Fifth Circuit Election Madness, a Post-Mortem on Roe, & the War on Drugs
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Hey, it's Kate. And Leah. And we're recording this conversation after our regular episode was basically already finished, because of course it was. And we do have a great episode teed up for you today. It's about how law changes, and we discuss two terrific books on the topic. But before we get to those conversations, we have some breaking news we need to bring to you. Because the Fifth Circuit fifth-circuited, by which we mean they have attempted to short-circuit our democracy. Yeah.

And we flagged the case in which they did that, RNC v. Wetzel, as a case to watch. It's a case about whether it is illegal for states to count ballots that arrive after Election Day, even if those votes were cast and mailed prior to Election Day. Now, in 18 states and the District of Columbia, there are laws on the books that authorize state officials to count votes that come in after Election Day so long as those ballots are sent first.

or postmarked by Election Day. To which the Fifth Circuit said, watch this, like usher me, not for much longer, because in what can only be described as an outlandish, radical opinion that would extensively refashion elections, the Fifth Circuit discovered that unbeknownst to all of us, Congress in the 1800s actually prohibited states from counting ballots that arrived after Election Day.

In a true, true galaxy brain move, some geniuses, those on the Fifth Circuit, discovered that, well, actually, federal law has preempted these state laws for over 100 years. It's just nobody realized it until now.

This is becoming a familiar theme. We and only we can actually see what everyone has always missed. Yes. Like these three judges discovered some truth embodied in these century-old statutes that had somehow until now eluded absolutely everyone, like all of their predecessors, all officials, you know, until they just –

happened upon it. And, you know, in order to see this universal truth, the judges had to eschew textualism. You know, in a footnote to their opinion, they say, quote, while dictionary definitions often help us our understanding of statutory text, they do not shed light on Congress's use of the word election in the 19th century. Dictionaries except if they cut against us and then no dictionaries. Exactly. Exactly. The majesty of the rule of law. Yeah.

So as Leah just described, you know, I do think that what this panel just did was but actually democracy and democracy as we know it for tens of millions of Americans. So the opinion is rich in irony. But we should say before we talk more about the contents of the opinion that it does seem to us wrong.

Right. Underway.

Because what the court did was finding that Mississippi's law and presumably other laws that authorize ballots to be counted after Election Day were preempted by federal law. What the Fifth Circuit did was send the case back to the district court to determine what the remedy for this violation would be. And that would include whether any injunction would go into effect. So the Fifth Circuit itself did not put on hold this Mississippi law. It sent the case back to the district court.

And I think part of the reason why we're optimistic that this wild ruling isn't going to go into effect for the election underway is because the district court, the court to whom the Fifth Circuit sent the case back to, that court had sensibly upheld the state law.

So this is a district court that seems to understand the whole law thing. And that makes me cautiously optimistic that they will understand that they can't just upend the rules of the election while the election is ongoing. You know, there is this Purcell principle that is supposed to prevent courts from switching election rules, including rules about what ballots can be counted a week or so before election day. Again, one.

while the election is ongoing, right? You say that and it's just... It's so insane that it's a conversation that has to be had, that it's even a question. But I do think, A, there's every reason to be confident that the district court is not going to inject that chaos now. And I understand being hesitant to make predictions around this case because it's already gone so bonkers. But even if we were wrong about that, I actually think even this Supreme Court would not allow the upending of election rules this close to an election.

So I actually do feel pretty confident that it's not going to happen. I think there are a few votes, right, to do that. But not enough. Yeah, maybe not five. So maybe a taste of some of the ridiculousness of this opinion. You know, the opinion begins in its analysis with this pronouncement of Congress's broad authority to regulate elections. Oh, really? Yeah.

Where was this energy in Shelby County versus Holder, you know, when Republican appointees dismantled a key provision of the Voting Rights Act? Their Congress's power, not so broad, but here it is. Congress and Congress alone gets to decide when elections happen and if insurrectionists get to run for office. And otherwise, sovereign states are in the driver's seat. That is the majesty of the law.

So what else is in the opinion? So it offers some conceitedly absurd hypos to illustrate why ballots are only valid once received, such as, quote, what if a state changes its law to allow voters to mark their ballots and place them in a drawer? Would that be a problem? It's like,

This is basically like Sam Alito holding up a pad of paper that is blank and asking Solicitor General Preligar, like, is this a grocery list? Like here they're pulling up some Apple Dance TikToks and saying, is this a vote? Is this a ballot? Right. Imagine a law totally different from this one. Would that bother you?

If yes, this one should too. Imagine a law in which a vote does not actually go out to anyone else. You know, could a state declare that the vote? I mean, come on. What if it just makes your thoughts a vote? Would that be a problem? Exactly. Exactly. Exactly.

Yeah. So they also fixate on this idea, which you had highlighted after the oral argument, Leah, of consummation. So the idea that an election has been consummated and they insist that consummation, which I'm trying to say with a straight face, that consummation occurs only when officials know that there are X number of ballots to count.

There is literally a section of the opinion on consummation, and they just define consummation this way, just by asserting it to be the case. And it, you know, makes you wonder whether ballots that are cast by Election Day but received after have, I don't know, maybe it could be called the potential for life or the potential of a vote. And states should be able to recognize the dignity and sanctity of those votes, too. And protect.

them and protect them and protect them. Um, alas, that obviously only applies when states are trying to restrict women's healthcare, um, not expand the franchise. Um,

I guess another way of framing it while we're fixated on consummation and whatnot is to ask whether states could decide to permit ballots postmarked by Election Day to be carried to term, right? Is that an analogy that would have more purchase here? Like, no, we can't – no dropping ballots in the mail or ballot drop boxes. No, but what if the ballots were allowed to be dropped in a baby box? Oh, yeah.

Oh, baby dropbox. Yeah. States could permit those votes to be counted. Maybe only babies can be put in dropboxes, not ballots? What if there's a ballot with the baby? Then maybe that ballot could count. This is a hypothetical that the Fifth Circuit never considered that they clearly should have. I hope if the case comes back, they take this under advisement. Okay. Yeah. All right.

So one quick mea culpa, you know, we had flagged this case because when we saw the panel, which was three Trump appointees, Judges Ho, Oldham and Duncan, it was like, whoa, whoa, whoa, democracy, you're in danger, girl. And then I listened to the

argument. And it didn't sound like they were actually going to pull the trigger on this because you had the judges actually asking about Purcell signaling some awareness that they can't actually pull the rug out from under election rules while an election is ongoing. And yet it turns out my expectations were too high, right? I was too...

I don't know, indulgent of the Fifth Circuit, too willing to assume that they were going to act in good faith here. And I feel like anytime anyone suggests we're too mean to the Fifth Circuit, no, no, no, no, no, no, no, no, no, no, not mean enough, it turns out. Yeah. And this is just the rejoinder. Absolutely. Yes.

So they have this crazy bottom line conclusion. They do exercise a degree of forbearance in sending the case back to the district court. And honestly, the fact that we are...

Well, I mean, like, yeah, we are being saved from the country plunging into absolute disorder around this election based on the forbearance of these chaos agents. And that is a truly terrifying place to be. They easily could have just decided, like, no, we're going to put this into effect right away. They could have teed something up for SCOTUS that would have thrown voting into question, not just for the Fifth Circuit, but for the rest of the country.

And, you know, it is just like the tiniest shred of I don't know what restraint that is holding this whole thing together. And, you know, two other maybe things to say. So, you know, they could have thrown election into chaos everywhere or even if just the Fifth Circuit. Right. I mean, so the Fifth Circuit has Louisiana and Mississippi and Texas in it. But, you know, Texas –

important state right now. There is an unexpectedly close Senate race in Texas. People are sending in ballots from Cancun and we don't know if those are going to actually be received by Election Day. Well,

Well, and in Texas, you can count them so long as they received the day after. And so it really could throw into question the result of that Senate race and who knows what else. And I actually have to wonder – so this is me being sort of unusually cynical, I guess. But I have to wonder whether the reason they are exercising this modicum of restraint – we've seen something of a depolarization around early voting in this cycle as compared to 2020, where in 2020, Trump ran so hard against early voting, discouraged his people from using it.

