Category: reason

The Reconstruction Amendments: Essential Documents (2 Volumes) presents researchers, students and judges an unprecedented opportunity to investigate the original public understanding of the Thirteenth, Fourteenth and Fifteenth Amendments. For the first time, scholars have a word-searchable collection of speeches, debates and publications relating to the framing and ratification of the three Reconstruction Amendments. In this fourth and final post, I will briefly discuss the new research methodologies made possible by the collection, and describe newly available teaching materials for a semester course on the Reconstruction Amendments.

The two volumes contain more than 400 original historical documents spread across approximately 1,200 oversized pages (matching the Founders’ Constitution) with single spaced text. There is a lot of stuff in here.

Some researchers will know immediately where to look: perhaps straight to Susan B. Anthony’s “Make the Slave’s Case or Own,” (Vol. 1, p. 283) or Charles Sumner’s effort to broaden the language of the Thirteenth Amendment, (Vol. 1, p. 434), Jacob Howard’s Speech Introducing the Fourteenth Amendment to the Senate (Vol. 2, p. 185) or Frederick Douglass’s criticism of the Fourteenth Amendment as an “unfortunate blunder.” (Vol. 2. p. 293). Others may simply be interested in, say, studying the Fifteenth Amendment framing debates (Vol. 2, pp. 439-536). These kinds of specific interests are easily located in the collection, either by way of the Table of Contents or the indexes.

Those who purchase the e-edition of the volumes have the additional opportunity to conduct word-searches of the documents (as some VC members have discovered and put to good use!). This allows scholars to search a curated collection of Reconstruction-era documents for terms like “privileges or immunities,” “Corfield v. Coryell,” “appropriate legislation,” “the Federalist,” “bill of rights,” “natural rights” or “women’s rights.” The results of these searches can be surprising. Researchers will discover, for example, that the Reconstruction debates contain a great many references to “McCulloch v. Maryland,” but that the speakers held significantly different understandings of Chief Justice John Marshall’s famous opinion.

The documents in both volumes are arranged in chronological order and can be (and aspire to be) read cover to cover. Readers interested in doing so will be rewarded with a deep understanding of antebellum constitutional argument and the grand public constitutional debates of 1864-1870. Each section interconnects with the next. By the end of the collection, readers will realize that the Fifteenth Amendment debates contain significant arguments about the meaning of the Fourteenth Amendment, Fourteenth Amendment debates contain significant arguments about the meaning of the Thirteenth Amendment, and the Thirteenth Amendment debates contain significant arguments about the nature of the original Constitution.

Readers lacking a background in antebellum and reconstruction history, however, may find themselves at sea when confronted with such a vast array of historical documents. Absent some knowledge of the historical context in which these debates arose, it may be difficult for readers to appreciate the significance and, occasionally, even the meaning of antebellum and reconstruction constitutional debate. For that reason, both volumes include substantial introductory essays for each section of the collection. These essays explain the nature of the included documents, why they are important, and the historical context in which they appeared.

The essay introducing the drafting of the Thirteenth Amendment, for example, describes the included documents, explains the historical context of the Thirty-Eighth Congress, describes the major arguments for and against passage, notes how the proposed language of the amendment developed over the course of the debates, and provides the historical context, including the importance of President Lincoln’s reelection. Similar essays introduce the drafting and ratification of all three reconstruction amendments: The documents are briefly described, placed within their historical context, and the course of events explained so that lay readers may engage the documents with a basic idea of what happened, when it happened, and who participated.

The two volumes, along with their explanatory introductory essays present an opportunity for teachers to create a course on the history of the Reconstruction Amendments. Currently, there few (any?) such courses on the history of the Reconstruction Amendments at American Law Schools—at least prior to the publication of these manuscripts. This last term, Prof. Michael McConnell at Stanford Law School created such a course on Constitutional Reconstruction using the documents in this collection (and has graciously added his comments about doing so to the book’s promotional materials—see “review quotes” at this link).

