Abraham Lincoln, Originalist | Interview: Akhil Amar

Summary

Advisory Opinions – "Abraham Lincoln, Originalist" | Interview with Akhil Amar

Podcast by The Dispatch | Released: August 12, 2025

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Episode Overview

In this intellectually rich episode of Advisory Opinions, hosts Sarah Isger and David French welcome back renowned constitutional scholar Professor Akhil Reed Amar to discuss his much-anticipated new book, Born Equal: The Lincolnian Amendments, the second volume in his three-part narrative on American constitutional history. The conversation examines Abraham Lincoln's originalist vision, the critical role of the Declaration of Independence in constitutional interpretation, the evolution of equality in America, and the enduring struggle between founding principles and historical realities.

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Key Discussion Points & Insights

1. The Trilogy & National Narrative

• Amar explains that his three-volume series seeks to tell "the story of us," providing America with a coherent national narrative rooted in its founding texts and evolutionary amendments.
• Born Equal (Volume II) covers 1840–1920, tracing the path from entrenched slavery toward constitutional equality, culminating in the "Lincolnian Amendments" (13th, 14th, 15th, and 19th).
• Amar stresses America's lack of unifying characteristics (e.g., ethnicity, language, religion), highlighting that national identity is bound by shared history and central texts.

"The only thing that we have in common really are these central texts and the story, the history that unites them."
— Akhil Amar (07:22)

2. Originalism and the Founding Documents

• Sarah asks how originalists should think about the Declaration of Independence, the Constitution, and the post–Civil War amendments.
• Amar asserts that to be an originalist is to care about origins, and America's juridical birth is July 1776 (the Declaration), not 1787 (the Constitution). He sees Lincoln as a profound originalist, always looking back to foundational documents for meaning and legitimacy.

"Originalists are about our origins...our origins are in July 1776. That's where we begin. We Americans. That's where we are born."
— Akhil Amar (04:18)

• Lincoln’s reinterpretation of the Declaration, emphasizing “all men are created equal,” sets the foundation for the amendments and the ongoing quest for civil equality.

3. Competing Interpretations: North vs. South

• Amar highlights the different readings of the Declaration: the North’s focus on equality and abolition, the South’s on state sovereignty.
• Lincoln “wins” the interpretative battle, resulting in the adoption of the Reconstruction Amendments, which Amar dubs "the Lincolnian amendments."

“There’s a northern interpretation of the Declaration and a southern interpretation. And Lincoln’s wins.”
— Akhil Amar (13:38)

4. The Declaration’s Role in Legal Interpretation

• David asks about the persistent contradiction between the Declaration’s ideals and the reality of slavery, and its effect on America’s development.
• Amar lays out ten different readings of “all men are created equal,” noting how Lincoln’s own understanding evolved.
• He describes how free states, immediately after independence, began abolishing slavery, and the Declaration’s rhetoric animated both legal and political activism in the North.
• Amar details how the Declaration’s aspirational language was encoded into state constitutions and postwar amendments.

“Originalists can be liberals as well as conservatives, which is my view…Americans are originalist. They disagree about what the Constitution means, but they think it actually matters, and they think the Declaration matters.”
— Akhil Amar (23:34)

5. Modern Constitutional Debates & The Declaration

• Sarah draws a modern analogy by referencing Justice Scalia’s handling of prefatory clauses in Heller (Second Amendment), asking if the Declaration is just “the why,” not the legally operative “what.”
• Amar critiques Scalia for a shallow historical approach and insists that the Lincolnian amendments (especially the 14th) embed the Declaration’s ideals into the Constitution itself.
• He argues that originalism demands attention to historical contexts, especially regarding equality and rights derived from the 14th Amendment.

"Even if you thought [the Declaration]'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."
— Akhil Amar (29:14)

6. The Limits and Triumphs of Equality

• David probes the enduring failure of “birth equality,” given Jim Crow and segregation, despite the amendments.
• Amar concedes the “triumphalist tone” is complicated by failures but emphasizes that the enduring constitutional text (“equal protection”) became enforceable due to later originalists and social movements.