And so then their post-election move a lot of the time was to try to get early votes thrown out because they were going to skew so heavily Democratic. And we have seen some shifting in that, in that voters of all stripes are taking advantage of early voting now. And Republican candidates are encouraging them to do so.

And some surrogates are still expressing some doubt, but Trump has encouraged people in lots of places to vote early and lots of other Republicans on the ticket have as well. So I wonder whether part of the reason they decided to hold their fire is because they weren't totally sure what the partisan payoff would be.

You know, actually throwing all this into question could actually hurt Republicans in some instances. And if it was clear the way it was in 2020 that actually putting this into effect now would really help Republicans up and down the ticket, maybe they would have just gone whole hog. I think that's a definite possibility because in order to know what the true meaning of Purcell is, we need to know like what outcome would favor Republicans. That's part of the test, obviously. Right, exactly.

That is part of the legal test, as Steve Lattik showed in his book, The Shadow Docket. Yep.

So one other note that I've kind of alluded to, two of the judges in the majority here, Judge Oldham and Judge Ho, are likely Supreme Court nominees, I think, in a second Trump administration. And the other judge on the panel is another Trump nominee, Stanford Storm Trooper, Stuart Kyle Duncan. So if you are thinking like, should I vote in this election? Should I be participating to help others vote? I mean, one thing to think about is the

president is going to likely pick, you know, a possible Supreme Court justice or two. And again, like the this is the slate that Republicans are potentially choosing from, you know, the judges that again, tried to tee up like, let's do a little I don't know, like election interference, stop the stealing through the courts in the midst of an election. And it's,

It's not good. And so that's one more reason. One more reason among many to get out there and make sure everyone you know is getting out there, too. OK, so on that uplifting note, one last thing before we get into the episode.

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She spoke not elegantly, but with unmistakable clarity. She said, I ask no favor for my sex. All I ask of our brethren is that they take their feet off our necks. Hello, and welcome back to Strict Scrutiny, your podcast about the Supreme Court and the legal culture that surrounds it. We're your hosts. I'm Melissa Murray. I'm Leah Littman. And I'm Kate Shaw.

And today we have a special two-part episode for you that is about how the law changes. And we make clear, sometimes law changes quickly, sometimes it can change incrementally over the long haul, but the real question is how and why it changes. So to launch that, we will first be in conversation with Lisa Lear and Elizabeth Diaz, who are the authors of a recent book on reproductive rights and justice, or the LA.

thereof, they are telling the story behind the overruling of Roe versus Wade. Then Kate and I will speak to Columbia law professor David Posen, who's the author of a recent book on the war on drugs and how that war on drugs has influenced the constitutional law that we have today.

So we spend a lot of time on this podcast rehashing Dobbs v. Jackson Women's Health Organization, the 2022 Supreme Court decision that, of course, overruled Roe v. Wade. And we also spend a lot of time assessing the landscape that has arisen in the wake of Dobbs.

And it turns out we are not the only ones who are completely obsessed with Dobbs and its aftermath. Joining us today are Elizabeth Diaz and Lisa Lear. They are New York Times journalists. Elizabeth is the national religion correspondent for the Times. And Lisa covers the intersection of campaigns, elections, and political power. And they have combined forces and coverage for a new book, The Fall of Roe,

The Rise of a New America, which is a searing account of the decades-long project to overrule Roe v. Wade. Elizabeth, Lisa, welcome to Strict Scrutiny. Thanks for having us. Thanks for having us. So obviously the two of you are colleagues at The Times, but you cover distinct though related beats. What's the origin story of your partnership and how you decided to collaborate on this book?

Well, Lisa and I joined the Times around the same time in 2018 on the Politics Desk. And we were really interested in kind of covering the country and politics through culture and understanding the relationship between politics, daily life, and just how culture really informed us.

all of these big changes we were seeing in the country. And we were listening to the oral arguments in Dobbs from, we were on opposite sides of the country covering the case. And, and,

in the middle of the arguments, we just kind of said to each other, this is like actually happening. I mean, if there's anyone who thinks this might not be happening, they're in for a big surprise. So we spent the next two and a half years researching, reporting, writing to try to answer this fundamental question of how did this big change happen? And with that, what

What kind of country, what kind of America do we have now and how did we get here?

So you've made the case for why a post-mortem on Roe and Dobbs is so important. But one of the things that's really interesting about the book is that you don't start all the way back in 1973 with the response to Roe. You actually start in 2012, just 10 years before Dobbs. Why that decision to begin telling the story just 10 years ago?

Well, look, that was a narrative and a sort of a reporting choice that we made. We felt like you could do a 50-year book, you could do a 10-year book, you could do a one-year book. And people have and will do all those sort of accounts of how this really seismic change in American life happened.

We felt like there was this 10-year arc where the pace of this whole thing really started to accelerate. And it started to accelerate as changes swept the Republican Party and also changes really swept our democracy. And we felt Roe really...

showed in some ways could illuminate those changes that happened to the Republican Party and raise questions about, you know, the state of American democracy. So we started 10 years ago because it was the moment when the anti-abortion movement told us it was their lowest point, um,

in their 50 year arc of trying to take down Roe. And of course, that is right when President Obama was reelected in 2013. It's when the Republican Party thought that abortion was sort of a political loser for them and was trying to move this movement that had been in the plank of their party for many years, decades.

out and push them to the sideline. And it's also, and this is something that people don't realize quite as much, it was the moment when white conservative Christians became a minority in America, just by a tiny bit, not by a sweeping margin, but it gave those forces who were so integral in this fight to take down Roe, the sense that they were losing their grip on America, that America was changing and it was moving away from them and their power. And you

In that focus, what did your reporting show about how this coordinated effort in the last decade or so took shape, who the key players were? What is that arc just from the most recent decade? Obviously, there are antecedents that are much earlier, but your focus is the more recent one.

The right actually had a very sophisticated network that was hard for many people on the outside, I think, to see along the way. But the anti-abortion movement has long been one of the most organized and persistent elements of the Republican Party.

And they kind of developed at every level. I mean, they had grassroots organizers. They had lobbyists at state houses. They had state legislatures. They got judges, of course, into key positions. And they really lucked out and were surprised, despite their work, when former President Trump was elected because it opened up this entire new world.

when a lot of other people were unprepared, they were very prepared. You know, they were experts at taking every crack, every opportunity to do whatever they could in that slice to expand their options, you know, to figure out how to restrict abortion rights. So there was a specific plan, really, you know, days after President Trump was elected in 2016. We document meetings and conversations that happened at the Federalist Society's

gathering in Washington and this decision by a few people that this was a moment that they could actually end Roe. And then we look at the network of Christian family policy councils, how they worked with state attorneys general. They did a lot of work through the Alliance Defending Freedom, a prominent conservative Christian law firm.

You know, of course, all the way up to the Supreme Court strategizing and really developing a litigative strategy, using legislation as a litigative strategy to leverage different circuit court regions all the way to figure out what kind of case could they get at the court to get the result that they wanted.

So typically, cultural change precedes legal and political changes. But as you show here, the right was able to use the legal and political landscapes to shape the culture around abortion. So could you say more about that dynamic?

Yeah, look, I'm a, I'm at my core political reporter, right? That's what I've done for most of my career. And I think there's this sense with politics where the culture changes, people march and they protest and they reflect that change. Politicians hear them and policy changes as a result. And I think also,

what the fall of Roe shows us is that sometimes, as you point out, culture changes in really different ways, that the law can be used to effectively force a change in the culture. And that's really what happened here. There has been majority support for some form, for Roe or some form of federal abortion rights

for decades at this point. Nobody was really, there was not a mass movement clamoring for Roe to fall. In fact, generally people supported Roe, but there was a very engaged, largely conservative Christian minority who spent a long time trying to take it out. And they were able to capture the levers of legal and political power in key spots,

of course, at the Supreme Court, the White House, but all the way down to really state houses and these sort of even in some cases city councils and be able to push through this legal change that then effectively changed the culture for the entire country.

