Access to Life- and Health-Preserving Care - A History and Tradition

Guest Blogger

Reva Siegel and Mary Ziegler 

We have just posted a revised draft of Comstockery, the first legal history of the Comstock Act since antiabortion lawyers have attempted to transform it into a de facto national ban on mailing abortion-related items. Our draft challenges the claim that the obscenity law is a plain-meaning, no-exceptions, national ban by tracing health-based access to reproductive care over the life of this statute. The history we excavate in fact bears on arguments in two abortion cases now before the Court —Food and Drug Administration v. Alliance for Hippocratic Medicine and Moyle v. United States and Idaho v. United States. As we discuss in the new draft and in forthcoming work, interpretation of the Comstock Act provides a window on this nation’s history and traditions, in ways that concern both abortion cases the Court will decide this term. 

Most prominently, claims on Comstock have been raised in Alliance for Hippocratic Medicine. In oral argument most of the justices seemed convinced that the plaintiffs lacked standing to challenge the FDA’s approval of mifepristone, a drug used in more than half of all abortions. But Justices Thomas and Alito asked a series of questions about plaintiff’s argument that the Comstock Act operates as a de facto ban on mailing abortion-related items. Comstock revivalists argue that the remaining text referring to “producing abortion” unambiguously covers all abortion. At oral argument, Justices Thomas and Alito seemed open to this interpretation of the statute. 

Comstock’s history also speaks to Moyle and Idaho, Supreme Court cases that address whether the federal Emergency Treatment and Labor Act preempts Idaho’s Defense of Life Act. Idaho and its amici have increasingly stressed constitutional values in the background of this statutory case. Idaho, for example, contends that the United States’ interpretation of EMTALA is irreconcilable with “the Spending Clause and the Tenth Amendment's promise of dual sovereignty.” Amici, pointing to language in EMTLA referring to “the unborn child,” invoke constitutional questions about fetal personhood under the Fourteenth Amendment. Justices asked questions about both these topics, so that during oral argument it appeared that there were constitutional considerations only on one side of the debate. 

But Comstock’s history suggests that there are countervailing constitutional considerations. Our history shows that concerns with emergency care do appear in the text of the Comstock Act as enacted and amended, even if revivalists ignore them. We demonstrate that the statute’s original language discussing the mailing of items for “procuring of abortion” referred to a crime requiring a proof a termination performed for unlawful purposes, and was traditionally understood to exclude a physician’s attempts to save a pregnant woman’s life. There is more. Judicial interpretation of the Comstock Act in the years immediately following enactment interpreted its ban on mailing obscenity in ways that consistently shielded the doctor-patient relationship. Even judges embracing the Victorian interpretation of the obscenity statute assumed that the Comstock Act could not be enforced against physicians and patients communicating with one another about questions related to life and health. In both the context of Comstock and state abortion bans, physician discretion appears to have played a critical role in determining what qualified as a health justification for reproductive health care. 

By the early twentieth century, demand for condoms seems to have destabilized physician discretion as a constraint for health-based access under the Comstock Act. The spread of over-the-counter access to these contraceptives thus reflected both intense concern about venereal disease and the growing expectation that men could express themselves sexually without other men’s permission. “Health” and “hygiene” also became euphemisms for access to birth control and even abortifacient drugs for women. Decades of popular resistance to maximalist interpretations of the obscenity law—which its critics dubbed “Comstockery”—led to judicial decisions in the 1930s freeing interpretation of the statute of Victorian views that all sex is obscene and recognizing that an obscenity law did not criminalize healthcare. These decisions recognized that there were legitimate purposes for mailing articles for contraception and abortion and communications concerning either one—not only among doctors and between doctors and their patients—but as the condom example first established, amongst a wide swath of the American public, including intermediaries and interested third parties. We read these statutory cases as expressing shifting understandings of the First and Fourteenth Amendments that the Supreme Court would begin to recognize several decades later. 

This Ngram of “Comstockery” shows how public debate informed judges’ understanding of the text of the statute and of the Constitution:

Struggle over the Comstock Act thus provides a window on history and traditions that the Roberts Court deems central to the Constitution’s interpretation today. The obscenity statute’s enforcement and interpretation over a 150-year span reveals the kind of deeply rooted national tradition of which Dobbs spoke, even if Dobbs never addressed the Comstock Act or concerns about criminalizing life- or health-preserving care. As importantly, the wide variety of evidence the article surveys also supports new methods of ascertaining the nation’s history and traditions. We demonstrate how shifts in case law interpreting the Comstock Act responded to the arguments of Americans who otherwise lacked authority to make law—and in the process, show that statutes are not the only or best evidence of the nation’s history and traditions—and may even provide a misleading basis on which to draw inferences about those traditions for constitutional purposes today. While the justices presiding in the EMTALA cases seemed attuned to constitutional considerations of federalism or fetal personhood, they seemed blind to the potential constitutional ramifications of forcing pregnant women to be airlifted to hospitals in neighboring states for life-preserving care.

Although this post has focused on developments within the Court, debate over the Comstock Act has unfolded in other democratic constitutional arenas. Since antiabortion groups began promoting an interpretation of the law as a de facto national ban on abortion, former officials in the Trump Administration, many with ongoing ties to the former president, have promised that in a second Trump term, the Department of Justice would enforce the Comstock Act at least against abortion providers and drug manufacturers who mail mifepristone. Trump has embraced the argument that abortion is completely up to the states, and yet despite persistent questioning from the press has refused to clarify his position on whether the Comstock Act is a national ban—suggesting he or his surrogates are still in fact planning to enforce it as one.

