there's proper procedures. And Sarah earlier mentioned this phrase, substantive due process, but I would say it's

procedural due process, proper legal procedures. So when you read the clause, it's actually, just read it with care, and don't pop up the level of generality. It's not quite a liberty clause or a property clause for that matter. Because in the Lochner era, the courts just read property rights very expansively and struck down all sorts of laws that limited property, or if you prefer, liberty of contract. And they just didn't like certain restrictions, so they struck them down, and that was Lochner. And I think Roe has the same flaws, and Dred Scott had the same flaws. And by the way, well, what liberty do you mean?

Reproductive liberty, okay. What about contractual liberty? What about liberty to gamble? What about liberty to make prostitution contracts? Or the liberty to blow coke up my nose and to buy it from you or sell it to you? What about the liberty to be a sweatshop owner and to drive hard bargains, paying sub-minimum wages and insisting on sweatshop hours? What about the liberty to drive without a driver's license or without automobile insurance or 80 miles an hour, wherever, whenever, however,

what liberty do you meet? So I'm critiquing Dworkin. Dworkin basically said, oh, Kiel, don't worry about that. We philosophers who have been trained at Oxford and Harvard and Yale are going to actually figure out how it all works. And I say, well, I really respect you a lot, but truthfully, I'll take my chance. And this is what I actually believe. The American people, at our best, and I say our, and they're not my forebears, but at our best, have actually been wiser

than the handful of elitist philosophers. So that's in part why I'm an originalist. Not just because that's what I take, you know, if you're a judge or a government official, you take your oath to, but it's because there actually is wisdom there as well. And even if I'm not in the United States and I'm not bound by it, even if I'm in France or India, I might want to study with real care, Professor Dworkin, with all due respect, the text, history, and structure of this Constitution, because there's a lot of wisdom in it that we can learn from.

But we won't if we pump up the level of generality and just use it as an excuse to do what we think is the good and right and virtuous thing. But you've described absolutely correctly what you and i i think we're both taught in law school right yeah yeah uh listeners if you don't understand why professor amar is my great intellectual crush um that that i don't know what else i can give you this is it this is this is amazing uh and i loved your explanation of really on the left this idea

of the platonic guardians. And fascinatingly, of course, we are starting to see our own version of that on the right. The common good constitutionalism, I think, is exactly Dworkianism for the right. And it's terrifying because it's- Plus Posner. That's right. It's just who gets to decide. We want power. We want to decide what is that common good. We have power. We want to decide what is that common good. We have power. We want to decide what is that liberty interest. What is the progress that we want to make? So Adrian is a friend and I really respect him and I'm not on board with his project.

And especially now, it would be a mistake for those of us who are liberals to say, oh, yes, Justice Alito, channel your inner, you know, Vermeule, because you were taught legal realism good and hard at Yale Law School, just as I was. So just do what you think is good and proper. I love him, but his vision of just what's good and proper might not be the same as mine. So we have much more in common, and we're going to converge a lot more if we say, well, let's look at the text really carefully. Let's examine the history really carefully. See the structure of the Constitution. See how it all fits together.

And we won't always agree. You know, my friend Steve Calabresi and I, but we'll actually be in a common American legal conversation that has and will be in the same tradition, not just as Antonin Scalia, whom you respect and Bork, whom you particularly respect, or me, Sam Lito, but also Hugo Black, who's one of my heroes, but also Abraham freaking Lincoln. And that's a pretty good group to be in. I like that group. But originalism depends on viewing the Constitution as a contract, basically. That we have this ongoing contract with our government.

Here are the terms of the contract. And the immediate pushback to that that you will hear from non-lawyers and lawyers alike is, I never signed that contract. My people were enslaved at the time of that contract. Or my people came as immigrants after that contract. My people were enslaved at the time of that contract, or my people came as immigrants after that contract. They were discriminated against. The contract has failed in any number of ways to protect what it said it was going to protect in the Declaration of Independence, for instance. I think you have this beautiful view of the Constitution and that contract, not about the founders, that it's not that we made a contract

with James Madison, but that in fact the ratifiers are the people we need to look to in originalism and why, well, really you and I in particular, Professor Amar, even though our people weren't here, why we are still the heirs to that contract and why that is good, why we are still part of that American experiment. And not just the ratifiers, Sarah, but the amenders, because the founders were deeply imperfect. There are sins of the founders that we have to take seriously, like slavery and other missions, and the amendments by the people, not by the judges, you see,

are a making of amends for some of the sins of the past. So I've already mentioned the Reconstruction Amendment, the 14th Amendment, and its key language about equal protection but also about privileges and immunities of citizens. And I briefly alluded to the 15th Amendment, which is about political, equal political rights, especially for African Americans. And I mentioned the 19th Amendment, which is about a doubling of the franchise, woman suffrage.

