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Yesterday, I criticized Justice Barrett’s reported book deal with Sentinel, a conservative imprint. According to Politico, she will write about “how judges are not supposed to bring their personal feelings into how they rule.” I struggle to understand why a publisher would give Barrett a sizable advance for a book on this topic. She has been a judge for a short time, and has decided very few cases. Perhaps Sentinel predicted that Justice Barrett will generate a lot of buzz. She will go on a splashy book tour. She will speak to a wide range of groups and sell her feelings-free approach to judging, whatever that is. I fear this premature project could be problematic for Justice Barrett’s nascent tenure. Here, I will identify four principal problems.

First, what could Justice Barrett possibly have included in her book proposal about judging? I reviewed her appellate record last fall, and my tentative read was that she didn’t have many tough cases. As the junior judge on the Seventh Circuit, it was unlikely she would even have been assigned any significant majority opinions. On the Supreme Court, Justice Barrett has written two majority opinions, neither significant. Her only important writing to date was to rule that worshippers could not sing in a California church during the pandemic. (I’ll come back to this case later). Perhaps Professor Barrett had long ago worked out a complete theory of judging. If so, that’s news to me. I reviewed her law review articles last year. I didn’t see any evidence of some all-encompassing theory. And we certainly didn’t hear much about that theory during her confirmation hearing. Her testimony was lovely, but she stuck to general platitudes. How deep can this theory be that she worked out in the span of a few months?

Second, my greatest fear for this book is that Justice Barrett will set lofty standards for judging that her detractors will use to criticize, and even pressure her. Let’s say she praises the importance of stare decisis. What better way is there to keep feelings out of law than to stand by precedent? She may even cite her decision not to overrule Smith in Fulton. (She very conspicuously signaled that position during oral argument). Forevermore, if Justice Barrett wishes to overrule some precedent, her book can be used against her. Let’s say she explains why she needs to keep her Catholic thought out of her decisions. In the future, her book will be used against her in abortion and death penalty cases. Let’s say she insists that textualism is not a conservative jurisprudence, but is neutral. Hello Bostock II. (I query whether Justice Gorsuch’s devotion to textualism in his book may have greased the skids for Bostock). Justice Barrett’s job is too damn important to make unnecessary concessions in a book. Anything that can be used to exert influence over her in the future is an unforced error. Why? Why write this book now? Why give Justice Kagan ammunition to cow you into submission?

Third, I worry about the book tour. In my view, one of Justice Barrett’s greatest assets was that she was not from the Acela corridor. She hails from what Justice Scalia called the “vast expanse in-between.” This remove, I hoped, would insulate her from the demands of coastal-people-pleasing. Alas, writing a book–even with a conservative imprint–will force her to embark on a tour of coastal-people-pleasing. She will have to speak to audiences of different ideological perspectives. And she will have to custom-tailor her speech to appeal to those different audiences. Instead of giving a zealous defense of originalism, she will likely discuss some sort of watered-down jurisprudence. I know the switch, because I’ve done it before. I will give a very different accounting of originalism at, say, a Heritage Foundation talk, then I would at a Northeastern law school. Any good speaker knows his audience. Perhaps the only outlier on the Court is Justice Alito. He has an IDGAF approach to speeches. Look no further than his fiery 2020 Federalist Society address. I can’t see Justice Barrett taking this sort of message on the road–at least if she wants to sell some books. I hope she carefully reads Scalia Speaks and uses the Boss’s approach as a model.

Fourth, Sentinel, a conservative imprint, should have waited to see Justice Barrett’s conservative record before forking over two million dollars. My next point is grotesque, but I need to make it. Conservatives will not buy a book written from a disappointing Justice. If Justice Barrett follows the track of Justice Kavanaugh, then conservatives will soon write her off. Look no further than her COVID case. Can Justice Barrett go in front of a religious group, and explain why she ruled against worshipers’ right to sing? Of course, that question will be screened out. But people don’t forget.

Going forward, Justice Barrett faces perverse incentives. On the one hand, she will be marketing her book to conservative buyers. (Liberals will never forgive her for taking the Ginsburg seat). On the other hand, she will be deciding cases that could alienate conservative buyers. I don’t think the conflict of interest is inescapable, but it is obvious. After some reflection, I no longer think Supreme Court justices should write books, or go on book tours. There is a good reason why judges have limits on outside income. But, for whatever reason, multi-million dollar book advances are exempt.