Reva Siegel is the Nicholas deB. Katzenbach Professor of Law at Yale Law School. You can reach her by e-mail at reva.siegel@yale.edu.

Mary Ziegler is Martin Luther King Jr. Professor of Law at the University of California, Davis School of Law. You can reach her by e-mail at mziegler@ucdavis.edu.

A Hidden Subtext of the Gettysburg Address?

Gerard N. Magliocca

I've been doing some research on the history of the draft and came across something interesting. On November 9, 1863, the Pennsylvania Supreme Court issued a 3-2 decision (Kneedler v. Lane) holding the federal military draft unconstitutional. Ten days later, Lincoln gave the Gettysburg Address.

Reading the Address with this sequence of events in mind, the speech looks like a rebuke of the decision. Could that have been one of Lincoln's goals? Did anyone at the time pick up on this? I don't know, but I'm going to try to find out.

The Constitution of the War on Black People

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Paul Butler

Like most users of illegal drugs, I have never been caught.  I have lots of company, David Pozen reminds me, in The Constitution of the War on Drugs, his prodigiously researched take down of said war but not said constitution.  He references a 2007 National Survey on Drug Use and Health that revealed that more than 100 million Americans had used marijuana (during a time when it was illegal in all US jurisdictions), 36 million had tried cocaine and 34 million hallucinogens like LSD and Ecstasy (p. 151-152).  These are my peeps, the great majority of us gloriously unpunished for our criminal transgressions.  In that sense, the phrase “war on drugs” suffers from the same imprecision as the phrase “mass incarceration.”  Scholars have observed that it’s not actually the masses that are being incarcerated at obscene levels but rather Black people.  Likewise, the war on drugs has been principally waged not so much on drugs but on people of color, especially Black people. 

Calling it a war on Black people might sound histrionic and conspiratorial but that’s not the main problem.  Lots of things happen to Black people that sound histrionic and conspiratorial, but they still happen.  The main problem with calling the war on drugs a war on Black people is that it sounds overinclusive.  I am Black and I have never been caught using illegal drugs the many times I have used them.  My experience as a prosecutor, which included a year locking up drug “offenders” in Washington D.C. taught me that the people who get caught are sometimes foolhardy – for example, getting high in public places in one of the most policed cities in the world, or unlucky.   Most Black users, like users of other races, have the good sense to indulge in private spaces, usually far from the prying eyes of law enforcement.  That’s how, playing the mind games familiar to Black prosecutors whose work mainly consists of locking up Black people, I justified prosecuting people for weed crimes when I had committed them myself.   My defendants, I told myself, were stupid to get caught.  In contrast, I stopped smoking weed when I began enforcing anti- drug laws, not based on any abstract concern about hypocrisy but because my employer, the United States Department of Justice, required random drug testing of its staff.

David Pozen, The Constitution of the War on Drugs

Guest Blogger

Seeing the University More Clearly

David Pozen

Crisis can be clarifying. Recent events on campuses across the country have forced many of us to look more closely at how our own universities work. I have no special insight into most aspects of the Columbia protests or the administration’s response. But as someone who studies public law and nonprofit law, I have been struck by a number of legal-institutional forces that helped bring Columbia to its current conjuncture—all of which relate, in various mutually reinforcing ways, to the power of the president’s office.

The (In)Fertile Constitutional Ground of American Drug Policy

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Ten years ago, Frank Zimring chastised legal academia for being insufficiently relevant in their teaching and scholarship. “Over a thousand of the best and the brightest criminal minds in America have been missing in action” from one of the “key debates of their field”—the War on Drugs. Zimring’s claim may have been inflated, but he raised a fair point about the relative insignificance of this governmental crusade in legal scholarship and education vis-à-vis its impact on society.  

In his recent book, The Constitution of the War on Drugs (CWD), David Pozen brings his con law talents to the crime-infested world of narcotics regulation and responds (albeit indirectly) to Zimring’s clarion call. But there is one caveat that distinguishes this slim, readable book from previous takes: Pozen is less interested in the criminal procedure questions that scholars of drug policy have obsessed over (though he nods to them and describes them to the non-legal reader). Instead, he is interested in constitutional provisions that have been used to challenge drug prohibitionism.

From my reading, Pozen seems animated by several questions, most relevantly: Where was constitutional law during this albatross of a policy experiment? How did litigators deploy constitutional provisions? Where were the missteps by advocates and courts? Did glimmers of constitutional hope exist? What were the paths not taken? In this vein, the reader gets some freedom of speech and religion, equal protection, commerce clause, penumbral privacy, and even a drizzle of comparative constitutional law, amongst other issues. In the end, Pozen shows how, in some instances, federal constitutional provisions (and state analogs) provided opportunities for challenging the War on Drugs but were ultimately overturned, rejected, or not fully adopted.

My goal here is not to rehash the analysis of a book that I think students of criminal justice and constitutional culture should buy, read, and engage. Instead, I want to raise a few issues that stood out to me as someone ensconced in that first camp, but who cares about the latter. My hope here is to trigger more inquiries or prompt additional discussion from Pozen.

Pozen on Prosocial Drug Use

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Jennifer D. Oliva 

The United States has long waged a “costly, punitive, racist, and ineffective” drug war “that has been a failure on all counts.” Over the last half-century, Americans have sacrificed trillions of dollars to prop up a prohibitionist drug law and policy framework that has ensured ever-escalating and record-setting drug-related mortality and enshrined the United States as the world champion mass incarcerator. Columbia law professor David Pozen’s book, The Constitution of the War on Drugs, breaks new ground by exploring the evolution of American drug prohibition through the lens of constitutional law. 