“Once it’s in the Constitution, it’s there, and we’re going to take it seriously...Originalism is a game that can be played by both.”
— Akhil Amar (39:15)

7. Revelations in Research – People & Principles

• Prompted by Sarah, Amar describes surprises in his research:
  • The outsized influence of Harriet Beecher Stowe and Uncle Tom’s Cabin in shaping public opinion and catalyzing abolition.
    • “[Stowe] is the first—she’s America’s first female superstar…she helps end slavery.” (42:45)
  • The profound originalism and influence of Lincoln, especially his Cooper’s Union speech.
  • The importance of “second founders”—notably Frederick Douglass, Elizabeth Cady Stanton, and how individuals of humble origin embodied American ideals.

8. Virtue, Principles, and Character in History

• David poses whether good principles or virtuous people are more essential for progress.
• Amar draws parallels to religious reform and emphasizes the need for both principles and people, plus institutions that can foster the right leaders at the right times.

“You need the principles and you need the people...and what’s amazing is...you need a system that creates them and that picks them.”
— Akhil Amar (51:14)

9. The Ongoing Project

• The episode closes with Sarah praising Amar’s body of work, and Amar confirming Volume III (Earth’s Best Hope) is planned for release in a few years, to complete the national story up to the present.

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Notable Quotes & Memorable Moments

| Timestamp | Speaker | Quote | |-----------|-----------------------|------------------------------------------------------------------------------------------------------------| | 04:18 | Akhil Amar | "Our origins are in July 1776. That's where we begin. We Americans. That's where we are born." | | 12:50 | Sarah Isger | “In Texas, Sarah, born and raised, and I have the Texas Declaration of Independence hanging in my basement…”| | 13:38 | Akhil Amar | "There’s a northern interpretation of the Declaration and a southern interpretation. And Lincoln’s wins." | | 15:14 | Akhil Amar | "There are ten different ways at least of understanding 'all men are created equal.' Lincoln...evolves..." | | 23:34 | Akhil Amar | "Originalists can be liberals as well as conservatives, which is my view." | | 29:14 | Akhil Amar | "It becomes embedded in the Constitution thanks to the 13th, 14th, 15th, and 19th amendments..." | | 42:45 | Akhil Amar | "She [Harriet Beecher Stowe] helps end slavery...she's huge." | | 51:14 | Akhil Amar | "You need the principles and you need the people...and what’s amazing is...you need a system that creates them and that picks them." | | 57:19 | Sarah Isger | "I'm constantly referencing [‘The Words That Made Us’]—it's a book you can chew on forever..." |

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Timestamps for Key Segments

• 02:20 – Amar introduces the national narrative and his trilogy concept
• 04:10 – Originalism and the relationship between the Declaration and the Constitution
• 13:00 – Northern vs. Southern interpretations of the Declaration
• 15:14 – Lincoln-Douglas debates and evolving meaning of “equality”
• 24:06 – Modern implications: Declaration's legal relevance and originalism today
• 35:58 – Jim Crow era and the unfinished project of constitutional equality
• 41:04 – Amar’s research surprises: Stowe, Douglass, Stanton, and the role of character
• 49:50 – The enduring interplay of principle, virtue, and the American experiment
• 56:44 – What’s next: Volume III on the 20th century and beyond

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Structure and Tone

The episode is engaging, deeply historical, and philosophical, blending narrative and legal analysis in Amar’s signature style—erudite but accessible, passionate, and reflective. Both hosts foster organic, curiosity-driven discussion, with humor and warmth.

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Final Takeaway

Born Equal sets out to restore a sense of national unity through a shared constitutional story, insisting that the ideals of the Declaration, as realized and re-embedded in the Constitution by Lincoln and others, remain not just America's foundation but its perpetual challenge. Amar's scholarship and approach offer an originalist vision expansive enough for all Americans, regardless of their political persuasion.

Transcript

[Professor Akhil Amar]

You ready i was born ready.