We've talked some about the religious conservatives and some of the organizations that were sort of key in both shifting culture and shifting law. Can we maybe just bring some other actors who are characters in your story into the picture? So you referenced the kind of 2010, 2012 story.

is this really important kind of inflection point. And I think that the book does a really good job of disrupting the kind of conventional wisdom around the Tea Party, which is I think that it was largely an economic movement focused on the structure and function of smaller government. But there is this way more nuanced story that your book tells about how critical the Tea Party was in birthing the MAGA movement and both the political and the cultural changes that toppled Roe. Do I have that basically right? I think...

I think we think of the anti-abortion movement as these separate actors like happening over here. And then there's, you know, Tea Party economic conservatives. And now, you know, there's these MAGA conservatives who want to, you know, do sort of stop the seal in these like election conspiracy theory things. In fact, these are all one movement and they're really intertwined.

And part of what we talk about in the book is how, you know, while the Tea Party rode into power on this wave of economic dissent and pushback to the sort of bailouts during the Obama term. In fact, what they were really effective at was pushing through a whole bunch of abortion restrictions.

And, you know, 2011 was a high watermark until we got into sort of the final years of Roe, you know, much, you know, a decade or so later. It was a high watermark for pushing through these kinds of restrictions. And it really like laid the groundwork for how those laws could continue to move forward in more dramatic ways, which, of course, led to the case that would, you know, end up being Dobbs.

But in part, that was because it's much easier to pass through restrictions on abortion, particularly at a time when many people believe they were just mostly messaging bills that wouldn't have that big of an impact because Roe was in place than actually finding ways to cut government spending and take benefits that people like away from them. So those movements were really intertwined. And I think that's a really important grounding for the decade that followed and eventually for how Roe ended up being overturned.

It is the Tea Party, but it's really, you know, we call them the Tea Evangelicals. And thinking about them actually as one group of people is really helpful. I mean, many of the people who were elected at that time were very committed conservative Christians.

No, I think it's a terrific point that I think gets obscured in the traditional telling of this story. And just to continue pressing on it, Dr. Ghazaleh Mayeri, who is an abortion provider in Texas, recounted that for many years, the clinic where she practices had a regular crowd of anti-abortion protesters, and they were largely religious conservatives. Yet, curiously, on January 5th, 2021,

All the protesters were gone and the patients at that clinic left and went in and had no problem. And the next day, January 6th, 2021, the same thing happened. The regular protesters weren't there. And the clinic staff was pretty confused until they began watching the midday news coverage of the unfolding riot at the U.S. Capitol. And there, as the cameras panned across the

the crowd of January 6th protesters, Moyetti and the clinic staff realized why their parking lot was empty and there were no protesters because they were all at the Capitol. Like they found all the people that routinely came to their clinic. They were at the Capitol that day. And so-

In the book, you make a gesture toward linking this question of political violence, especially in the wake of Dobbs, to this broader question of religious change, the fervor over the anti-abortion movement, and

I think you may even be suggesting that some of the fights that we have seen over abortion over the years were really just dress rehearsals for the broader fight over democracy that we saw on January 6th, 2021.

Yeah, I think you hit on something really important that we're so gratified to hear you raise that point. I mean, I think the way we think about the fight over abortion rights is, of course, it is about when a woman, if a woman can and when she can legally terminate a pregnancy. But it is also about a whole lot more. And it's really for a lot of the people you're sort of talking about this movement of anti-abortion movements.

protesters that has now become so integrated into the broader MAGA movement. It is a fight for Christian power and for the place of sort of conservative Christianity in American life and at its core, really about what American families should look like and what the role should be of women in this big American project. I would just add that I think it could be easy to look

back at January 6th, 2021, and think of it as sort of this macho extremism moment, right? A lot of the images is very male coded. There's a lot of male visuals going on there. It's like a clip out of an action movie. Right. It's a very, very action movie. But it's this, the way in which sort of

the soft behind the scenes, like the slower creep of,

change and impact of things that were really quite radical, but done in very legal ways, had a huge effect for American women along the way. And I think it was really valuable in the research to see what that looked like, like what that slow kind of behind the scenes takeover looks like, and what kind of coup in a way that was, and it was entirely legal. Yeah.

Like the frog being boiled and you just, you don't feel it until it explodes on the steps of the Capitol. Yeah. And I think we're conditioned to see sort of big shifts and a radicalization in one way that we think it should look like guys storming the Capitol. But in fact, it can look a lot of different ways. And sometimes it can look like you're working things through the courts that hadn't been done before in sort of unprecedented ways. So I,

I think it's a matter of broadening how we understand what it means to force through major shifts in American life.

So speaking of the frog being boiled, I guess we wanted to shift from talking about conservatives to talking about the left, you know, progressives, the Democratic Party, because a major theme in the book is the left's complacency, their refusal to acknowledge and respond to the threat that is metastasizing in plain sight, you know, and you have this moment where in 2015, Democrats all of a sudden realized that maybe this could happen. But at that point, you know, you say it's

too late. So I guess I would put the question to you, has the left learned its lesson or is it continuing to overlook the growing threats that are forming in the midst? You know, what do we need to do now before we will realize it's too late in a few years?

Well, I think 2015 as a realization point is really quite generous of you. And I'm not sure I would put it really that early for most people, but you know, I have to say that I don't, it's understandable in a way, right? Like this was some, Roe was a foundation. I,

I mean, look, I don't need to tell you guys. People don't really know a lot of the names of a lot of Supreme Court cases, but they know this one, right? This was something that was really foundational to two generations of American families. So the idea that it could just simply go away was really hard for people to wrap their heads around.

And what that meant is when Democratic politicians were out there saying, oh, you know, you need to vote for me because Roe's under attack, people just thought it was like the kind of normal political promises that didn't actually, weren't actually real.

And as a result, it was not a major, you know, it wasn't that it's really changed overnight since Roe fell, but it really wasn't a major political driver. So it wasn't something that Democrats wanted to lean into because, frankly, it didn't do a ton for them politically. And so you had this situation where nobody really took this thing seriously.

all that seriously. And there were some Republicans too, who didn't think it would actually go. And you saw that, um, that's evident by the bills that were put on the books that, you know, after Rofell where you had all these conflicting statutes in states,

So I do think some of this was just a profound sense of denial across the political spectrum, aside from this like small core of conservative true believers who thought this could happen. And some of it was that it wasn't as politically salient as Democrats, you know, in a way that would be really useful to Democrats, particularly as it is now.

Now, look, I think the landscape has changed dramatically. I think it is one of the driving forces of this election. It is probably the best one of the best, if not the best issue Harris has to run on. And that's why you see Democrats talking about it in every race across the country every moment and every day they can. So I don't think there's that same sense of denial, but there's also not a magic wand.

that Democrats can waive here that will suddenly reinstate federal abortion rights. So I'm curious to see what happens if Harris is to win the election, what happens afterwards? Like there's been a lot of promises to restore Roe. It's unclear what that means, right? Because Roe doesn't exist. So what is restoring it?

What is the baseline we're setting in terms of weeks and all of that? And also, it's really legislatively difficult, given that the margins Democrats are likely to have if they are even able to hold the Senate. So I think we're going to be plunged into a really different conversation after the election. But I don't think this sense of denial and a lack of action is the same problem that it was before, Rafael, for the left.