So if we take the Constitution seriously, we have to take the whole Constitution seriously. And one of the things that tends to distinguish between liberal originalists like yours truly and certain conservative originalists like, let's say, the late Antonin Scalia is some of them didn't take as seriously the amendments and how they changed things about the founding. But since you mentioned contract, I shouldn't mention another person who is on my side. So I mentioned Abraham Lincoln, but you mentioned contract. What we call the I have a dream speech is actually when you listen to the whole thing, it has some earlier memes and metaphors and tropes, and they're in part, we were promised certain things. There's this promissory note, and we're here to actually claim, you know, the things that were actually promised. Somewhere I read about, you know, equality.

And Martin King is channeling the Reconstruction Amendments and not just the founding, but he's laying claim to the contract, to the promises. And when he talks about the arc of history bending toward justice, he might be talking about judges doing good things, but the arc of the amendments have bent toward justice. Almost all the amendments have added to liberty and equality. That's a really interesting, except prohibition, which failed. It's a very interesting point about the amendments have added to liberty and equality. That's a really interesting, except prohibition, which failed. It's a very interesting point about the amendments. So one thing, yes, Sarah, a lot of people,

because if you just say contract, fine, but it's not just a contract, it's a big social compact at the founding in which fewer people were allowed to vote on how they and their posterity would be governed than had ever been allowed to vote on anything before in human history. So that's pretty epic. From our perspective, it's very exclusionary. What about women? What about slaves and the like? But from the point of view of 1787, looking backwards, this was more democratic than ever before. So that's one thing. backwards, this was more democratic than ever before. So that's one thing. Second thing,

the amendments have actually added to that liberty and equality and widened this idea of we the people, ending slavery, promising equal civil rights to all, black or white, male or female, Jew or Gentile, equal political rights to blacks and women with the 15th and 19th amendment, getting rid of poll tax disfranchisement. So that's epic. People have expanded and not because a judge is doing great things, but because we the people through the amendment process have kept this contract, have updated it because you can make revisions to the contract. Final point, because Elena would say, oh, Elena Kagan, I don't mean to be a flip here.

They are people I really like and respect, and I happen to have known her even before she was on the court, so she's also a friend. But I, with respect, disagree with her vision, which privileges precedent and judges. So here's my claim. My claim is philosophers are not as wise as they think they are and there's more wisdom

in the people as channeled through text that lots of people had to agree upon at the founding and reconstruction in the early 20th century with women's suffrage. And in my lifetime, when we got rid of Poltex disenfranchisement, led by people like Martin King. So there's more wisdom in what we the people have done and is epic moments of our history than is conventionally acknowledged. There's less wisdom, with all due respect, Professor Dworkin, he's now passed on, than you philosophers, you're less wise than you think you are. And Justice Kagan, yes, there's wisdom and precedent,

and you can learn from judges. But in fact, if you look at American history, that people have outperformed the judges. Yes, the Constitution is pro-slavery in all sorts of ways in the Three-Fifths Clause. Oh, but Dred Scott was so much worse than what the Constitution actually said. The Constitution was pro-slavery. Dred Scott was ridiculously pro-slavery and made stuff up. And the people who criticized it were originalists who said, you're making stuff up. Like Abe Lincoln, he actually said, this is, quote, an astonisher in legal history. I love that. He coined the word, and he's so cool.

You know, my crush is, you know, he's my crush. But he's using originalism to say, you made that up. The Constitution actually does promise. This is the contract, the promissory note that Martin King, it promises liberty and equality for African Americans in the Reconstruction Amendments. What do we get instead? 50 years of protecting corporations and property during the so-called Lochner era and not protecting black equality. We get Plessy versus Ferguson.

And that's where Hugo Black comes along and says, hey, read the thing. It's actually not quite about corporate freedom. It's about black liberty and equality and fundamental rights. So my claim is, okay, yes, history is deeply compromised. You know, we are all born in a fallen world. I have three kids in college now, my wife and I, and they're always kind of, you know, their generation complaining about, you know, what, you know, the world that we made.