[Sarah Isger]

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 sixteenth the day before constitution day i think i've given you quite a few hints right back after this i want to talk to my fellow attorneys for a moment do you really want to spend time on the technical side of briefing blue booking tables appendix assembly bait stamping or would you rather focus on your argument type law can take your draft and exhibits and transform them into a court ready rule compliant e brief and appendix overnight they've helped prepare over ten thousand filings in courts across the country even scotus learn more at typelaw dot com and use referral code advisory to save ten percent on your first order that's typelaw dot com mama papa mi crese a un ridmo alarm amazon gasta.

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[Sarah Isger]

Professor akhil reid amar welcome back to the podcast thank.

[Professor Akhil Amar]

You for having me back you know.

[Sarah Isger]

We had you after your first of this series of books you're doing three.

[Professor Akhil Amar]

Books yes the fellowship of the ring the two towers and the return of the king and now i finished the.

[Sarah Isger]

Second one the words that made us is one of my favorite legal constitutional 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 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 pick 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 up over.

[David French]

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.

[Sarah Isger]

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 thirteenth fourteenth and fifteenth and you add the nineteenth 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 and our hopes and our dreams so.

[Professor Akhil Amar]

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 that was the us the united states we the people of the united states and our origins are in july seventeen seventy six that's where we begin we americans that's where we are born that book the words that made us starts actually in the gestation period it starts in seventeen sixty and we're not 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 nineteen fifty think the crown episode with elizabeth young elizabeth going going off to the commonwealth nations okay they're not that closely connected to each other but they have a common crown that's america in seventeen sixty it's not a juridical entity yet there's it's not an it and in july seventeen seventy six america juridically is born and the superstars out there will know it's actually july second seventeen seventy six 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 second 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 fourth 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 seventeen eighty seven to eighty nine 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 what we don't have in 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 that the germans have they've got goethe 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 seventeen seventy six 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 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 and sarah that's when you and i met actually on constitution day at brown last year september seventeenth of last year and we talked about volume one well now volume two is out and it starts where volume one ends born equal eighteen forty to nineteen twenty and we still got slavery in lots of places in eighteen forty 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 thirteenth amendment and promised civil equality black and white male and female in the fourteenth amendment and promised voting equality on grounds of race the fifteenth amendment and voting equality and all sorts of other forms of equality lesser included when it comes to sex by the nineteenth amendment and these four amendments thirteen fourteen fifteen and nineteen are what i call the lincolnian amendments they are embodying lincoln's vision which begins with his reinterpretation of seventeen seventy six 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 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 in volume two the two towers 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 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 okay but just remember he's saying this in gettysburg eighteen sixty three oh and the battle of gettysburg was july first second and third of eighteen sixty three they're fighting north and south about the meaning of america on the anniversary you see of america's birth and there and there's also a vicksburg going on but in eighteen sixty three in november he gives this speech and he says four score and seven years ago eighty seven years ago a score is twenty years so four score if you know french is eighty years eighty seven years ago so eighteen sixty three minus eighty seven oh he's talking about seventeen seventy six he's not talking about the constitution which is drafted in seventeen eighty seven discussed in seventeen eighty seven eighty eight kind of goes into operation in seventeen eighty nine oh he's not talking about the bill of rights he's talked about conceded in liberty but that's proposed in seventeen eighty nine and pending in seventeen ninety ratified in seventeen ninety one no he's not talking about seventeen eighty seven eighty eight eighty nine ninety ninety one he is talking about seventeen seventy six 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 an 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 seventeen excuse me in eighteen thirty six and they've got a different interpretation of free and independent states and state sovereignty and everything oh but they're building on the declaration of independence too it's a different interpretation now you spent some time.

[Sarah Isger]

In texas sarah born and raised and i have the texas declaration of independence hanging in my basement and do you.

[Professor Akhil Amar]

Know one of the guys who signs it his name is tj rusk you probably learned that in like texas history because they insist that you learn texas.

[Sarah Isger]

History in texas in fact the federal courthouse in houston is on is five one five rusk street but do you.

[Professor Akhil Amar]

Know what tj stands for he he's.

[Sarah Isger]

Tj rusk i'm going to guess thomas.

[Professor Akhil Amar]

Jefferson it's thomas jefferson rusk oh it is these guys are originals north is it's jefferson davis the vice president of the confederacy oh you know him as alexander stevens he's alexander h stephens oh he's alexander hamilton stevens oh man alexander.