The drug war is a glaring example of policy failure driven by American “racial and spatial logics.” As historian Matthew Lassiter pointed out, “[t]he modern war on drugs has operated through the reciprocal decriminalization of whiteness and criminalization of blackness and foreignness, grounded in selectively deployed law enforcement and the discursive framing of idealized suburban spaces and pathologized urban slums and bordertowns.” In that connection, drug war logic is stubbornly immune to evidence-based policy.  While purporting to classify drugs as either licit or illicit based on their safety, medicinal value, and “potential for abuse,” American law is more likely to deem a particular substance illicit due to its use association with certain groups than its toxicological risk-benefit profile. This is why cannabis and various psychedelics, such as psylocibin, which are associated with racialized minorities and contingencies on the political left, are illicit under federal law, while substances like alcohol and tobacco, which account for approximately 40 times the number of deaths than all illicit drugs combined but are associated with North American colonizers, are widely available for recreational use. 

The drug war’s irrationalities, inequities, and hyper-reliance on harsh punishment to deter the private use of particular substances, including drugs that promote positive health outcomes and prosocial experiences, seem ripe for constitutional challenge. Indeed, inspired by civil libertarians, drug reformers brought “a tidal wave of constitutional challenges to state and federal drug prohibitions,” including due process, equal protection, cruel and unusual punishment, and First Amendment challenges to punitive drug laws in the late 1960s and 1970s. While those reformers achieved temporal successes, the “tidal wave was swept back to the sea” as their legal victories were “overturned, minimized, or ignored by later courts.” As Pozen notes, not only has constitutional law failed to constrain or reform punitive drug prohibition—“one of the most ‘obviously defective and destructive’ policies in modern American history”—it has repeatedly legitimized and perpetuated the drug war.

Looking Inside and Outside the Law to Understand the Successes and Failures of Drug Reform

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Kimani Paul-Emile 

Much has been written about U.S drug prohibition over the years, so it is surprising that no one until now has used the constitution as lens for examining it.  In his excellent new book, The Constitution of the War on Drugs, David Pozen exhumes the long-buried history of constitutional challenges to punitive drug laws and masterfully chronicles how the judiciary was used by reformers and the state to dispute, rationalize, and ultimately enable the widely maligned war on drugs.  After documenting the ways in which constitutional law has failed to offer a path to more sensible and humane drug laws, Pozen observes that drug reformers today “do not invoke our supreme law”[1] and asks whether drug reformers even “need constitutional law at all to dismantle the war on drugs.”[2]  Like Pozen, my response to his query is an emphatic no.

Pozen and the Puzzle of Counterfactuals

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Louis Michael Seidman 

                David Pozen’s carefully researched and brilliantly argued book on the Constitution and the War on Drugs is both illuminating and disturbing.  No surprise there.  Pozen is our country’s most inventive and interesting young constitutional scholar. 

The book is illuminating because it unearths forgotten moments when judicially formulated constitutional doctrine that could have ended or sharply restricted the War on Drugs were well within the Overton Window.  Even today, Pozen argues, there are underexplored and plausible constitutional arguments supporting a personal right to drug use. 

The book is disturbing because it surfaces hard questions about historical contingency and the scope of the change that might have occurred in a counterfactual world – questions familiar to students of historiography and philosophy and that once divided the Critical Legal Studies movement but that have not been adequately discussed in modern normative constitutional scholarship. 

In this review, I concentrate on these problems.  I argue that the failure to specify both the nature of the counterfactual and the breadth of the alternative possibility have confused discussions about constitutional reform in general and about the reform Pozen suggests in particular.

The Media and the Heckler’s Veto at UCLA

Joseph Fishkin

Constitutional Withdrawal

Guest Blogger

For the Balkinization symposium on David Pozen, The Constitution of the War on Drugs (Oxford University Press, 2024).

Rachel E. Barkow

You might think the only thing harder than finding something new to say about constitutional law is finding something new to say about the drug war. David Pozen’s new book, The Constitution of the War on Drugs, offers refreshing and thought-provoking insights on both by exploring what the Constitution has to say – or could have said, with a different set of justices – about drug prohibition and enforcement. Pozen sets the stage for his analysis by asking “[h]ow could a set of policies as draconian, destructive, and discriminatory as those that make up the war on drugs come to be deemed, by so many officials and for so many years, to raise no serious constitutional problems?” 

In seeking to answer that question, Pozen exposes not only the limits of various constitutional doctrines to address one of the government’s greatest failures, but also the selective activism on the part of the Supreme Court justices. Pozen persuasively argues the ways in which the Court’s approach to drugs differs from its treatment of issues like reproductive choice and gun rights. That sets up the puzzle Pozen seeks to answer, as he explores why that differential treatment occurred. To those of us who focus on criminal law and punishment more generally, however, drugs do not stand alone. They are just one part of an enormous project of mass incarceration that the Court, and by extension, the Constitution, has ignored.

Balkinization Symposium on David Pozen, The Constitution of the War on Drugs

JB

This week at Balkinization we are hosting a symposium on David Pozen's new book, The Constitution of the War on Drugs (Oxford University Press, 2024).

We have assembled a terrific group of commentators, including Rachel Barkow (NYU), Paul Butler (Georgetown), Paul-Emile Kimani (Fordham), Jennifer Oliva (Iowa), Shaun Ossei-Owusu (Penn), Louis Michael Seidman (Georgetown), and Katherine Shaw (Penn).