And I'm thinking like, yeah, we inherited lots of injustice as well. Our obligation is to try to make the world better. We all are born in a fallen world. Our obligation is to make it better. The amendments have made it better. That's not true of the cases. The cases have waxed and waned. There have been eras that were better than their predecessors

and worse. The amendments have made it better. So, yes, okay, slavery, yes, and patriarchy, yes, that's all true of the founding. That's also true of the cases. Right. So, but our job is to make the world better, and there's certain things we can do through proper interpretation

and other things that we need to do through constitutional amendments. Here's an amendment that I'm absolutely for. I wonder why my fellow Democrats aren't just championing this every day. ERA, that was a good idea. Let's put it expressed. Now, I actually think it's already in there if you look at the 14th Amendment and the 19th Amendment and add them together. But I'd love it if we crusaded. And then, if we did ERA, wouldn't we want later generations to take seriously what we actually did, what we actually said we were trying to do, and take that contract seriously, which is a contract that would involve lots of people.

In my lifetime, we got rid of poll tax disfranchisement, and we treated D.C. more fairly in the constitutional system. We let 18, 19, and 20-year-olds vote, because if you were old enough to fight and die in Vietnam, you're old enough to vote on whether we should be in that war. Those were epic achievements of the people in my generation. So it's not just the founding contract. It's a social contract. It's intergenerational. And one difference, you asked me this at the very beginning, what's distinctively liberal about your brand of originalism

is I tend to emphasize the amendments more than, let's say, Antonin Scalia did. Here come the carrots making their way upfield, followed by the whole wheat bread, over to the two dozen eggs. Sir, do you do this every time? Sorry, I've been a little excited ever since I got this BMO Toronto FC Cashback Mastercard. Oh, and the broccoli boots it over the line. What a goal!

How would you like to pay, sir? Credit, please. Make every purchase a win with the BMO Toronto FC Cashback MasterCard with up to 5% cashback on your purchases in your first three months. Terms and conditions apply. So we've talked at a high level. Let's get a little bit more narrow in some of our remaining time. So I promise you now I'm not necessarily, I've been kind of traveling in the last couple of weeks and I've been asked a ton about Dobbs. I've been kind of traveling in the last couple of weeks,

and I've been asked a ton about Dobbs. I've been asked a ton about New York State Rifle and Pistol Association. But I've also been asked about something you just wrote a Law Review article about, independent state legislatures, the independent state legislature doctrine or idea. So two things, from your originalist perspective, first describe what it is when someone says independent state legislatures, what is the argument? And you're not, um, I guess, uh, appropriate way of saying it was, you're not that impressed by it. Wait, I just want to be clear. Like if you think that this, you know, he sounds like a mild mannered professor, very thoughtful, happy to steel man the other side.

We're going to put this law review article in the show notes. You wrote it with your brother. This doesn't read like you sound now. At one point, you say that Bush v. Gore should rot in hell. And that it was a loud judicial fart that we all pretended politely not to smell or hear. Yes. This is not a mild-mannered law review article.

You are fired up. You are snarky. You are partisan at points. This is a whole other side. Your written word. Tell us everything. So I hope actually it wasn't partisan, but it is fierce. And there's a difference between them.

And I'm glad that you mentioned my kid brother. He's my co-author. He's the lead author on this piece. He's the dean of the University of Illinois College of Law. And if I'm correct, by the way, he starts at Yale Law School when you join the faculty at Yale Law School? My first year as a professor, I'm 26 and he's joining the law school as a student. So we overlapped, you know, he as a

student, I as a professor, I was never, you know, it was never in my class, but interesting sibling relationship that has to be through the years, but that could be a different podcast. And I'm glad you mentioned him because I love him and I'm really proud of him. And I want him to hear this podcast and hear that because I've been harder on him than anyone. I'm hard on myself. I'm hard on my friends. And that's what you hear in that piece because I am hard on my friends and my family members. So he graduated from Yale Law School. He clerked for the Supreme Court, which I did not.