To facilitate the creation of more such courses, I have prepared a set of teaching materials. They are available both at my SSRN webpage, and as a link posted on the University of Chicago Press webpage for the volumes (see “download the instructor’s manual”). These teaching materials include a sample syllabus for a fourteen-week course, weekly reading assignments with specific page numbers, explanations for the instructor regarding the nature and context of the assigned materials, and suggested questions for class discussion for each week of the course.

It is my hope, and it was my purpose, to provide a set of documents and teaching materials that would be useful to researchers, teachers, lawyers and judges regardless of their position on originalism, their interpretation of “privileges or immunities,” or their stance on the “1619 Project.” My goal is to have lowered the barriers to original historical research and teaching about this critical period in our constitutional history.

My thanks to Eugene Volokh and his fellow conspirators for giving me a chance to talk about what I did for my summer vacation … over the last ten years.

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On one night last summer, Ted Hicks, owner of Apex Extractions, had somewhere from 50 to 75 cars suddenly pull up in front of his cannabis extraction facility located in an industrial part of Oakland, California.

“Over a hundred people get out and they break into the facility and just raid it and swarm it and keep going and going until it’s wiped out,” he tells Reason.

Had you described this scene to someone a decade ago, they’d probably assume the people ransacking Hicks’ business were cops. Instead, he spent the whole night trying to get the police to show up to his licensed, state-legal cannabis manufacturing facility.

“Police were called. No one could get the police. 9-1-1 was busy, there wasn’t a police presence for hours,” he tells Reason, explaining that law enforcement was busy responding to protests and riots in other parts of the city over the police killing of George Floyd.

Hicks’ experience, unfortunate as it is, highlights the growing normalization of the once-prohibited industry, even as it has had to cope with the ups and downs of last year. All things considered, though, the pandemic hasn’t been a bad time to be a pot merchant.

California Gov. Gavin Newsom, a Democrat, issued his first stay-at-home order in March 2020, which required people to stay in their homes unless performing a few essential tasks, like buying food or going to work at places deemed essential by the state.

That order shut down huge swaths of the economy. But not the budding cannabis industry, whose collection of growers, processors, distributors, and retailers were all granted coveted “essential” status by Newsom.

“Being deemed an essential business by the state was huge in an industry like cannabis where federally we’re illegal,” says Kristi Palmer, the co-founder of edible manufacturer Kiva Confections. “You’re always pushed to the side, or treated like a not-legitimate business, so to be deemed essential was a pivotal, historical moment for our industry.”

That essential designation allowed the industry to stay open and keep operating, even at the height of lockdowns. That was fortunate given the sudden surge in demand for cannabis that came as a result of everyone being holed up in their homes with little to do but get high and watch Netflix. 

“There weren’t many other things you could go and do,” says D’Ann Lapenias, who runs Elevated, a dispensary in San Francisco. While restaurants and bars were cratering, Lapenias says her business actually had to start extending its hours to cope with higher demand. 

That surge in cannabis buying was felt all the way up the supply chain. “I have not ever seen such a craze around cannabis. The product was selling before the batches were released from testing,” says Michelle Hackett, president of Riverview Farms, which grows and distributes cannabis products from its home base in Salinas, California. (She hastens to adds that obviously her company wasn’t selling product before it went through state-mandated testing.) 

In order to keep up with increased demand and sales, Hackett says her company’s grow operation added an additional two 40,000-square-foot indoor grow rooms and packed more plants into their existing greenhouses. Production went up about 20 percent, she says.

This isn’t to say it was all upside for the cannabis industry. Cannabusinesses weren’t immune from the increased costs and challenges imposed by the need to socially distance and sanitize.

Palmer says her company had to stop production of their popular churro bar product because the manufacturing process required workers to stand close to each other. Hackett had to change things up by staggering workers’ breaks and lunch hours to accommodate social distancing.

Lapenias says she had to cut her number of registers from six down to four to be in compliance with capacity restrictions. She also had to write a full COVID-19 prevention program.

“It was a lot of learning,” she says, saying that the plan she wrote had to be vetted “line by line” by Elevate’s other owners, the company’s lawyers, and San Francisco’s health department.