So that is comforting, I guess, as we wait for... We're not really going to deliver a lot of comfort. That's not... We've been told that's not our space. I still feel like there is some denialism going on, like here in Michigan. Yes, because in 2022, you know, our state ratified a state constitutional amendment for reproductive freedom. And it still feels to me that people don't understand that in states with...

state constitutional protections for reproductive freedom, that's not going to do the trick in the event that the federal government tries to start enforcing the Comstock Act or reverses the FDA's approval of Mifepristone or, you know, they do other things like actually passing a federal abortion ban. I don't think it still feels to me like there's some dissonance and denial there. Well,

Well, it also feels like just the focus on the presidential race without sort of taking into account what the congressional races and especially the Senate will mean both for courts and for the ability to pass filibuster reform and to codify Roe and keep it codified.

It just, people don't seem to understand like this is a multi-tiered project, not just elect her. Although that is certainly part of it. Yeah. One of the things that the anti-abortion movement has been so effective at over the years is their ability to think and plan in generational like lengths of time. And I think that's,

the left, you know, it's, this is such a test for them right now. Like, yes, they're thinking about it in terms of an election, but the scale that made the right so effective was planning like way down the line. And we still see that even now, for example, yes, the Supreme court, you know, didn't rule on the FDA case. And the right expects that definitely to come back to the court and be examined again. But when they saw that loss,

While many people on the left were sort of touting this as a victory, the lawyers on the right were like, oh, we've just learned something from this, like how to adjust our strategy. Plus, then you have the Chevron case, which was a huge victory. And that's another example where there was so much talk of the economic and regulatory impact.

They're right. The social conservatives were telling us just how excited they were, how that was going to make things like repealing the FDA's approval for medication abortion so much easier for them. So they're just playing this down the line in a way that I'll be curious to see how Democrats and reproductive rights activists respond in a more strategic way.

way. But I do think you can't underestimate this, like wiping away of the denial. Like, I do think that's really important because I think, look, conservatives thought that they had taken, they had been able to overturn Roe by winning American hearts and minds, but it wasn't true. In fact, people just didn't think it could happen. So they weren't upset about it and they didn't understand what it would be if it were to happen. And now they do. And there are very few issues that have like

I don't know, 80% popularity and support in American life and contraception and support for fertility treatments are two of them. So I just think it's plunged them into such trickier political territory. And the Republican Party has, you know, you've seen in different places that

Candidates have tried to distance themselves from the anti-abortion movement where they could. They haven't found a political answer to this that really works for them. This is a very politically damaging issue for Republicans and the party. I think there's significant parts of the party that realize that. And so I do think that constrains some of what –

Some of what can happen. And if you look at, you know, the reaction to what happened with IVF down in Alabama, it's really interesting to see that, that, you know, I wonder if that would have happened in the same way before, you know, in the political climate that existed when Roe was still, you know, standing.

And anti-abortion activists themselves are worried about the fact that this denial has gone away. It's not something that they talk about publicly. We love a complacent opponent. Exactly. But they

you know, they're realizing, look, this is the first presidential election in half a century without Rose, the foundation. So obviously mobilizing Republican voters doesn't work the same way. But they don't, they don't have a sense. No one really knows entirely until, you know, how this will play out until we start to see some results. But, but,

On the other hand, like one of the lessons in our book, and we started talking about how we started our story in 2012, and there are a lot of resonances with the current moment there. I mean, it was the time when anti-abortion activists literally thought that all hope was lost because the Republican Party blamed them for President Obama's reelection.

So we'll see. There's a lot that's going to unfold here. And I just think it's hard to sort of overstate how unknown this time is.

Well, that is really comforting. The book is fantastic. We all loved it. It is not comforting reading, but it is essential nonetheless. The book is called The Fall of Roe and the Rise of a New America, and it is a Searing Must Read run. Do not walk to your local bookstore to get your copy. Elizabeth Diaz and Lisa Lear, thank you so much for joining us today. Thank you so much for the conversation. Thanks for having us.

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And now on to part two of the episode. Today, we are delighted to be joined by David Posen, who we have invited on the podcast to talk to us about his terrific new book, The Constitution of the War on Drugs.

David is the Charles Keller Beekman Professor of Law at Columbia and one of the best scholars of constitutional law around today. His most recent project is a book-length treatment of the war on drugs and its relationship to the Constitution. And I want to mention up top that the book is available on SSRN, so you can download it and read it right now for free. So if you're interested in this discussion, run and do that. David, welcome to the pod. It's great to have you. Thanks so much for having me on. So let's start with the impetus for the book. What drew you to this topic?

Kate recently wrote an essay for Jack Balkan's blog, Balkanization. And as she noted in that essay, the war on drugs is not typically a topic that we think of in terms of constitutional law. So what brought you and all of your constitutional law knowledge to this topic, the war on drugs, and to think about all of the ways in which constitutional law has failed and maybe even furthered the war on drugs?

Yeah, that observation of Kate's is itself part of what brought me to this topic. That is, there's this major drug reform movement that's been underway for years now, and it assails the war on drugs for its violations of racial equality, individual liberty, and

And as a constitutional law scholar, those struck me as the key tropes of modern constitutional law. And yet the drug reform movement almost never enlists the Constitution in its effort to fight puberty.

punitive drug policy. So it was that absence that drew me to the project more than anything. Where did the Constitution go in our struggles for humane and effective drug policies? And I knew enough when I was starting out that there had been generations of previous constitutional battles over drug policy

to know that there might be something there historically to look into. And that launched the project. The other thing I'll say briefly is the series for which the book is written is called the Inalienable Rights series by Oxford University Press. And one of the inalienable rights named in the Declaration of Independence is the pursuit of happiness.

And fully two-thirds of the state constitutions codify a right to the pursuit of happiness, and that used to inform interpretation of the federal constitution as well and bears on drug policy. So I was also curious about that absence. Where did the right to happiness or the pursuit of happiness go in our constitutional tradition? And I sense that that was bound up in the history of the drug cases.

As you mentioned, there is some history, despite the relative absence of the Constitution from present debates about drug policy. There actually have been lots of constitutional arguments made over the decades in state and federal court. And one of the, I think, really important contributions of the book is pulling that history together, right? Unearthing it for a lot of us. It was totally unfamiliar for me, much of it was. So can you just tell our listeners a little bit about what the major strains of argument are?

that were made, you know, sometimes getting traction against various aspects of our punitive drug laws. Sure. It varied by time period some. So, for example, in the late 1800s and early 1900s, you had a lot of arguments about the limits of government power. You know, the federal government couldn't regulate activities that happened purely within a state, and even the state governments couldn't regulate purely private conduct.

at least in some jurisdictions. And people argue that the possession and consumption of drugs like alcohol was purely private conduct, and so just walled off from the government's regulatory authority. But those arguments fall out of the picture by the mid-20th century when it's well established that the government at both the federal and state levels does have that authority to regulate even private conduct.

But what rises instead are rights claims in the 1960s and 70s. That's the focus of the book. And they take many forms. There are liberty and privacy claims for, again, personal possession and use of drugs, especially in the home.

Those are often brought under the due process clause. Those are so-called substantive due process arguments. There are arguments that illogical classifications of drugs, for example, lumping marijuana with heroin in the most restrictive drug schedules violates the equal protection clause and its guarantee of treating like things alike, you know, rational government decision-making. There are atheistic

Eighth Amendment Cruel and Unusual Punishment Clause claims that it's cruel to punish drug addicts for behaviors that they can't control, or that long prison sentences for nonviolent drug behaviors are grossly disproportionate to the gravity of the crime. There are First Amendment claims under the Free Exercise of Religion and the Free Speech Clause. It turns out there are many different parts of the Constitution that are enlisted and winning in some lower federal courts and state courts on all of these grounds in fighting draconian drug laws.

To me, this was the most fascinating aspect of the book, this whole idea that there was this history in which lower federal courts and state courts of last resort were actually crediting some of these alternative theories of constitutional protection for drug use. So you talk about the Alaska Supreme Court, for example, and there are these other lower courts. But this question of

constitutional limits on the state's ability to regulate drugs really kind of goes fallow in the 1960s and 1970s. And it does so at precisely the moment where the 14th Amendment and in particular, the Due Process Clause and the Equal Protection Clause are really pushing forward to protect racial equality and reproductive freedom. So why the mismatch in the ways in which these limits on government authority that come out of the Constitution are used? And why can't they be used for drugs?