[David French]

Hamilton spinning in his grave exactly there's.

[Professor Akhil Amar]

A northern interpretation of the declaration and a southern southern interpretation and lincoln's wins and we get victory at gettysburg and vicksburg on the anniversary of july second to fourth and eventually that's going to be a thirteenth fourteenth fifteenth and nineteenth 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.

[David French]

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're 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.

[Professor Akhil Amar]

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 ten different readings of just this one simple phrase all men are created equal there are ten different ways at least of understanding it lincoln over the course of his life evolves from reading seven to reading eight when you 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 eighteen fifty eight for forward in the wake of the dred scott decision in eighteen fifty seven where the supreme court basically said that fidi aren't persons oops i mean actually that blacks aren't citizens you see because if you don't like roe versus wade and 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 and lincoln here is like the critics of roe he's saying you just made that up and that's immoral 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's 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 the and by eighteen sixty here's what's amazing his opponents there are three different splinter parties that run against him 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 but 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 seventeen seventy six it's jefferson alongside adams and franklin and they're from the north and immediately after july seventeen seventy six they help 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 seventeen seventy six and the convention is presided over by ben franklin that's the massachusetts constitution of seventeen eighty that's massachusetts convention presided over by john adams they're riffing on the declaration and oh they're there in july seventeen seventy six alongside jefferson and immediately when america begins immediately slavery starts ending in the north pennsylvania adopts a statute that puts slavery on a path of gradual extinction in seventeen eighty the massachusetts constitution of seventeen eighty 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 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 enslaving other africans asia the native americans many of them the aztecs are slaveholders and and so were the the the 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 slave gets his freedom charlton heston it's in a funny thing happened on the way to the forum zero mostel character you know can i for his freedom so slavery exists everywhere it doesn't begin in sixteen nineteen 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 hat here's what the emerges and it's the americans who innovate it and it's in seventeen seventy five seventeen seventy six 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 seventeen seventy five 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 adamses not just john adams 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 sarex back to your original question what is the relationship between our constitutional system and these important words of the declaration of independence and if you're an originalist and he is a great originalist is lincoln and that's what i insist on at every chapter in every chapter of the book and truthfully i've gotten some already some very nice reviews but there's a thing called kirkus and it gave me a thing called a kirkus star in 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 originalist 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 originalists can be liberals as well as conservatives which is my view and and publishers weekly thought that was a weird idea an idiosyncratic idea and they thought it was wearisome in insisting on i would think no i'm this is my evidence i'm showing you the evidence for this this isn't weird this is how you prove a thesis.

[Sarah Isger]

When we return we're gonna fast forward to the present day and ask our liberal originalist what of it.

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[Professor Akhil Amar]

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 more because originalism is not a dictionary 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 fifty times by the in fifty different cases by the justices across the spectrum and that's more than anyone else under age seventy and heller is good but it's not great way before anton scalia came along with heller akhil 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 nineteen nineties 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 get killed in gun accidents 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 preservation 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 fourteenth amendment that's the stronger basis for a gun right than the original sec 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 fourteenth 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 us constitution it's not the prefatory 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 thirteenth fourteenth fifteenth and nineteenth 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 the 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 fourteenth 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 reinterprets it and as his generation encodes it embeds it in the fourteenth amendment you can't understand those words fully if you're an originalist because you got to take seriously the amendments too by understanding the background behind them which include these born free and equal clauses same word born in the state constitutions which go back to franklin and adams in july of seventeen seventy six and you need to read the civil rights act of eighteen sixty six 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 they're 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 fourteenth amendment and then 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 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 versus 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 akil again and again and again so of course akil is going to like those cases but i'm writing for the justices because they say they're originalists and they can't spend all their time doing historical research i can what i hope is that they'd read it and judge for 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.

[David French]

Generation so at the end of the two towers we are setting the stage for the 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 at the end of two towers one victory has been won but more victories or possibly defeats lay ahead the book ends around nineteen twenty there is 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.