At the conclusion, David will respond to the commentators.

On abortion, the Supreme Court shows it doesn’t care about democracy after all

Andrew Koppelman

In Dobbs v. Jackson Women’s Health, the Supreme Court famously declared that it was returning the abortion question to the voters.  The people could decide whether or not abortion was to be prohibited.  So, when a federal statute required that hospital emergency rooms offer abortions to women who face imminent medical disaster if they continue their pregnancy, the Justices who voted to overrule Roe v. Wade unhesitatingly enforced that statute’s plain language, relieved that the elected representatives of the people had taken this fraught issue off their hands.

Oh wait.  That’s not what happened.  The Court is so hostile to abortions that, to prevent them, it will defy the national legislature and harm women.

I explain a new column at The Hill.

Writing "For the Ages," Judicial Estoppel, and Trump v. United States

Mark Tushnet

So, we’re supposed to think that the Supreme Court’s decision in Trump v. United States will be one “for the ages,” as Justice Gorsuch pompously said. That self-inflated statement reflects a view of precedent that’s at best naïve, and probably worse: silly. Should another case involving a claim of presidential immunity from criminal liability come up in the future, the first question (about precedent) that justices in the future will ask themselves is, “Is there a principled way to distinguish this case from Trump?” If the justices are minimally good at doing law, the answer will inevitably be, “Yes.” The second question, then, will be, “Should I rely on that distinction?” That’s a decision the future justice will have to decide for herself (or, in the event the case comes up soon, that Justice Gorsuch would have to decide for himself). Nothing in the Trump decision can possibly help answer that question. So, “the ages” means—“until the next time we have to face the question.” 

That understanding of precedent—for me, the only sensible one—means that judges shouldn’t (to repeat myself) pompously inflate their sense of how important they are. And, notably, there’s a quite deflationary way out of the Trump case that—probably because they all have a pompously self-inflated sense of their importance—none of the justices seemed interested in exploring. 

There’s a relatively obscure and rarely invoked doctrine known as judicial estoppel (or, sometimes, estoppel by prior position). The Court put it this way: When a party “assumes a certain position in a legal proceeding, and succeeds in maintaining that position, he may not thereafter, simply because his interests have changed, assume a contrary position.” New Hampshire v. Maine, 532 U.S. 742, 749 (2001). The Trump case seems to me a good candidate for invoking the doctrine, and doing so would have almost no implications for how presidents (as potential defendants and potential chief law enforcement officers) could behave in the future (subject to my opening comment about precedent). 

In his second impeachment trial, through his lawyers Trump asserted that one ground for acquittal was that he was subject to potential criminal liability after he left office. And, although we can’t know why everyone who voted to acquit him did so, at least one Senator explained his vote by invoking Trump’s potential criminal liability. Those look like facts that could plausibly trigger the doctrine of judicial estoppel. (It’s irrelevant that the lawyer who represented Trump at the impeachment trial and made this argument on his behalf is different from the one who represented him in the Supreme Court. It’s the party, not the lawyer, who matters.) 

Of course invoking the doctrine wouldn’t be as simple as repeating the quote I’ve given. You’d have to explain why an impeachment trial is sufficiently similar to a criminal trial or other judicial proceeding to trigger the doctrine and you might want to worry a bit about whether the doctrine would apply when the initial proceeding was before an administrative agency. And you’d probably have to explain why the current charges against Trump are sufficiently similar to those in the impeachment trial to trigger the doctrine. Neither explanation would, I think, take more than a paragraph (impeachment trials are formally quite a bit like trials in the ordinary courts, and my guess is that you can probably find a case or two invoking judicial estoppel in connection with administrative proceedings; the charged actions are sufficiently similar that Trump’s incentives to assert defenses are equivalently strong). A little trickier, as I’ve noted, would be showing that Trump “succeeded in maintaining the position” that he was subject to subsequent prosecution. There’s enough precedent to support the proposition that statements by individual members of a multimember body can be attributed to the body itself (most recently, in Masterpiece Cakeshop). And, the problem is going to come up so rarely that worrying about pinning down every possible variation is—again given a sensible view of precedent—not worth the time. 

A couple of mopping up details: I assume that judicial estoppel isn’t fairly encompassed within the question presented—but respondents are entitled to rely on any available argument to support the judgment under review (the “fairly encompassed” rule applies to petitioners/appellants). And there’s a paper rattling around by Margaret Lemos and Deborah Widiss pointing out that many members of the current Supreme Court have criticized the government for changing its position, sometimes but not always because of a change in administrations. Lemos and Widiss explain that there are sometimes good institutional reasons for such changed positions—but, notably, the institutional reasons aren’t available when an individual litigant changes his or her position. 

So, to go back to the beginning: Why hasn’t anyone paid attention to the availability of the judicial estoppel argument? I’m not saying that the argument’s a slam-dunk—just that it could be invoked in ways that wouldn’t open up the larger issues that the justices seemed preoccupied with at the oral argument. 

But, I suppose, that’s precisely the point. They—and, unfortunately, maybe we—think that they’re supposed to opine on deep questions about government structure given any chance to do so. You don’t have to be as skeptical as I am about the contributions the Supreme Court makes to good governance to think that that belief is misplaced in Trump v. United States.

A few preliminary reactions to the oral argument in Trump v. United States

Marty Lederman

I might write further about Thursday's oral argument when I get a bit more free time (end-of-semester obligations and all!), but I thought that in the meantime it might be worth noting a few things in fairly summary fashion while they're still fresh.