Customers and employees had to answer health questions and get temperature checks before entering the store. The company’s HR policies had to be changed to make it easier for employees to stay home even if they felt so much “as a tickle in their throat,” Lapenias said.

There were also no small amount of difficulties that came from being a federally illegal business.

Hackett notes that while a pizza business run by her family was able to make use of federal small business relief loans during the pandemic, her cannabis business wasn’t so lucky. That only made it harder to retain employees given their own coronavirus concerns and the generous relief the federal government was providing to the unemployed.

As an added indignity, Hackett notes that Monterrey County, where her business is located, used cannabis tax dollars to fund a host of relief programs that cannabis businesses weren’t eligible for. 

“All the problems that existed for cannabis businesses before continued, such as lack of access to banking and cashless transactions and other financial services. Their inability to deduct business expenses on their taxes, their ineligibility for [the Paycheck Protection Program] or [Small Business Administration] loans,” says Morgan Fox of the National Cannabis Industry Association (NCIA).

There were a lot of little things during the pandemic that made life harder for cannabis businesses too. The end of in-person industry shows made it harder for Hackett’s company to connect with retail clients, she says. Palmer said getting packaging material from China was a real difficulty for a while. 

Those, of course, were problems faced by a lot of other businesses and industries too. In that way, the pandemic showed how far cannabis had come in making itself a normal industry with normal problems. If only the federal government would see them that way, too. 

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On January 28, 2019, plainclothes narcotics officers broke into a house on Harding Street in Houston and killed all three occupants: Dennis Tuttle, a retired 59-year-old machinist; his 58-year-old wife, Rhogena Nicholas; and their dog. The couple’s families marked the two-year anniversary of that deadly home invasion by filing federal civil rights lawsuits against the city, its police chief, and 13 officers implicated in the operation.

The raid, which was triggered by a phony tip, was based on a no-knock search warrant that Officer Gerald Goines obtained by falsely portraying Tuttle and Nicholas as -dangerous drug dealers. The centerpiece of Goines’ search warrant -affidavit was a fictional heroin purchase by a nonexistent confidential informant. Another narcotics officer, Steven Bryant, backed up Goines’ story. Goines and Bryant eventually were charged with several state and federal crimes, including two counts of felony murder against Goines.

Houston Police Chief Art Acevedo, who hailed the cops who killed Tuttle and Nicholas as “heroes” and 10 months after the raid was still dismissing “the chances of this being systemic,” would like the story to end there: with two bad apples whose lies led to the regrettable but necessary use of deadly force against two people who, in turned out, were not actually heroin dealers. But the lawsuits argue that the blame extends to 11 other cops who helped instigate the raid, executed it, or allowed it to happen; Acevedo, who has never apologized for posthumously defaming Tuttle and Nicholas or given a full explanation of why they died; and the city, which built a moldy barrel where apples were bound to go bad and spread their rot.

The lawsuit filed by Nicholas’ mother and brother says Narcotics Squad 15, which executed the raid, “operated as a criminal organization” that “tormented Houston residents for years.” The officers’ crimes included “search warrants obtained by perjury,” “false statements submitted to cover up the fraudulent warrants,” “improper payments to informants,” “illegal and unconstitutional invasions of homes,” “illegal arrests,” and “excessive force.”

Goines, whom Acevedo initially described as “a big teddy bear” who was “tough as nails” and had “tremendous courage,” worked in narcotics for 25 years. According to news reports and court documents, he routinely lied to obtain no-knock search warrants, framed innocent people, handled evidence recklessly, carried on a sexual relationship with a confidential informant, and stole public money.

Goines was not the only allegedly corrupt officer in Squad 15. Since the Harding Street raid, Harris County District -Attorney Kim Ogg has charged a dozen current or former narcotics officers with felonies, including lies about overtime and drug purchases.

“Houston Police narcotics officers falsified documentation about drug -payments to confidential informants with the support of supervisors,” Ogg said in July. “Goines and others could never have preyed on our community the way they did without the participation of their supervisors; every check and balance in place to stop this type of behavior was -circumvented.”