Well, they are used for a period. So in the late 60s and early mid-1970s, the new liberty and equality arguments that the Supreme Court is blessing are exactly what's leveraged by drug reform advocates and drug defendants' lawyers to challenge these punitive drug policies. And then it's really toward the end of the 1970s that the courts pull back.

partly because of signals they're getting from the U.S. Supreme Court, partly because I think some courts are worried about just how far this rights revolution is going to go that they've ushered in, partly because drug politics are changing. It's a complicated story. But to make it more concrete, I'll just say it's in 1965 that the U.S. Supreme Court hands down Griswold v. Connecticut,

recognizing a right for married couples to use contraceptives in the home. And that ushers in this new era under a right to privacy rubric. And so suddenly, substantive liberty or privacy claims can be brought again

And drug lawyers quickly figure out that Griswold can be mobilized on their behalf. So they start bringing a whole tidal wave of claims using Griswold. And then I think your officer referenced the reproductive rights cases like Roe.

Roe, too, is used by drug reform advocates to stand for this right to control one's body and important life decisions. And can that be applied to drug use as well? So I think there is a moment where, for about a decade, where it looks like there might be a very robust privacy and liberty jurisprudence extending beyond marital couples, beyond reproductive choice, and into all sorts of personal behaviors as well. My favorite little factoid here with Roe and drugs is...

The California State Senate studies the issue of marijuana in the early 1970s and puts out this report that Roe v. Wade compels the conclusion that adults have a right to personal possession and use of marijuana.

What could be clearer than that Roe v. Wade compels that conclusion? So people did not think this was a fanciful leap from those privacy liberty cases to drugs. So can I push on that a little bit? And we see a kind of similar dynamic in the arena of sexual freedom and in particular gay rights at the same period of time. So there are a lot of anti-sodomy challenges that reference Griswold v. Connecticut and then eventually reference Roe.

Roe versus Wade, and over time, like they're sort of shut down very quickly. But then in the 2000s, the 1990s, they begin to flower again. And of course, we know in 2003, the court decides Lawrence versus Texas and finds that there's some kind of constitutional protection for consensual private same-sex sexuality. We don't see the same kind of oscillation with regard to the war on drugs, where there's this sort of opening and then retrenchment, and then again, another opening. And so why is that?

Yeah, I mean, there's an opening and then retrenchment, but not a further reopening. There, I think, by the mid-1980s, the full militaristic version of the war on drugs has taken hold. And what's different is that the kind of broad base of popular and elite constituencies for drug liberalization has gone away by the 1980s. And then the doctrinal openings have closed as well. So in the 1970s, by contrast...

You have numerous government commissions endorsing drug liberalization, President Carter, President Ford in his way as well. You have the National Council of Churches, the National Council of Rabbis calling for drug decriminalization. You have the

Consumers Union doing the same thing, the ACLU. So you have this wide swath of kind of establishment groups that recognize that punitive drug policies tend to be mistaken and cruel. And you have just surging use of drugs, illicit drugs, not only by hippies and countercultural figures, but also by Vietnam veterans and groups that are not easily dismissed, you know, as on the fringe of American politics today.

So, that all keeps alive the possibility of drug rights in the 1970s, as well as these doctrinal openings that are happening and is what goes away in the 1980s. I'll just say quickly on the privacy claims, what seems to me unresolved in the late 60s and 70s, but then proves fatal to claims for a liberty or privacy-based right to drug use, is whether or not you need to establish that your liberty interest is fundamental.

to have a chance of getting constitutional protection. And now I think we all teach in our common law classes that the first step in a substantive due process analysis is, is the liberty interest in question fundamental? However you judge that. If so, strict scrutiny. If not, you lose rational basis review. But that wasn't established in this period. And when it is established, I think in part because of the flood of drug claims that courts started to get afraid of

Um, no judges are willing to say your right to smoke pot is, is fundamental, you know, and therefore you win. Uh, the better version of the argument I think is your right to smoke pot is non-trivial. There's some liberty and privacy and autonomy interest at stake.

But what's really bad for the government's case is they don't have a good argument for criminalizing what you're doing. And so if we balance those, we find that you ought to not be thrown in prison for this kind of behavior. But when that possibility of that kind of argument goes away and you have to prove to a judge that it's fundamental, then the drug rights winds dry up. Right. So that's something that you suggest throughout the book, that the constitutional grammar that sort of solidifies sometime in maybe the late 70s, 80s,

I don't want to put words in your mouth, but that you seem to find in some ways like the most persuasive, that government most of the time, there's some kind of non-trivial interest. Government usually doesn't have any decent reason for restricting in the way it does, at least most governments.

currently illegal drugs. And that is an argument that the Constitution should recognize. And yet our current constitutional grammar doesn't necessarily do that. So we're talking mostly about liberty and privacy and equality. There are also interesting First Amendment strains in the story that you tell. So, you know, I think the First Amendment figures in a couple of different ways.

One that you alluded to a couple of minutes ago is there are First Amendment arguments grounded particularly in the Free Exercise Clause against certain prohibitions, in particular on the use of substances like peyote. But the First Amendment is also a major obstacle to drug law reform in that it cuts off a possible channel, which would be something like decriminalization paired with limits on advertising, unlawful

essentially that this kind of weaponized First Amendment and First Amendment protections for commercial speech have actually stood as a major obstacle to drug law reform. Can you kind of spell that argument out for our listeners? The First Amendment is used aggressively in the 60s and 70s to try to

attack these prohibitory drug laws, both under the Free Exercise Clause, which protects the free exercise of religion, and the Free Speech Clause. Free exercise challenges to drug laws yield a small set of wins, largely revolving around the Native American church and later the church of Santo Daime for peyote and ayahuasca. The free speech claims take two forms. Some people say that the right to use drugs is itself a form of symbolic speech, meaning

mainly, you know, protest against the establishment. And courts basically don't take that too seriously. If using drugs is symbolic speech, and so is a lot of things we do. But they take more seriously the idea that drug control can amount to thought control.

That is the idea that drugs can stimulate new modes of perception or cognition or sensation. There's a long line of free speech cases saying that freedom of thought is covered by the right to free speech. You have the Supreme Court in 1969 say that obscenity, in this case Stanley v. Georgia, you have a right to possess obscene materials, like a pornography video in that case, even though obscenity is not speech at all under the First Amendment.

because otherwise the government would have the power to control people's minds. So that looks like a promising avenue to challenge drug bans, particularly psychedelic drug bans, where people say, you know, free their minds. And that argument actually has taken off abroad in recent years under the banner of cognitive liberty.

Okay, enough on that. It was just to say there are an interesting mixture of free exercise and free speech claims you could bring against drug bans. But what happens instead, when those avenues largely get closed off, is the Supreme Court in 1976 recognizes commercial speech as a type of speech covered by the First Amendment. It wasn't clear before 1976 that advertising got any First Amendment protection. But once it does, when you have a legal product

then it's very hard to restrict advertising about it. You can restrict for illegal products. And, Kate, what I think you were getting at is this is troubling for those who want to legalize drugs or at least liberalize drug policies, but not have a flood of advertising targeting, say, adolescents in particular. For me personally, I'll just say I would love to pair relatively liberal drug policies with pretty strict limits on advertising, but that

balance is unavailable because once you legalize the First Amendment basically allows, think of the alcohol ads you see or what Purdue did with OxyContin, much more advertising of psychoactive substances than we see in other countries. So the First Amendment both isn't helping people get out of punitive drug laws very much, and it is helping manufacturers of legal drugs

you know, distribute them as widely as they can in a way that I think has deserved us. So I actually think there are a lot of parallels between the failure of the Constitution to check the abuses of the war on drugs and the failure of the Constitution to meaningfully protect abortion. And I mean both

the failure post-Dobbs, but in many ways, the failure of the Constitution to really protect access to abortion under the rules set forth in Roe and Casey, which formally protected access to abortion, but permitted all kinds of regulations that placed it functionally out of reach for many, many people. So I guess I'm curious if you agree that there are parallels between the failures of the Constitution in these two

you know, related but disparate domains. And I actually wanted to ask, I don't know if you saw this, but those parallels seem to me particularly acute right now in light of Louisiana's recent decision to classify the drugs used in medication abortion as controlled substances. So this is a recent development, but it makes me think that maybe these parallels, actually these lines may converge in more direct ways than I even realized when I was reading the book.