As Jack Goldsmith noted the other day, and as I explain further in my amicus brief, there are actually three different sorts of questions before the Court--the "immunity from prosecution" question described in the Question Presented, and another two questions that former President Trump included in his merits brief although he hadn't raised them below, each of which concerns whether Trump was even bound by the prohibitions in the three statutes at issue here, entirely apart from any question of immunity from prosecution.  The Justices asked questions bearing on all three of these issues at oral argument.  I'll address them in turn.  

Spoiler alert:  It appears that what's of most concern to the Justices isn't really any question of immunity from criminal prosecution but instead whether the substantive criminal statutes here might raise serious constitutional questions when applied to applied to certain types of official presidential conduct that aren't present in the Trump case.  I discuss that issue in the third section below. 

What About Watergate?

Gerard N. Magliocca

I was traveling yesterday and unable to listen to the oral argument in the Trump immunity case. I've only read the transcript. But I don't understand how the Court's thinking can be squared with Nixon's alleged crimes during Watergate. Many of his actions there were official. Indeed, much of the problem was that he abused his official powers (for example, by ordering the CIA to cover up the burglary).

I take it that the Court believes that Nixon could have been prosecuted after he resigned. Is the answer, then, that his actions during Watergate will be recharacterized as unofficial? If so, that comes close to making real the joke in a "Yes, Prime Minister" episode where an action is described as "unofficially official but officially unofficial."

Why Can’t House Republicans Have Nice Things?

David Super

      That may seem a strange and perhaps uninteresting question to ask, particularly given that I (and I suspect many readers) have no great desire for the current set of House Republicans to enjoy nice things (except, perhaps, all the many perks our system offers to former Members of Congress).  Yet on the face of it Freedom Caucus Members would seem to have a point when they say that surely Speaker Johnson could have extracted some concessions for the Ukraine aid bill now moving through the House. 

     The answer provides important insight into how Congress works; that insight's importance goes far beyond today’s House Republican Conference.  Today’s Democrats (and Senate Republican leadership) seem to have mastered these lessons; that has not always been the case and may not be in the fairly near future.

Norm Breaking at Columbia

David Pozen

Recent events at my home university have inspired a torrent of critical commentary. That Columbia’s leadership declined to follow various norms of campus governance does not, in itself, prove that it acted unwisely. But seeing the pattern of norm breaking helps throw into relief the potential costs of its decisions in the future as well as the present. 

First, during President Shafik’s testimony on Wednesday before the House Committee on Education and the Workforce, she disclosed that several faculty members are under investigation for making discriminatory remarks. “President Shafik’s public naming of [these faculty members] to placate a hostile committee,” the American Association of University Professors observed, “sets a dangerous precedent for academic freedom and has echoes of the cowardice often displayed during the McCarthy era.” In setting this precedent, Shafik violated a longstanding norm of confidentiality regarding internal disciplinary proceedings. University rules provide that allegations of discrimination will be handled in a confidential manner. Often, these proceedings are handled so secretively that even the complainant is kept in the dark. To have an ongoing investigation revealed by a top administrator on live TV, in the absence of a subpoena or other legal compulsion, is a stunning departure from campus customs and investigatory best practices more generally.

Abrams Institute Conversations: Will the Supreme Court Let States Take Control of the Internet?

JB

Here is a conversation between Tim Wu and myself, moderated by Floyd Abrams, about the First Amendment issues in the NetChoice cases before the Supreme Court. (Tim and I participated in writing amicus briefs on opposite sides of the case.) 

This event, which was recorded on March 4, 2024, is a part of a series of conservations on free speech issues hosted by the Abrams Institute for Free Expression at Yale Law School. 

The Supreme Court's First Chat-GPT Opinion

Gerard N. Magliocca

A bill is pending in the Nebraska Legislature to return that state to a "winner-take-all" system for allocating electoral votes. In 2020, President Biden won an electoral vote in Nebraska under the current "split" system even though President Trump easily carried the state. Nebraska Republicans are eager to avoid a repeat especially given that the 2024 election could come down to a single electoral vote.

If enacted, this law should face constitutional questions under Trump v. Anderson. Some of the Justices at oral argument expressed dismay at the possibility that one state could decide a presidential election. This was contrary to the Constitution's structure, they said. They also worried about retaliation. If Nebraska can do this for partisan advantage, why can't another state do the same? Where will this end? 

Of course, no such constitutional scrutiny will be given to this sort of change in Nebraska or to state laws that will probably keep Robert F. Kennedy Jr. off the presidential ballot in some states. The logic of Trump is something that only Chat-GPT could love.

UPDATE: Nebraska lawmakers voted down the bill and doubled down on our patchwork method of allocating electoral votes.

How the Supreme Court uses ‘tradition’ to take away the rights of Americans

Andrew Koppelman

Mark Milley and the Constitution

Mark Tushnet

One matter that’s been largely unremarked upon in discussions of Trump, January 6, and the abortive “coup d’etat” (scare quotes because, compared to real coup attempts this one was a comic opera) is the role of the US military—or, more precisely, the proposition, which everyone seems to take for granted, that the US military wouldn’t have supported the coup (in contrast to Brazil, where the possibility of military support for a Bolsonaro coup was real and openly discussed). What follows are some tentative thoughts about this issue.