[Professor Akhil Amar]

Amendments you know if sarah gets an a a plus for her first question you get one for that because this is audience this hasn't been you know 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 twenty 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 twentieth time because it's so astonishing and i'm even now pausing for the songs and the poems and you know the 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 say it's question eighteen out of twenty despite the book's often triumphalist tone because yay you know slavery abolished fourteenth amendment civil equality promised for blacks and whites men and women fifteenth amendment racial equality promised voting nineteenth amendment sex equality promise for voting triumphant here's actually then the skeptical question i put in the mouth of a reader despite the book's 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 nineteen twenty to the present moment yes it failed in some respects for several generations after eighteen seventy five still in the wake of ford's theater the birth equality idea did win inclusion in the text of the constitution itself and that text endured to make itself felt and obeyed after world war two thanks in no small part to originalism and originalists mid and late twentieth century originalists insisted that these abe lincoln inspired words meant what they said led by hugo black on the bench and martin luther king junior off the bench faithful twentieth century constitutionalists powerfully invoked the letter and spirit of abe lincoln's amendments on behalf of black amendments 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 we're all born equal citizens and i think the second amendment and the fourteenth 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.

[Sarah Isger]

Is all about when we come back i'm going to see if i can get professor amar's nine point seven levels of enthusiasm over ten.

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[David French]

At.

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[Sarah Isger]

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.

[Professor Akhil Amar]

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.

[Sarah Isger]

Narrative can i tell you something quickly about that because charles fried 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 road tripped 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 gonna talk about with this man you know for a whole drive and so if anyone knows like you get on ninety five 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 or 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 one hundred percent correct and it is on the mandatory reads for my children you know when they can.

[Professor Akhil Amar]

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 tells you all about documents it tells you about the state constitutions in seventeen seventy six 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 our 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 douglass elizabeth cady stanton and harriet beecher stowe those are my big four and i hadn't understood before how important harriet beecher 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 century and even if you think that she's not the literary equivalent of jane austen and i'm a huge jane austen fan and i talk about jane austen in the book and this is two hundred fifty of her earth and charles dickens even if you think that they're you know 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 and american political science she's huge and abigail is interesting but not everyone in america is talking about abigail adams and phillis wheatley was a very interesting poet but she doesn't make a splash in the moment and harry beecher 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 eliot and louisa may alcott uses an androgynous pseudonym and all the bronte sisters write under the last name bell male courier 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 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 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 here 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 say 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 douglas debase and he's not just a yokel you know he's not just you know a comic you know like garrison keiller 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 said here and names them thirty or so of the thirty nine 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 that's his ticket he becomes president because america's in a i hadn't understood just how originalist america was just how originalist abe lincoln is just how important harriet beecher stowe is and the stowe family hadn't at all understood that frederick douglass 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 tenth 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 beecher 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 four hundred thousand people sign an anti slavery petition and that's elizabeth cady stanton and harriet beecher 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 gonna 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 okay so sometimes maybe i'm 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.

[David French]

Raise when you talk about these you know what you might call second founders you know a second set of founders you really raise 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 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.

[Professor Akhil Amar]

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 death is all around him he is a funeral oration but he says this nation shall have a new birth of freedom that 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 son and nobody from nowhere you know from from nazareth galilee bethlehem you 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 that there are these ten commandments but there's an eleventh like unto them okay he's a reformist rabbi is jesus he's reinterpreting them and when your reinterpretation generates a new set of texts 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 thirteenth fourteenth fifteenth and nineteenth amendments 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 was you know born into nothing or alexander hamilton okay america helps produce these people and then pick america produces an abe lincoln 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 fifty five 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 the end of fifty five 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 for 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 us 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 deeply 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.

[Sarah Isger]

Lead faithfully the book is called born equal by professor akhil rita mar 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 worth telling people that but i have to say they are page turners for me it was like so much fun reading the first one just so listeners know 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 take a bath in all of it when it arrives on september sixteenth so when are we getting number three you.

[Professor Akhil Amar]

Know 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 gonna be writing and rewriting 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.

[Sarah Isger]

Em 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 and again having read the galley copy of this one i can't wait to get my hard copy in the mail september sixteenth born equal professor amar thank you for.

[Professor Akhil Amar]

Coming back thank you.