Yeah, I have to check out that new decision out of Louisiana, which sounds disturbing. Obviously, drugs don't implicate sex equality in the same way as abortion rights, and so are distinguishable. But I think you're right on the liberty interest side. There are a lot of parallels in the way the doctrines develop. So, for example, in Dobbs, you see Justice Alito demand this very stringent and unbiased

particular inquiry into what makes a liberty interest covered by the Constitution, that it be narrowly defined, deeply rooted in history and tradition, and he says that abortion rights fail that test. That same kind of logic is basically what is used to

weed out drug claims a generation previously. As with abortion, there actually is a plausible historical case for a right to illicit drug use that Alito seems oblivious to. And of course, the way he constructs the history is deeply uncharitable to the way you might think about abortion rights historically. And indeed, in Dobbs, there's this weird passage in dictum

where Justice Alito goes out of his way to say, if you define the liberty interest in question here too generally, that could lead to crazy outcomes, like a right to use illicit drugs, which has no claim to being deeply rooted in history. Again, oblivious to the fact that prior generations of Americans thought it clearly was a plausible constitutional claim. Wait, are you saying that Justice Alito is a poor historian, Dave? I'm saying he's...

He's an unserious historian, you know, and cites nothing for that claim about drugs. And, you know, I know you've deconstructed it. He's a better flag dancer than he is a historian, I think. I think that's right. But, you know, but it's interesting, too, kind of culturally, he links drugs to abortion. They're both, to him, sinful, shameful practices, it seems, you know. And just as he's oblivious or...

doesn't take seriously the ways in which, uh, the war on drugs, you know, for example, is disastrous for racial justice. He's not taking seriously, uh, gender justice. Um, uh, so this weird kind of, um, a historical, you know, reactionary agenda, I think, you know, is, is yoked together with it, with the way he treats drugs and reproductive rights claims. Um, now, I think you're adding another wrinkle, which is now, you know, uh,

Medication abortion actually makes drugs not just relevant by analogy, but very directly to abortion regulation. And what you're describing out of Louisiana, again, I'll have to check out, suggests this pathological convergence of punitive drug policy and punitive abortion policy. Again, all in the service of a broadly, I don't know what to call it, traditional, religious, traditional moral vision. I believe the word is theocracy. Theocracy.

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So one of the things it seems that you are saying in the book is that the Constitution hasn't been terribly effective at limiting or constraining the war on drugs. But it also seems like you're saying that in some cases and in some contexts, the Constitution has actually affirmatively legitimated the war on drugs. So I guess my question is, like, how do we figure the Constitution as a culprit in this story? Is this...

The Constitution making it impossible to address the question of the decriminalization of drugs or the Constitution affirmatively...

affirming, I guess, the idea that the government can wage a war on drugs. And yeah, I think this leads into some of the arguments that you note later in the book for perhaps harnessing the interest in originalism to advance some arguments that are historically grounded that might lead some of the conservatives on the court to perhaps think differently about the question of the war on drugs and the Constitution as a limit on it.

Right. Yeah, the Constitution is figuring into the war on drugs on a few levels. So one level is defendants are trying to invoke the Constitution as a shield.

You know, you can't punish me this harshly because I have a right, a liberty right, a privacy right, a right against cruel and unusual punishment or what have you. And when the courts eventually turn against those claims and shut them down, I see them as legitimating the government policies and entrenching those policies at a moment when it's unclear whether they would be broadly embraced.

So on the one hand, the Constitution fails to stop the war on drugs' worst excesses from taking off and allows this unjust policy to grow and grow. On the other hand, I think you're also getting at, Melissa, the Constitution at some points goes further and becomes a sword with which people attack justice.

relatively modest drug policies that are trying to reverse the worst excess of the war on drugs. So I'm thinking we already talked about commercial advertising and how pharmaceutical companies and makers of licit drugs use the Constitution to prevent restrictions on their advertising. We might also talk about how now that marijuana is getting legalized in a number of states, some of those states have tried to set aside licenses for cannabis dispensaries

for historically underrepresented racial minority groups. And the Equal Protection Clause has been evoked by basically white owners of other dispensaries to strike down those laws that started in Ohio and has spread more broadly. You have also the so-called Dormant Commerce Clause, the clause that gives Congress the power to regulate interstate commerce. It's been read to say that states therefore can't interfere too much with interstate commerce.

That's being used to prevent states from privileging local businesses too much, as against big national chains. So the dormer commerce clause could become a big problem in trying to avoid the big tobaccoification of marijuana. So in all these ways, the Constitution is both failing to protect people from overly punitive drug policies and attacking what seem to me relatively modest, sensible reforms to try to unwind some of the harms of the war on drugs.

I think, Melissa, I hear you also to ask, but going forward, could the Constitution play a more productive and less destructive role in this space? It certainly could in theory. In many countries around the world, there are now drug rights being recognized in limited forms, but usually around marijuana, recognizing that criminal responses to some drug behaviors really don't serve an adequate public benefit for the cost they impose on individuals.

But, here in the U.S., we have the rise of originalism, and I've talked about a lot in strict scrutiny. I see a bunch of originalist arguments that could be made against punitive drug policies if only the courts would take them seriously. And I also see a lot of other moves that could be made in the state courts. So, just as in prior periods, there were many clauses of the Constitution that seemed relevant to drug reformers.

Still today, those paths remain open. And some of the ones that you mention in the book involve the Eighth Amendment and the prohibition on cruel and unusual punishment, for example. Can you maybe flesh out what some of these might be and why, if they are actually originalist arguments, might the courts be unreceptive to them because they are originalists?

Right. Through and through. I think that in some ways the cleanest originalist argument should be quite compelling to anyone, whatever your interpretive commitment. So there's all this research. John Stiniford is a leading scholar in this space that when the Eighth Amendment was written in 1791,

There was a surprisingly broad understanding among many about what constituted cruel and unusual punishment, not just barbaric modes of punishment, but also punishments that fail to fit the crime in the sense that the punishment is way out of whack with the moral gravity of what the person has done. And Stineford says that if you're going to be a faithful originalist, you have to take seriously the possibility that long prison terms are

for nonviolent offenses violate the original understanding of the Cruel and Unusual Punishment Clause. So there's a very straightforward argument about how long prison terms for low-level drug offenses are a constitutional violation.

There's a lot of original scholarship to support other moves like reviving substantive liberty protections, maybe under the Privileges or Immunities Clause, maybe under the state protections for the right to pursue happiness. You could also challenge the federal government's regulatory authority under the Controlled Substance Act. If you're an originalist, you could support jury nullification, where juries get to refuse to convict, not because they believe the defendant's factually innocent, but because they believe the law is unjust.

which was used very effectively for alcohol prohibition. A lot of originals suggest that was the original understanding of the jury, that they would have the power to nullify. So there are all these originalist moves that I think could be quite fruitful for people who want to challenge strict drug laws. But originalism has this conservative valence in the way it's developed since the 1970s and 80s. And as it's been applied very

And sporadically, you know, and opportunistically, it seems to me by the Supreme Court, it tends not to vindicate the progressive originalism claims. And so I guess I'm not that optimistic that, you know, the Roberts Court is going to embrace any drug rights originalist claims, even though I think a number of them are very plausible on the merits. It's almost like they're faithless originalists, but...