That the military would not intervene is taken for granted, I think, because people assume (correctly) that military leadership at the highest levels understands that their duty is to support and defend the Constitution. As Jeff Powell and others have said, one (unwritten) constitutional principle is that political change is never to be carried out through direct exercise of violence (though any realistic view of constitutional change has to acknowledge that violence often lies in the background of such change). The difficulty, though, is that another (partly written) constitutional principle is that the military is ultimately under civilian control.

The taken-for-granted assumption about Trump and the attempted coup is that military leaders would have ignored/defied a direct order from the (still) commander-in-chief to intervene on his behalf—that is, would have ignored the principle of civilian control of the military in the service of their own understanding of basic constitutional principles (here, the principle about direct force and political change). I have a strong sense that even the most extreme of Trump’s advisers—and so Trump himself—knew this and so didn’t even explore seriously the possibility of issuing such a direct order.

I’m not sure that we “constitutionalists” should be completely comfortable with that (as a general proposition). Consider a scenario suggested to me by my reading of Uwe Wittstock’s terrific book, February 1933. The Proud Boys and similar groups become serious paramilitary organizations carrying out terroristic attacks on liberals on a regular and reasonably large scale. Congress responds by authorizing the president to deploy regular military force to suppress paramilitary organizations. Do we want the Joint Chiefs of Staff to decide whether that statute, or actions taken by the president to suppress right-wing paramilitaries, is consistent with their independent view of what the Constitution permits?

I’ve worked out (for myself) scenarios in which political actors effect a change in the method of choosing the president that eliminates the Electoral College. Suppose there’s an election which candidate A would have won the electoral college but candidate B wins under the revised system, and suppose the Supreme Court holds that the constitutionality of the revised system is a political question. Do “we” want the Joint Chiefs to intervene on candidate A’s behalf?

The problem I’ve sketched is, I think, a version in the non-judicial context of what Alex Bickel called “the moral approval of the lines”—“we” take for granted that following Trump’s orders would have been a bad thing and so aren’t concerned about the (implicit, assumed) disregard of the principle of civilian control of the military. Bickel’s point was that times change, and so do views of what lines should be approved morally. That seems to me true in the context I’m dealing with here as well. (The scare quotes around we are there is signal that Trump's supporters might well give answers different from the ones most readers of this blog would give.)

Bickel was working in the “neutral principles” tradition, and realists/crits have a number of responses applicable to the non-judicial context: carpe diem/sufficient unto the day is the evil thereof; doing the wrong thing now because somebody else might do a different wrong thing in the future is a fool’s game.

As noted, these are tentative thoughts—but I do think that the issues deserve more exploration.

The Supreme Court’s Gay Rights-Religious Liberty Contortions

Andrew Koppelman

Send in the Clowns

David Super

     So with just over six months remaining in the fiscal year, the federal government is finally funded.  And Rep. Marjorie Taylor Greene has filed a motion to oust House Speaker Mike Johnson.  Should we be worried?

     The omnibus appropriations legislation is bad, but that was largely pre-ordained by the bad budget deal President Biden made with then-Speaker Kevin McCarthy to prevent a national default.  Within those constraints, the final deal is about what one might expect. 

     The final appropriations bills – this one and the one enacted earlier this month – are much closer to the bipartisan Senate appropriations bills than to the extreme measures House Republicans proposed, and occasionally managed to pass, through their chamber.  But this is precisely because the Senate wrote its bills to be plausible and the House wrote its bills to gesture to numerous special interests and ideological fringe groups. 

     Far right (and far left) activists doggedly insist that moving their starting position in negotiations farther in their direction will pull the final compromise in that direction, too.  That can be true under some circumstances, but only to a degree.  Past a certain point, a position comes to be seen as unserious and has no impact at all on the negotiations.

Balkinization Symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy-- Collected Posts

JB

Here are the collected posts for our Balkinization symposium on Rick Hasen's new book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

1. Jack Balkin, Introduction to the Symposium

2. Michael Waldman, Expanding Our Constitutional Imagination

3. Emily Rong Zhang, Give us (a lasting consensus on really protecting) the Right to Vote!

4. Bruce E. Cain, Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

5. Alex Keyssar, That Little Omission in the Constitution

6. Wilfred U. Codrington III, A [More] Real Right to Vote?

7. Sanford Levinson, Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

8 .Derek T. Muller, Some skepticism about (and some promise for) a constitutional right to vote

9. Dan Tokaji, Dare to Dream

10. Richard L. Hasen, A Surreal Right to Vote: Responding to the Balkinization Symposium

Who will own DJT?

Joseph Fishkin

Comstockery in the Court and on the Campaign

Guest Blogger

A Surreal Right to Vote: Responding to the Balkinization Symposium

Guest Blogger

Dare to Dream

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2023).

Dan Tokaji

This is my quest to follow that star
No matter how hopeless, no matter how far . . .

And the world will be better for this . . .

“The Impossible Dream,” as sung by Don Quixote in Man of La Mancha

Toward the end of his new book A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy, Rick Hasen addresses the concern that it might seem “quixotic and naïve” (p. 149) to pursue an amendment to the U.S. Constitution adding an affirmative right to vote.  No one can plausibly accuse Hasen of naivete.  The foremost chronicler American election law, he is well aware of both the formidable challenges we face and the herculean difficulties in amending the Constitution.  In one sense, however, A Real Right to Vote is worthy of Quixote (though more like the musical’s version than the novel’s).  It embodies a hopeful idealism about democracy and the possibility for its improvement.   The constitutional amendment Hasen imagines may not be achievable, but the world would be better if we followed his quest.