He clerked for Harry Blackmun, the author of Roe versus Wade, he is now the Dean of a preeminent law school, University of Illinois College of Law in Urbana-Champaign, the most prominent South Asian Dean in the American Academy today, he was on short list for various positions in the judiciary. I think if there were South Asian on one of the next justices is going to probably just predictably be an Asian of some sort. That's like the next demographic group. And if it were five years ago, when you asked me to name the five or six most preeminent Asian Americans in the law, I would say Neil Katyal and Sri Srinivasan and Vik Amar and Jim Ho and Amul Thapar and maybe three

other people or something, Goodwin Liu, but he's in that category. And he's younger than I am, and his name alphabetically comes after me and he's the lead author in this piece. I'm not throwing him under the bus because the tone is actually mine but I want to give him all props. And so, yes, I think there's a thing called law. And I think some things are close questions

and some things aren't. And if it's not close, I'm going to actually say it's not close. And I hope I have credibility because I don't always say that about every conservative outcome. I think Roe was wrongly decided. I think Dobbs, whatever you say about the opinion, and you can quibble here or there, the result in Dobbs, in my view, is correct. Mississippi's law was constitutional because on originalist grounds, the framers actually

didn't prohibit anti-abortion laws in general, and Mississippi was not an outlier statute. There are unenumerated rights, privileges, immunities. We find them by actually looking at actual state practice. Mississippi wasn't an outlier. So as a matter of originalism, the framers of the 14th Amendment didn't commit themselves to an anti-abortion, to a strong abortion rights regime, and it's a matter of unenumerated

rights because there are unenumerated rights. We actually look to state practice and we say outliers are problematic, but the Mississippi law wasn't an outlier. I'm pro-choice personally, but anti-Roe. I'm anti-gun personally. I don't like the idea that when I next go to Manhattan, I'm there all the time, you know, people around me are going to be packing heat.

That makes me very nervous. So personally, I'm liberal. I don't love guns everywhere. But I think Bruin was rightly decided because the framers of the 14th Amendment believed in the blacks had rights to have guns for self-protection, and you couldn't count on the local government to protect you. And by the way, in New York, it's a kind of

discretionary regime and who's going to get the gun permits? Oh, you know, rich white people and who's not? Oh, black underclass. Okay. And New York actually is an outlier. Only six states have this highly discretionary regime. And that's what Brett Kavanaugh mentions four times in three pages. Okay, so anti-gun personally, but I think Bruin is rightly decided. A pro-choice personally, I think Dobbs is rightly decided. So now I have credibility with my conservative friends to say, okay, but you lose me completely on ISL. We're playing by the same ground rules. And if we're going to play by the ground rules of text, history, and structure,

here's what I'm going to say. Bush versus Gore was a pile of poo. It was every bit as embarrassing and egregiously wrong as Roe versus Wade and Lochner versus New York and Dred Scott. And I've always believed that. I said that the week that the opinion came down in the Los Angeles Times. And 10 years later, I was invited to Florida to give a fancy pants lecture because I've never gotten over it. So I ranted and raved about Bush versus Gore. And then I came back to it with this piece with Vic, but here's why, because I think there's law. And I think most of the time, the justices actually are falling in love. I might disagree with them, but I actually think these are close calls and people can

see the world in different ways. I don't think that about Bush versus Gore, which I thought was also very partisan. It's not just that, so it was wrong. I thought it never, you could disagree with me, but oh, friends are honest with friends. This is a piece in which I say, if you pull another, and then I'll tell you what ISL is, another Bush versus Gore, don't count on your friend Akhil Amar to try to explain to the left why actually what you're doing is okay the way he does in Bruin and he does in Dobbs. Oh, I defended the Carson case too. I think those were rightly decided. I'm with the conservatives. I'm with the conservatives on

Citizens United because I actually believe in free speech and on the facts of Citizens United. It's actually an easy case. I'm with Mitch freaking McConnell, and I'm, you see, a name of a Klobuchar Democrat, but not on this. So, David, what's this independent state legislature theory all about? In a nutshell, the idea, which actually is plausible if you just look at the text and know nothing else, and you spend five minutes. But I spent a lifetime studying the thing, and it turns out to be wrong. So I have to be clear with my friends who aren't on the court, who aren't actually historians

and haven't done the work. This might seem OK, my friends in the Federalist Society. I promise you I've done the work and I'm a credible person. And this is a huge mistake. And if you go down this road where you're much closer to John Eastman and Sidney Powell than you would ever want to be. In a nutshell, the idea is the Constitution in a couple of places says state legislatures get to have a key role

in deciding how presidential electors are chosen under Article II and how members of Congress are to be elected under Article 1. And they say, well, it says state legislature. And from that, they basically say the state legislatures can't be limited and aren't limited by their state constitutions, which might say, oh, you can do this and you can't do that they're not limited by state courts construing their state constitutions they the state legislatures kind of float freely independently outside of the legal context in which they are nestled which i would say are state constitutions as enforced and understood by state supreme courts and in a nutshell what are we talking about? Here's what we're talking about. Can a state tomorrow

say, elections are rigged, illegal people are voting, that's what they're going to say, and so we, the legislature, are going to pick the electors from Pennsylvania. We're not going to let the voters pick. We, the legislature, and by the way,

there are going to be seven states where this is an issue. Here are the seven, or eight. There are states that are to be seven states where this is an issue. Here are the seven or eight. There are states that are presidentially blue, but state legislatively red because of urban clustering and gerrymandering. These are the states that voted for Biden but have Republican legislatures. Plus or minus, Georgia, Arizona, Wisconsin, Michigan, Pennsylvania, Nevada, New Hampshire, maybe Virginia. Those are the states we're talking about. And by the way, there are no states on the other side that voted for Trump, presidentially read, that have blue state legislatures.