Different line of argument. Selective originalists.

The Warren Court held that the status of drug addiction could not be the basis for criminalization, even if the state could criminalize drug use. So this sort of distinction between status and conduct. Robinson, as you know, featured very prominently in the oral argument in Grant's Pass v. Johnson, which is the case about unhoused individuals and whether localities can criminalize the status of being unhoused.

My view of Robinson, which is a fascinating case, is that it's already been whittled down to do very little. So the book talks about this in the Eighth Amendment chapter, where Robinson is this 1962 case where the Supreme Court is confronted with a California law, which as it had been construed by the California courts,

made it a crime to be a narcotics addict, to have the status of being a narcotics addict, whether or not it was proven that you had actually used narcotics. And the court said that violates the Cruel and Unusual Punishment Clause just for the status of being an addict to be a crime.

And it's a weird opinion because it has almost no Eighth Amendment analysis whatsoever. Probably a decade later, it would have been a substantive due process ruling, not an Eighth Amendment ruling. And actually, Robinson himself had died about eight months before oral argument in the case, and no one seemed aware of that. And arguably, the case should have been moot as a result. So lots of strange stuff going on. There was a big debate in the years after Robinson about

how far it should be extended. If it's cruel to punish someone for the status of being an addict, a status they can't control, as the court puts it in Robinson, then it shouldn't likewise be cruel to punish them for

procuring or consuming the substance to which they're addicted. You know, that would seem to follow from their addiction. And you have a number of lower courts finding in that spirit in the five years or so after Robinson. And then the courts kind of pull back by the end of the 1960s and suggest that Robinson really just prohibits criminalizing a status. But if there's any act in

involved, then it's not necessarily covered by Robinson. And very, very few states have laws that punish the mere status of anything, including addiction. But still, it's kind of hung around as this resource or this source of hope for people who think behaviors that we can't control...

that are out of our, you know, for example, if you are unhoused and need to sleep somewhere, ought not to be subject to criminal punishment. That's still really

that's a powerful, you know, idea that still pulls on a lot of people. And it's just hard to locate it within the doctrine at this point. Robinson still remains this potential source of that move. And there, I think, Robinson never had strong originalist grounding. That was really the Warren Court at its most freewheeling, just operating, you know, in a kind of common law or, I don't know, almost casual fashion with

with a morally compelling outcome. Another interesting historical tidbit with Robinson is one of the justices who's most plays one of the biggest roles in limiting its potential impact is Thurgood Marshall. You know, liberal lion, you might think someone who would be quite sympathetic to the kinds of people who would be protected by a broader reading of Robinson in this 1968 case, Powell v. Texas,

where a chronic alcoholic tried to get covered by, who was convicted of public intoxication, tries to say, "I couldn't control myself. I'm an alcoholic, and so I shouldn't be subject to criminal punishment for doing the thing I can't control." And Justice Marshall, in a plurality opinion, says, "We can't allow this logic

because then people are going to come in and say, I suffered from a compulsion to kill. And we're going to have to let murderers off the hook because that's going to be

covered by the Eighth Amendment. We're going to have to allow drunk driving to go unprosecuted. And as is pointed out in the dissent in that case and by lots of lower court judges, that doesn't necessarily follow at all. You could draw a lot of lines where only certain types of compulsion very closely tied to the addiction, say, are covered and not conduct that affects third parties like murder. It was not ever going to be the case that murder is going to go free. But I think what you see in Justice Marshall's

is he's afraid of any jurisprudence where case after case after case, lower court judges are going to have to wrestle with, could this defendant have controlled their actions? Or in some psychological or material sense, was it beyond their conscious control that they did what they did? And that is a very difficult determination. Judges are going to have to play psychologists and opening up that question

kind of argument, I think, for Justice Marshall was going to tax the judiciary's

resources and competence more than he felt comfortable with. So any kind of jurisprudence allows people to have a defense that I couldn't control myself. You have a lot of judges, including some liberals, who seem very averse to that. Perhaps paradoxically for Marshall, when the courts are called upon to exercise their own subjective judgment, it may have real racial dynamics underlying it that aren't even perceptible. And I think that's something that

He talked about in some of his other jurisprudence, and I think James Forman talks a lot about this when you think about the sort of unusual bedfellows of African-Americans who line up in favor of really draconian drug policies in his book, Locking Up Our Own. And Dave, you cite that book, as you're talking about some of the sort of social movement explanations for, so we were talking about jurisprudence primarily, help us understand why these arguments that were gaining some traction ultimately failed. Yeah.

those windows closed. There's also kind of a social movement explanation or set of explanations that you offer that distinguish drug policy reform efforts from like, you know, gay rights and other kinds of efforts that did bear fruit in courts, but had different sort of coalitions underlying those legal efforts. Can you just say a little bit about that?

Sure. To use the court's terminology, we hear a lot about how so-called discrete and insular minority groups are the best candidates for special protection because it's thought that they're not able to advocate for themselves effectively in the political process, and they're kind of recognizable to the courts as special.

groups that share a coherent social identity and are the subject of oppressive state treatment. And so that fits, say, the gay rights movement pretty well. And drug users, it seems to me, and I talk about in the book, are not a discrete and insular minority of the population. They're a diffuse and anonymous plurality.

There are tens of millions of them at any given time around the country illegally using drugs. So it's not a small number. It's a huge number. And however, they're largely not organized. They're in the closet. They are not claiming their drug use as an important part of their identity. And

and making kind of identitarian or moral claims about what they're doing. And so they aren't able to cohere into a robust coalition that can weather the losses that come in the courts in the 1970s. And once drug policy becomes much more punitive in the 1980s, and then you get the panic over crack cocaine in the mid to late 80s, all these groups kind of fold. So I think there are

certain characteristics of successful social movements that bring rights claims that the drug groups just don't have. But it's a bit of a puzzle why they don't do better, because

just as far as sheer numbers, you have tens of millions of Americans potentially subject to prison time in any given year across all strata of society. Why aren't elites mobilizing to stop that and protect their kids from going to prison? And there I also bring in how the

The way the war on drugs was enforced, however, people who are relatively high up the socioeconomic ladder, and particularly whites, were very unlikely to face any prison time for non-trafficking offenses. And so basically we reached this equilibrium where elites were spared the worst ravages of the war on drugs, and other more vulnerable groups in society were subject to its brutal punishment. And that equilibrium could last, sadly, for a full generation in our politics. But I do think...

There's something to be learned, not just from those very few rights movements that have succeeded in our history, which we lavish attention on, gay rights, gun rights, but also from the failures of plausible movements that started to make some headway and then got shut down. I wonder if there's almost more to learn from them, given that they're much more representative of what we see in constitutional law than the few famous successful movements.

Maybe just to take one more beat on kind of extrajudicial kinds of topics. So, again, we've been mostly talking about courts. And the book, you know, is about the Constitution, but it is mostly most of the stories that you're telling are court stories. But obviously there are lots of other actors who participate in shaping constitutional law. And there's a way in which there are all these pathologies baked into various kind of

organs of government. And we both, Dave, you and I both served in the executive branch in the Obama administration. And there's just the security clearance process strikes me as actually a very important kind of gatekeeper in which there are still these, you know, real archaic seeming questions about drug use. And it's a process like selection for federal government service involves winnowing out people who have either

engage in extensive drug use or cop to have engaged in extensive drug use. And that is just one, I think, of many, many examples of how, you know, policymaking is distorted by, you know, at these very different sort of moments and levers and entry points. Anyway, that's not something you touch in the book, but it is something that's coming to mind. Yeah, that's the role of drug questions and security clearance is fascinating. One could do a whole, you know, study of that. But it seems to me that

that it's been a kind of, uh, proxy for weeding out people who have, um, overly anti-authoritarian, you know, mindsets or, uh,

you know, libertarian views. Or who can be compromised in certain ways. That is, I think, like that is the predicate, I think, in this sort of drug liberalization era, because you have retained essentially these questions intact. But right, the logic continues to be, well, you could be subject to blackmail as opposed to there is something that fundamentally disqualifies you from government service. But the fact remains, the questions are basically unchanged since like

I don't know, the mid, late 1950s. I mean, it is wild, like, the drug questions that remain. I'll just say, you know, this is also, for me, a good example of how if you want to challenge...

drug policies that you think are unjust. Really, what prior constitutional reformers realized is you have to go to the source. That is, the prohibitions themselves and the penalties they impose. Because if you allow drugs to be criminalized, then all kinds of downstream bad things happen in the way those laws get enforced. You get security clearance litmus tests. You get urine testing at work.