To his credit, Hasen is clear-eyed and forthright about how hard this would be.  A constitutional amendment generally requires either a convention or two-thirds affirmative vote in both chambers of Congress, followed by ratification in three-quarters of states.   In this era of hyperpolarization, it’s difficult to imagine achieving the consensus across party lines that would be required to clear this bar.  

That said, Hasen accurately diagnoses the maladies of our current election system and prescribes effective remedies.  The problems include state laws that fence out eligible voters, usually people are less affluent and often people of color.  Hasen rightly focuses attention on difficulties in voting that confront many Native American voters, especially those living on reservations (pp. 5, 92-99).  Sadly, the Supreme Court majority elided those difficulties in Brnovich v. DNC (2021).  In that case, the Court upheld Arizona voting rules with a disparate impact on Native American voters, in an opinion that has made it more difficult to challenge similar burdens under the Voting Rights Act.

Some skepticism about (and some promise for) a constitutional right to vote

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Derek T. Muller

The right to vote is a fundamental right, one belonging to the citizens of all free governments. So who could possibly oppose an amendment to the United States Constitution enshrining that right?

I suppose I do, but for what I think are some eminently practical reasons.

Professor Rick Hasen’s A Real Right to Vote opens with some indisputable and important truths about elections in the United States. We have seen a dramatic expansion of enfranchisement in the United States. Much of that is thanks to the political process, from constitutional amendments guaranteeing that the right to vote shall not be denied or abridged on account of race or sex, among other protected characteristics. Congressional legislation, most notably the Voting Rights Act, helped give effect to important constitutional guarantees. And there are perhaps more opportunities and flexibility to vote in the United States in the twenty-first century than ever before.

But there has not been an affirmative right to vote in the Constitution (at least, of the kind Professor Hasen desires to see) for quite some time. So, why now? Three practical reasons stand out.

Agency Problems’ Impact on Budgetary Outcomes

David Super

     Over the past few years, critics on both the Left and the Right have been intensely critical of their respective party leaders for supposed timidity in failing to achieve their fiscal objectives.  These criticisms are not without foundation.  A careful examination of the past few years, however, suggests that although agency problems have real adverse effects, within each political coalition grassroots distrust of leaders has proven much more destructive to the grassroots’ espoused substantive goals. 

     The inescapable conclusion is that each side needs effective ways of dissuading their leaders from putting personal considerations ahead of the group’s substantive objectives, micromanaging negotiations from afar is disastrous.  Even when partisans suspect their leaders have fallen short, failing to support those leaders opens a huge opportunity for the other side.  This post illustrates this point with one actual agency failure and one grassroots revolt from each side of the political chasm. 

     With an evenly divided Senate during President Biden’s first two years in office, and with supposedly moderate Republicans abandoning much pretense of bipartisanship, passing any legislation required the support of every Senate Democrat.  That included the moderate Joe Manchin and the capricious Kyrsten Sinema.  As much as progressive activists might wish otherwise, neither senator shares their values.  Although Arizona has recently elected some fairly liberal candidates, West Virginia is one of the reddest states in the country:  if Joe Manchin were not a moderate, he would not be a senator.

Do We Need Audacity Instead of Measured Prudence? On the Pathos of Richard Hasen's Call For “A Real Right To Vote”

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Sanford Levinson 

            There is a deep pathos underlying Richard Hasen’s call for A Real Right to Vote:  How a Constitutional Amendment Can Safeguard American Democracy.  Hasen probably knows more about the workings of the American electoral system than any other contemporary academic.  A founding  co-editor of the Election Law Journal, on whose Board he continues to serve, he has published more than 100 articles on various aspects of election law, not to mention a number of books on the topic.  He is frequently, and for good reason, a “go to” source by journalists looking for thoughtful—and often critical—responses to judicial decisions touching on voting.  He recently moved to the U.C.L.A., where he is a professor of law and political science and directs the Safeguarding Democracy Project there.  He is a truly engaged scholar. 

            A frequent theme of his writings, not at all surprisingly, is the inadequacy of the American system of conducting elections.  He is certainly correct.  I would go so far as to say that the United States has the worst electoral system, overall, of any of the countries that we count as “democratic.”  I have chided my friends Pam Karlen, Sam Issacharoff, and Richard Pildes for titling their widely used casebook on election law The Law of Democracy.  For me the title is sadly misleading and, therefore, ideological, inculcating in at least some impressionable students the mistaken view that the United States is a democracy.  (This, of course, is not a new theme of mine.)  One might argue, of course, that it was never designed to be one; thus the old slogan that the United States is a republic and not a democracy.  In any event, those who shared the views of, say, Eldridge Gerry that the nascent United States in 1787 was plagued by an excess of democracy might be pleased with the way things have worked out.  If one compares the United States Constitution with the fifty state constitutions, let alone most modern foreign constitutions, it is easily the least democratic constitution in the mix. 

            We are, of course, headlong into a new election season where the upcoming choices, especially at the presidential level, are accurately described as not only the “most important election of our lifetime,” but also a potential referendum on whether the United States will continue to be recognizable as a purported “democracy” (or “Republican Form of Government”) at all.  Perhaps it is hyperbolic to compare our situation to Weimar Germany in 1933, but it is surely the case that Donald Trump has become the avatar of a basically authoritarian, even fascistic, political party whose members brook no challenges to their exercises of power. 

            So Hasen’s latest book is his latest exercise of warning the American public about the deficiencies of our electoral system and calling on us to engage in reform before it is indeed too late.  He might well be analogized to a modern-day Paul Revere.  We must worry that what we think of as our democratic system is under systematic threat, and we must mobilize to save it.  For these warnings Hasen deserves our repeated gratitude and highest esteem.  He is a good citizen in the highest sense of that term.