Acevedo argues that Goines’ colleagues acted in good faith based on a warrant they believed was valid and should not be held responsible for his fabrications. In January, after a Harris County grand jury indicted Officer Felipe Gallegos for murdering Tuttle, Acevedo reiterated his position that the cops “responded appropriately” to the “deadly threat” they encountered after they broke in the door and immediately opened fire, killing the dog with a shotgun.

An independent forensic examination commissioned by the Tuttle and Nicholas families cast doubt on key parts of Acevedo’s story, including the justification for shooting the dog and the claim that Nicholas, who was unarmed, posed an imminent threat. The physical evidence indicates that the cops, who said Tuttle responded to the violent invasion of his home by grabbing a revolver and shooting at the intruders, blindly and wildly fired dozens of rounds. Tuttle—who supposedly fired four rounds, hitting one cop in the shoulder, two in the face, and one in the neck—was frail and disabled, which his family says makes that feat implausible.

Both families argue that the city’s “policies, customs or practices,” including inadequate training and lax supervision, invited Fourth Amendment violations. They say the city has refused to answer basic questions about what happened during the raid, which was not recorded by body cameras. “It’s been two years now,” said John Nicholas, Rhogena’s brother. “We’re not going to quit until we get answers.”

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4/22/1992: Planned Parenthood v. Casey argued.

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It’s 2021 and more U.S. women are using—or at least admitting to using—marijuana while pregnant. In 2016, around 7 percent of pregnant women in a national survey said they used marijuana in the past month, up from 3.4 percent in 2002 and 3.9 percent in aggregated data from 2007-12. Should public health authorities be worried?

Probably not. Shaky science makes measuring the effect of a mom’s marijuana use on fetal development difficult, but the best available evidence suggests fears about fetal risk, while not unwarranted, are often overblown.

Studies on marijuana use during pregnancy are inconsistent and inconclusive. But cannabis is not known to be teratogenic—that is, to cause birth defects—in humans. The bulk of scientific evidence suggests that risks posed to developing fetuses are relatively minor and babies exposed to marijuana in utero still fall within normal ranges of outcomes.

A 2020 review looked at longitudinal studies on “the impact of prenatal cannabis exposure on multiple domains of cognitive functioning in individuals aged 0 to 22 years” and found that “evidence does not suggest that prenatal cannabis exposure alone is associated with clinically significant cognitive functioning impairments.” Researchers did note some differences—”those exposed performed differently on a minority of cognitive outcomes (worse on < 3.5 percent and better in < 1 percent)” — although “cognitive performance scores of cannabis-exposed groups overwhelmingly fell within the normal range.”

A 2016 review of studies on potential ties between in utero marijuana exposure and adverse birth outcomes—things like low birth weight and preterm delivery to miscarriage and stillbirth—found “maternal marijuana use during pregnancy is not an independent risk factor for adverse neonatal outcomes after adjusting for confounding factors.” Instead, any increases in adverse outcomes appeared “attributable to concomitant tobacco use and other confounding factors.”

Sussing out the effects of marijuana from the effects of other risky behavior presents a problem. “Illegal behaviors tend to cluster so women who use marijuana are more likely to use other drugs,” Emily Oster, author of Expecting Better and Brown University economist, explained in her Substack Parent Data. “Reporting on use is hugely biased and we are likely to identify only a (very non-random) subset of women who use.”

As marijuana becomes increasingly accepted, studies on its effects are likely to improve. “The best new evidence on this comes from a 2019 study out of Canada,” Oster writes. Matching women who used cannabis with demographically similar women who didn’t, researchers did “find evidence of worse birth outcomes among the cannabis users,” including “an increased risk of prematurity and NICU transfer. The increases are moderate but statistically significant: preterm birth occurred in 10% of cannabis users and 7% of non-users.” An August 2020 study from the same authors found marijuana use correlated with slightly higher incidences of intellectual disability and learning disorders, as well as higher chances of having autism spectrum disorder. “The percent increase is large—about 50%—and significant,” Oster points out, though the researchers do note that the overall incidence rate is still small.