So if you're team red, you're going to say, oh, we do better with state legislatures. We'd rather have them actually pick the electors than the voters who are fickle and might vote for a Democrat from time to time or even reliably. So suppose the state legislature in Pennsylvania, Michigan, Arizona, Georgia says, there's all this fraud going on. We're going to pick the legislature. Now, in fact, at the founding, state legislatures in a whole bunch of states did pick electors. And if there were nothing else, they could do it. Now, in fact, at the founding, state legislatures in a whole bunch of states did pick electors. And if there were nothing else, they could do it. But, but, but, in many states, the state constitution is best read to say no.

In Colorado, you know, in Pennsylvania, the voters get to pick. And the independent state legislature, Dr. says, screw the state constitution. Who cares what the state Supreme Court thinks? We're the independent state legislature because it says screw the state constitution. Who cares what the state Supreme Court thinks? We're the independent state legislature because it says that in the U.S. Constitution. And what we try to show, so one thing they're going to do maybe is to say, we get to pick the presidential electors regardless of what the state constitution says. Or, okay, we don't get to pick them, but we will, if it's a close election, we'll decide who really won rather than the state judiciary,

which the state constitution says is the state judiciary that decides close elections. Or we're going to jump in after the election, and if it's close and they're still counting and recounting, we're going to decide who we really want to have won. Now we're getting closer to Don Eastman, Ted Cruz, kinds of stuff. Or we're going to say before the election, even if you win the state, you don't win all the electoral votes. You don't even win most of the electoral votes. You win just a few of the electoral votes, even if you won the state statewide, by analogy to what Maine and Nebraska does. Those are four different versions of what state legislatures in red states, red state legislatures, but who vote blue blue presidentially are going to want to do

and they're going to say oh we can do it because it says legislation the constitution and three justices thought that in bush versus gore and here enter akil and vic we say that's completely unconstitutional once you understand the founding system and originalism and it's inconsistent with the modern precedents and here are a whole bunch of them um joined by um john roberts and in fact all the conservatives oh and bush versus gore that you're building on i love you clarence thomas you know i do you you know how much my no this is true i i quite adore him and so do members of my family. I won't go into all the details, but, and I know you were in Bush versus, and I'm not calling your motives into question, but oh, you made a mistake. You made a big mistake and I'm your friend and I'm going to say this was

a loud judicial fart. Do not double down on this. Your legacy will depend on your not doubling down on this, because your legacy actually rides in part with honest liberals who are willing to actually, when you get it right or even plausible, say, you know, they're not palms. Bush versus Gore was a uniquely bad decision alongside Roe, alongside Lochner and Dred Scott. There are not that many of them. But when I see it as a friend of the court, I'm going to call them out. And I want to get their attention on this. So yes, I did pump up the volume in that.

But I hope it was not partisan. Because if it was, I failed. I want to persuade my Republican friends that behind the veil of ignorance, they should agree with on this because we agree on original principles of constitutional interpretation. I want to ask one follow-up question looking more at the Electoral Count Act reforms that people are talking about because former Judge Ludig, to summarize his point, says, look, at the end of the day, the decider should be the federal judiciary. And you seem to say in this law review article that at the end of the day,

the decider should be Congress. Yes. That is quite different. So your audience at the beginning, oh, he's a mild mannered. No, he's an arrogant Ivy League professor. Which is it? Law is arrogant. Yeah. And logic is arrogant. And two contrary positions can't both be right. So if my position is right, then a contrary, we can both be wrong because one of us can be right for the wrong reason, but we can't both be right. So I love Judge Ludig, but he hasn't spent every day of the last 30 years just studying the Constitution and its history. and I have. And I have written eight books, and I'm going

to tap every ounce of authority that I may have acquired in the course of being a scholar and trying to be a fair one, be fair to conservatives when they have a good point to say, actually

the structure of the Constitution says basically that just as each house decides expressly under article 1 section 5 is the judge of contested elections the congress as a whole so the senate actually is in article 1 section 5 the judge of any contested senate election and the house is the judge of any contested Senate election. And the House is the judge of any contested House. That's Article 1, Section 5, the express language. Now, and Ronald Dworkin wouldn't even know that because he never read the Constitution.