Why We Won Trump v. Anderson

Mark Graber

Who won Trump v. Anderson is for the future, not the Supreme Court to determine. Or so I maintain in this Washington Monthly piece.

A [More] Real Right to Vote?

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Wilfred U. Codrington III

Many congratulations are due to Professor Richard L. Hasen on the publication of his newest book, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy. In this short book that seeks to address not-so-sweet problems, Hasen seamlessly weaves anti-canonical election law cases with modern stories of anti-democracy (some of which have yet to reach their conclusions) to explain the utility of a Right to Vote (“RTV”) Amendment today. In general, I am happy to read this work, as it adds a distinguished voice to the growing chorus that sings the praises of a RTV Amendment. An idea that was once looked upon as extraneous, unworkable, or even a pipe dream seems to be gaining more traction in the scholarly community. Even still, my sense is that Hasen’s proposals—both the basic and extended versions—do not go far enough in an important respect. Any discussion of an effective right to vote that disregards the problem of partisan gerrymandering, to me, seems incomplete.[1] And having gone back to review some of Hasen’s older works, I am persuaded that, even on his terms, there are at least three reasons why the basic amendment should include a provision to address the concern of partisan gerrymandering.

Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity

JB

I've just uploaded a draft of my latest article, Rabbi Akiva and the Crowns: A Parable of Constitutional Fidelity, to SSRN. It is part of a B.U. Law Review Symposium on my new book, Memory and Authority: The Uses of History in Constitutional Interpretation and Jonathan Gienapp's forthcoming book, Against Originalism: A Historical Critique.

Here is the abstract.

Historian Jonathan Gienapp argues that the Founding generation held very different views about constitutions, law, rights, and judicial review than lawyers do today. His target is conservative originalism, but his arguments are important for originalists and non-originalists alike. How is faithful interpretation of the Constitution possible if we inhabit a very different world from the generation that produced it?

This essay answers that question by retelling a famous story in the Gemara about Moses and the Talmudic sage Rabbi Akiva, who lived a thousand years later. The story explains how the rabbis who compiled the Talmud in the sixth century C.E. dealt with the problem of interpreting religious texts that had been written hundreds of years earlier in a very different world. The rabbis argued that faithful interpretation of the law must recognize the distance between past and present and accept the need for creative adaptation in the face of transformations, upheavals, and ruptures. The same lessons hold true for constitutional interpretation today.

That Little Omission in the Constitution

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Alex Keyssar

More than twenty years ago, in the aftermath of the 2000 election and Bush v. Gore, I participated in an effort to place a “right to vote” amendment in the Constitution.  Working with Jamie Raskin (then a law professor), Rob Richie (of FairVote), and numerous other activists and intellectuals, we drafted several versions of such an amendment -- a simple text as well as others dealing with more knotty matters like ex-felons and Puerto Rico.  Illinois Congressman Jesse Jackson, Jr. not only promoted the idea in Congress but vowed publicly that getting it passed would be the centerpiece of his work as a political leader.  Our actions, and our thinking, were prompted by the conflicts, litigation and disenfranchisement that arose during the 2000 election, as well as by Justice Scalia’s pointed assertion, in oral arguments, that “there is no right of suffrage under Article II” of the Constitution.  We thought that an amendment could plug a big hole in the fabric of our democracy.  We were also optimistic about its prospects (or at least I was):  the right to vote was an all-American value, like motherhood and apple pie.  Who could be against it? 

Thanks primarily to Jackson’s efforts, the amendment fairly quickly attracted more than forty co-sponsors in the House.  But then the effort gradually stalled.  No Republicans signed on, and no Senate co-sponsors could be found (not even the junior senator from Illinois).  The Democratic Party, at its convention in 2004, declined to insert an amendment proposal into its platform; key leaders said they feared opening up the Pandora’s box of amendments, lest conservative ones enter the fray.  Congressman Jackson understandably put his energy into other battles and later ran into some legal troubles of his own, depriving the effort of his leadership.  Over the years, we learned that many people – or at least many members of Congress – were more than ready to oppose a constitutional amendment protecting the right to vote.

Academic Freedom of the Press: Is it Too Late for the New Fourth Estate?

Guest Blogger

Going Big on Election Reform: A Political Scientist’s Take on Rick Hasen’s Proposed Constitutional Amendment

Guest Blogger

For the Balkinization symposium on Richard L. Hasen, A Real Right to Vote: How a Constitutional Amendment Can Safeguard American Democracy (Princeton University Press, 2024).

Bruce E. Cain

Through various editions of his textbook, voluminous blogs and extensive scholarship, Professor Rick Hasen has tirelessly promoted and energized the field of Election Law for several decades.  Indeed, there are times in my life when I received more daily communications from Rick and electionlaw@lists than my close friends and family combined. Not complaining, mind you, but just saying. 

 Due to his high public profile and many connections with the reform community, Rick often both reflects and shapes the modern US political reform agenda. Accordingly, his latest book offers insight into contemporary reform thinking in the context of recent conservative judicial decisions and the country’s considerable political uncertainties. 

On the strategy spectrum of going big with reform versus going small with incremental measures, the trend lately is more towards the former than the latter.  We got a glimpse of this when the Democrats offered up HR1 in the early days of the Biden administration. Professor Hasen ups the ante on big and proposes what many consider the most politically difficult pathway: i.e. amending the US constitution.