Though the researchers tried to demographically match participants between groups, it can still be hard to totally compensate for the ways marijuana users may differ from non-users. For instance, marijuana users may be more likely to have partners who use, too, and dads who smoke pot prior to conception may have sperm changes that correlate with higher autism risk.

Ultimately, correlational studies like these raise important possibilities but have major limitations. Some are done not during pregnancy but by later asking women to recall behaviors during their pregnancy, which ups the likelihood of unreliable information. They also often fail to differentiate between consumption methods, timing, and dosage, so we can’t know if any and all marijuana use triggers a specific outcome or if it’s only produced by certain methods of consumption, THC content, frequency, or at certain stages of pregnancy.

The biggest problem is that it’s hard to isolate specific factors like marijuana consumption. The population of women who not only use marijuana during pregnancy but are also willing to admit to researchers that they do may differ from those who don’t.

An Australian study published in 2020 found differences in birth size and length, head size, and gestational age at birth in the offspring of women who had still used marijuana at or after 15 weeks. But “the mean age and socio‐economic status of women who continued to use cannabis were lower, and their mean anxiety and depressive symptom scores higher than for other participants; the proportions who consumed alcohol, used other illicit drugs, or were smoking at 15 weeks of pregnancy were also higher.” (Notably, “neonatal outcomes for babies of women who quit before or during early pregnancy were not significantly different from those for infants of women who had never used cannabis.”)

A review of evidence published in February 2020 “points to the possibility of lower birth weight, diminished IQ and more behavior problems among children whose mothers used cannabis during pregnancy, but notes it is very difficult to separate the marijuana use from other demographics or other variables,” writes Oster.

Another 2020 study purported to show children exposed to marijuana in the womb had a range of “attention, thought, and social problems” later in life by looking at data on 9- to 11-year-olds in a large longitudinal study. But since women who admit to using marijuana during pregnancy are different in myriad ways from those who don’t, there could be a range of differences in the heritable traits or early childhood experiences of their offspring, which could be responsible for subsequent cognitive differences.

When public health officials in the U.S. say that “no amount of marijuana use during pregnancy…is known to be safe,” this should be taken with a heaping grain of salt. Phrases like “known to be safe” or “proven to be safe” are frequently applied to the consumption of all kinds of substances—alcohol, artificial sweeteners, certain foods, prescription and over-the-counter drugs, even nutritional supplements—during pregnancy. This is because studies directly testing the safety of these substances for pregnant women can’t ethically be done. Hence, a huge range of legal and illegal substances aren’t “known to be safe” for developing fetuses, but that doesn’t mean they’re known to be harmful.

We know some substances to be unsafe during pregnancy—drinking lots of alcohol, smoking tobacco, consuming too little folic acid. Marijuana isn’t one of them.

With the limited evidence available, it may make sense for most pregnant women to avoid marijuana to minimize possible risks to their offspring. But the best choice for one woman and her baby won’t be the best choice universally. For women who have extreme morning sickness that makes getting adequate nutrients through food and vitamins difficult, and for whom marijuana mitigates nausea, using cannabis might make sense. Likewise, women with certain mental health conditions helped by marijuana may deem it safer than their usual prescription drugs.

Ultimately, pregnant women should make these decisions for themselves, in consultation with their doctors. Unfortunately, the state doesn’t always see it this way.

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Under ordinary circumstances, no self-respecting Floridian would consent to someone intentionally unleashing mosquitoes on their neighborhood. But a genetically engineered version of Aedes aegypti created by the bioscience firm Oxitec is changing that. The company’s Friendly male mosquitoes pass a genetic self-destruct code to all of their blood-drinking and dengue-transmitting female offspring, which over time suppresses the local Aedes aegypti population. The Florida Keys Mosquito Control District is undertaking a collaborative pilot project using Oxitec’s Friendly mosquitoes in small areas of the Florida Keys in spring 2021.

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