You get invasive police tactics of all kinds. You get stop and frisk. You get no-knock warrants. You get aerial surveillance. That's because people use drugs and always have in huge numbers. They're victimless crimes in the sense that if someone buys drugs from someone else on the street, there is no one who's going to report that. That's a voluntary transaction.

Drugs are small and portable, so they're hard to find. People often do them in their home. So the only way you're going to possibly enforce drug laws is through very aggressive tactics of the kinds we just canvassed. It sounds a lot like sex. Like sex, yeah, because people are going to do it. No, but these are the same things that...

birth control advocates talked about in the 1960s, like, you know, how are you going to enforce a ban on contraception in Connecticut? Are you going to have a police officer under every bed? I mean, it's the same kind of logic. And one thing that really struck me from reading what people were writing in the 60s and 70s is everyone saw this. All the leading scholars and the government commissions that were studying the drug problem were

They all said, you know, if we allow these behaviors for widely popular drugs like marijuana to be criminalized, we're going to get a racialized police state. How else are we going to possibly enforce these laws? And given the political economy, racial economy of

criminal enforcement in this country. It's going to be targeted at kind of relatively poor urban neighborhoods and people of color. And you're going to get a quote. Nixon's Commission on Marijuana and Drug Abuse in 1972 says the following.

Possession of marijuana is generally a private behavior. In order to find it, the police many times must operate on the edge of constitutional limitations. Arrests without probable cause, illegal searches, and selective enforcement occur often enough to arouse concern about the integrity of the criminal process.

End quote. So that is a relatively conservative commission pointing out very clearly 50 plus years ago that you're going to get deeply troubling police practices if you don't decriminalize here. So it was just to say one thing the book tries to do is recover what I see as the first order fights of what can be punished and prohibited in the first place. Not to say that the enforcement and procedural issues aren't extremely important, but they're all downstream from the first order decisions.

Something that was in that quote that you just read suggests that contra the exchange we were just having about security clearances, there's actually a way in which the executive branch has sometimes been ahead of courts in, you know, at least identifying the need for reform or some of the potential dangers in punitive drug policies. So I actually wanted to...

pose a question about a recent development, which is that the DEA has proposed to reclassify marijuana as a Schedule 3 as opposed to a Schedule 1 controlled substance. That is a move that has President Biden's support. And this would not totally decriminalize marijuana. That would require, you know, complete descheduling. But it would place it alongside drugs like Tylenol with codeine. So things that can be, I think,

lawfully purchased, subject to limitations and robust regulation. It would also have lots of tax implications. There also was, toward the end of 2023, President Biden pardoned thousands of individuals convicted of simple possession of marijuana. So it does seem like

And there have been many meaningful steps toward drug reform happening outside of courts. Now, that's just the federal government. Obviously, as you mentioned earlier, we have seen total decriminalization in a number of states. You know, so those efforts have not been framed in constitutional terms. They haven't happened in courts. So I guess...

Why should we focus attention or sort of what is the advantage of focusing attention both on courts and maybe more broadly on the Constitution as actually, you know, sources and sites of potential real reform around our current drug policy? I can't help but just say on the rescheduling of marijuana, which looks like it's going to happen in the coming months from Schedule 1 to 3, that's actually going to do very little for access to marijuana because although Schedule 3 substances are

can sometimes be prescribed by a physician. So you might think we're getting medical marijuana. The drug in question has to also be FDA approved. So it's on the path, right? It doesn't... It's never going to get FDA approved, actually. Most people think because... Yeah, because the FDA requires a certain...

You have to isolate the relevant ingredient, our chemical compound within the drug and then subject it to kind of randomized controlled trials and what's considered best practice for clinical testing. And medical marijuana, I'm not a scientist, but from what I understand from the literature, people...

say that the way it works is all these different cannabinoids in the marijuana plant interact, create whatever benefits it affords. And you can't just isolate, you know, Delta-9 or a particular compound and test that and think you're getting the effect. So this is sometimes called the entourage effect of how medical marijuana works.

these chemicals work together. And the FDA process is just not suited to that kind of a drug. So if that's right, and that was a real layperson's version of the theory, then it's never going to get FDA approved. It's not even teed up for FDA approval. So I support what President Biden is doing here and moving toward a less criminal approach. But just to say that you would really need to de-schedule marijuana to get the full benefits. But your bigger question, Kate, is...

You know, what do we need common law at all here? If there is some real reform happening outside of the courts, outside of the Constitution, maybe that's the way to go. And I do think it's basically the way to go. But I also think constitutional law still has a role to play. And I'll just I'll just name a few roles that I think constitutional law could play constructively. One is the history of drug policy in this country is phenomenal.

as I see it, is one of episodic racialized moral panics around a given drug. You know, crack cocaine in the 1980s. We're now getting one around opioids. I think a panic of a different sort with a different racial valence. And it was heroin before that. And then you get very draconian drug policies that follow.

But in between these periods of panic, there are moments of relative calm when liberalizing reforms are possible. And I think one thing constitutional law can do well is entrench policy gains against a

against rollback. So one role common law could play is to help take off the table the most extreme punitive policies in periods where liberal reform is possible. I know that's abstract, but in general, I think that's right. And then second, I'll just say common law can still be useful outside of the federal courts. In the state courts, it's actually where we've seen the most

interesting and exciting drug rulings historically. They're open to different interpretive methodologies than the federal courts. For example, they tend to be much more open to balancing the costs and benefits of policies in the federal courts like the courts of the rest of the world do. So I think you could target your attacks at the state level where most drug prosecutions happen.

And then outside the courts altogether, you can pitch your constitutional arguments to regulators and legislators as, as you're suggesting. And, um, whatever you think of the proper role for courts in society, I think it's, it's outrageous that the executive branch doesn't take into account at all when it does drug scheduling, um,

the constitutional values at stake, whether it's liberty, privacy, racial equality, criminal punishment, nor does it take into account the benefits that people think they get from drugs, not just the medical ones, but whatever else. And it's a weird zone of administrative law and practice where the government only looks at costs and not at benefits. And of course, the cost-benefit analysis is going to get wildly lopsided, and that result's going to look

reasonable to punish things when you just exclude all the benefits people think they get, nor does the government look at the cost of criminal prohibitions and how they themselves are criminogenic. They create crime, and they themselves create more dangerous drug behaviors. So in all kinds of ways, I think constitutional arguments and other sorts of arguments could be woven into the way we do drug regulation, not necessarily in the courts, but would be just a much more sensible outcome.

So Dave, you have just said a mouthful and it's a perfect way to end because again, the book is so rich with so much history and then all of these really interesting arguments about what the future of drug policy and the war on drugs might look like. So thank you so much for joining us today. And the book listeners, once again, is The Constitution of the War on Drugs and it is sweeping and robust and free. All you need to do is fire up...

SSRN, which for those of you who are unfamiliar, is the Social Science Research Network, or just put the title into Google search, and it can be yours totally gratis today. And you'll get an amazing education on a history that has been hiding in plain sight. So thank you, Dave Pozen, for coming to talk with us today. Thank you, Melissa and Kate. I really appreciate it.

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