No, but now you see why it matters. It's full of all sorts of, the word I'm looking for, law. So it doesn't say that in so many words in Article II, but it says the votes are counted in Congress. They say Congress is a democratically legitimated institution to count electoral votes and to decide, to judge a contest. I just made a structural argument. Here's a bigger structural argument. Look at the Constitution. to decide to judge a contest.

I just made a structural argument. Here's the bigger structural argument. Look at the Constitution. It's a democratic pyramid in which more democratic institutions basically support less democratic ones. Starts Article I, the preamble, they put it to a vote, an epic vote. More people got to vote on the Constitution than ever been allowed to vote on anything in human history. Wow. We the people do ordain and establish indeed. That's very democratic. Then Article I. Why is

Article I? Because it's the most democratic branch, and you get to vote for the House of Representatives, which you didn't do under the Articles of Confederation. Then the presidency, which is slightly less democratic because there may not be a popular vote, and then the judiciary, and democratic politicians are supposed to pick judges and judges are supposed to pick presidents. That's why Bush versus Gore is a disgrace. Judges weren't supposed to be involved and Mike Lutick was a judge and he doesn't always see that judges actually sometimes don't know their place. And I'm not a judge but I'm also not a

congressperson. I'm not in the executive branch. I'm outside of the whole thing, and I'm saying, no, you invert the democratic pyramid. Presidents are supposed to pick judges. Judges aren't supposed to pick presidents. That's a structural argument. Now I've made a textual analogy to each house judging the qualification of its members.

Now I'm going to tell you what the precedents are, because the precedent isn't Bush versus Gore because there were only three votes for that. It's not'm going to tell you what the precedents are. Because the precedent isn't Bush versus Gore because there were only three votes for that Bush versus Gore. It's not a good precedent. Here are the precedents. They're the precedents of contested presidential elections. The first one is 1800-1801. The Supreme Court didn't get involved.

It would have been preposterous for them to get involved. The next one was 1824-25. That was Andrew. The first one was Burr, Jefferson, Adams, John Adams. The second one is John Quincy Adams and Andrew Jackson. And that was contested. It was, you know, and Crawford was involved and Clay initially. And that wasn't decided by the Supreme Court.

And the next one is Hayes Tilden, 1876-77. The Supreme Court, as such, did not jump in. Some justices were invited in by members of Congress. So the structure of the Constitution says Congress is the democratic authority to decide this. Judges shouldn't be picking presidents. Presidents should be picking judges. The analogy to Article and Section 5, Congress decides contested elections.

The precedence of 1800, 1801, 1824, 25, 1876, 77. And what's the counter-precedent? Bush versus Gore. But Judge Lutie, with all due respect, and we're friends, Bush versus Gore was a disgrace. And I called it at the time, and I'm not changing my mind on that. And it matters whether a case is egregiously wrong. Because if if it is it should be overruled that's what Dobbs said about Roe you see that's what Lincoln said about Dred Scott so it actually matters so I the Electro Count Act is important and you know in reform

I think needs to be adopted but I respectfully disagree with my friend Mike Lutie, by the way, generally agrees with me, I think, and Vic about the ISL argument. But on that specific issue, we may just have to, you know, apart as friends. What a great ending to this conversation. Thank you so much for joining us, Professor Akhil Amar, host of the American Constitution podcast. A-M-A-R-I-C-A-N. America's Constitution.

America's Constitution. Thank you for that plug. And you guys are going to be on it? Yes. We'll continue this conversation. Yes, although I have to be honest, I mostly just want to hear you keep talking about it. But I have some follow-up questions that I want to talk about the future of contested elections and get into maybe some of the weeds on some of these cases that you mentioned just from 2020.

There's more law to discuss here, and we will do it on your podcast, I hope. And have me back, and I'll have you multiple times. It'll be great. This sounds amazing. Thank you so much. Thank you. We really appreciate it. And we'll take a quick break to hear from our sponsor today, Aura. Ready to win Mother's Day and cement your reputation as the best gift giver in the family? Give the moms in your life an Aura digital picture frame preloaded with decades of family photos. She'll love looking back on your childhood memories and seeing what you're up to today.

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