Dahlia Lithwick talks to First Amendment law professor Mary Anne Franks to explore the inversion of free speech in America this past week, and to trace the ways our assumptions about the First Amendment helped to tip us into this upside-down. Dr. Franks, author of Fearless Speech: Breaking Free from the First Amendment, explains the contradictions inherent in free-speech absolutism, the role of government in suppressing dissent, and the impact of media and entertainment on public discourse. What are we to make of a movement that screamed “jawboning” and “censorship” for a decade, but when handed power enthusiastically enacts actual governmental speech suppression and censorship? And what does the First Amendment mean if the powerful are consistently afforded maximum power in the “marketplace of ideas”?

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There is a “stuckness” to American political life right now, which has become a seemingly inexorable centrifuge of polarization, victimization and power grabbing. The constitution is brandished as sword and shield, and also as though it is the word of God. Americans, it seems, have lost the ability to think creatively and expansively about the constitution, and our ability to amend it. On this week’s Amicus, Dahlia Lithwick is in conversation with Jill Lepore, whose new book “We The People: A History of The U.S. The Constitution is a thorough and bold excavation of a central, but utterly neglected part of America’s constitutional scheme: the amendment process. In her book, and in this interview, Lepore challenges Americans to rekindle their constitutional imaginations and really think about what the act of mending, repairing, or amending has meant through the nation’s history, and could mean for a country on the brink. 

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In this episode of Amicus, Dahlia Lithwick discusses the recent deployment of the National Guard in Washington D.C. and its implications for checks and balances in the U.S. legal system. She is joined by Elizabeth “Liza” Goitein from the non-partisan Brennan Center’s Liberty and National Security Program, a leading expert on all things Posse Comitatus, the Insurrection Act, and the Pandora’s box of domestic military deployment in policing, and the legal frameworks governing it all. Together they explore the dangers of the administration’s current actions in the nation’s capital, and whether the president can act on his threats to expand them to cities that didn’t vote for him around the country. 

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Women were prosecuted for experiencing miscarriage or stillbirth even before the Supreme Court swept away the protections of Roe v. Wade. But these prosecutions have ramped up since, in both red and blue states. The stakes are ramping up too, with legislators introducing bills that would treat abortion as homicide, potentially subjecting patients to the death penalty. This week, Mark Joseph Stern talks with Karen Thompson, the legal director of Pregnancy Justice. They discuss what happens when the state decides a fetus, or even an embryo, has equal or greater rights than pregnant people. As fetal personhood legislation moves ahead in more and more red states, this concept is also seeping into the law in blue states. Women have been jailed because their pregnancies ended in a way the state disliked. Grandmothers have been prosecuted decades after pregnancy loss thanks to investigators using forensic genetic genealogy to hunt them down. As Thompson explains, a frightening frontier in the battle for bodily autonomy and reproductive rights is here, and it demands our attention.   

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Law firms, universities, and businesses are bending the knee to the Trump administration at the slightest threat. Amid this shocking cowardice, blue states have been a bastion of defiance against the president’s escalating power grabs—with attorneys general leading the way. Mark Joseph Stern talks with New Jersey Attorney General Matthew Platkin, who has been on the frontlines of this battle since Day One. 

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The official history of America’s founding is often told as a whites-only story, a heroic tale of wealthy white men forging a new nation—with no mention of the people they excluded, displaced, or oppressed. But who gets left out of the story that “originalists” like to tell about the law? This week Mark Joseph Stern talks with Maggie Blackhawk, professor at NYU School of Law, and Gregory Ablavsky, a professor at Stanford Law School, about Native nations at the time of the founding, some of which were very much on the scene as the Constitution was being debated and ratified. What did they think about it? And does asking that question obscure a much more complicated—but more accurate—examination of the founding?

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It’s easy to give up on the courts right now. SCOTUS is throwing down unreasoned decisions expanding Donald Trump’s authority, and Senate Republicans keep confirming the president’s cronies to lifetime judgeships, tarnishing the entire judiciary with their corruption.  But there are judges—courageous, hard-working men and women—who have chosen a different path and are fighting to protect democracy and restore our civil rights. In his new book, Better Judgment: How Three Judges Are Bringing Justice Back to the Courts (out Sept. 2), Reynolds Holding tells the story of three of these judges and how they are laying the groundwork for a post-Trump future in which the courts serve as guardians of liberty rather than instruments of autocracy. Holding speaks with co-host Mark Joseph Stern about these judges’ refusal to accept business as usual and vision of a court that truly delivers equal justice to all. 

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Civil rights are under attack. The Supreme Court seems to have its sights set on the Voting Rights Act. The Trump administration, meanwhile, is taking every issue to the court knowing that it will never have to face accountability there. And with states like Texas considering unpopular redistricting plans, the administration may never face it at the ballot box either.

Put more bluntly, many of our elected officials are operating with a perceived immunity from accountability of any sort. This week Dahlia spoke about the deleterious effects of these actions on voting rights with Maya Wiley, president and CEO of The Leadership Conference on Civil and Human Rights. They discuss the damage done to our civil rights by the current Department of Justice, and what we can learn about accountability from recent developments in the Jeffrey Epstein scandal. 

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Over the last six months, life has been upended for  millions of people in America as Stephen Miller's extreme immigration policies have been unleashed. And while the first weeks of the second Trump administration saw some genuine pushback from the Supreme  Court, six months in, that feint at checking and balancing has fallen away. On this week's Amicus podcast, Dahlia Lithwick welcomes Aaron Reichlin Melnick, Senior Fellow at the American Immigration Council. Reichlin Melnick last appeared on the show in the days after Trump's inauguration and the initial barrage of lawless Executive Orders targeting the immigration system and the millions caught in it. Half a year into Trump 2.0, and Stephen Miller's no-holds-barred anti-immigrant plan for America, what's stuck? What's accelerated? And in light of the new budget, what's next?

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