I hope Justice Barrett takes this criticism in good faith. I had, and have high hopes for her. But so far, I question her judgment on and off the bench.

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In my last post, I described the general nature and theory behind the collection, “The Reconstruction Amendments: Essential Documents,” (2 volumes) (Kurt T. Lash, ed.) (University of Chicago Press, 2021).

 

In this post, I describe the theory and contents of Volume One, The Antebellum Constitution and the Thirteenth Amendment. This volume presents the antebellum constitutional debates which ultimately inform the framing and adoption of all three Reconstruction Amendments, and the public and legislative debates accompanying the framing and ratification of the Thirteenth Amendment. The two volumes are meant to be read (yes, read) in tandem; the debates and ideas documented in Volume One play key roles in the constitutional debates presented in Volume Two. That said, Volume One stands on its own as a documentary history of the antebellum national debate over whether the original Constitution was pro-slavery or anti-slavery (the current “1619 Project” debate), and the national abolition of slavery through the Thirteenth Amendment.

Volume One begins with documents representing the various theories of constitutional federalism that arose in the period between the Founding and the Civil War. The issue is important because theories of federalism later play key roles in the debates over the shape of the three Reconstruction Amendments (references to the Federalist Papers, for example, occur over and over again during the Reconstruction debates). Documents in this opening section include the Virginia and Kentucky Resolutions and “the principles of ’98,” the nationalist theories of John Marshall and Joseph Story, the radical state rights theories of John C. Calhoun, and James Madison’s elderly efforts to oppose both John Calhoun and John Marshall.

Readers may be surprised to learn that some of the strongest supporters of constitutional federalism during this period were northern abolitionists who relied on theories of federalism in their resistance to the nationalization of slavery. This is most dramatically illustrated in the state of Wisconsin’s 1850s decision to nullify the Fugitive Slave Act and reject the decisions of the Supreme Court.

Despite the wide-spread embrace of federalism, this same period also witnessed a growing nationalist interpretation of the originally federalist Bill of Rights. For example, the abolitionist Joel Tiffany insisted that the privileges and immunities of citizens of the United States included the rights declared in the first eight amendments (Tiffany, “A Treatise on the Unconstitutionality of Slavery”).

A similar example can be found in an 1859 speech by a young Republican congressman from Ohio who declared that the Privileges and Immunities Clause of Article IV impliedly bound the states to respect the federal Bill of Rights (John Bingham, “Speech Against the Admission of Oregon”). Bingham’s speech is critically important for anyone seeking to understand the theoretical roots of Bingham’s later drafts of the Privileges or Immunities Clause of the Fourteenth Amendment.

Much of the first half of Volume One presents the antebellum debates over slavery and its relationship to the original Constitution. These materials include the debates over slavery in the Philadelphia Convention, the Missouri admission debates, the rise of northern abolitionism, slave state efforts to suppress abolitionist literature, northern resistance to the extension of slavery into the territories and the Supreme Court’s decision in Dred Scott. Although the collection includes key congressional and political debates, the materials also include a vast array of voices from outside the halls of power demanding an end to the practice of chattel slavery. These include black activist David Walker’s “Appeal,” Susan B. Anthony’s “Let’s Make the Slave’s Case Our Own,” and Frederick Douglass’s “The Constitution of the United States: Is It Pro-Slavery or Anti-Slavery?”

The Second Half of Volume One documents the country’s remarkable journey from proposing a pro-slavery Thirteenth Amendment in 1861 to ratifying the anti-slavery Thirteenth Amendment in 1865. In a last-ditch effort to stanch the secession movement, Congress passed the “Corwin Amendment” which declared that “no amendment shall be made to the Constitution” which would authorize Congress to “abolish or interfere” with slavery in the states. The gambit did not work and, despite being ratified by a number of states, this first Thirteenth Amendment was forgotten with the outbreak of Civil War.

The dramatic framing and passage of the second Thirteenth Amendment takes up the remainder of Volume One. Documents include anti-slavery amendment petitions from the Women’s Loyal National League, Charles Sumner’s failed efforts to broaden the language of the Thirteenth Amendment, Democratic opposition speeches declaring that the proposed abolition amendment was an unconstitutional attempt to alter an irrevocably pro-slavery Constitution, the House of Representatives’ failed first effort to pass the amendment, Frederick Douglass’s “The Final Test of Self-Government, and the dramatic second round of debates and a second vote that turned on the decision of a handful of Democrats who might, or might not, change their original vote.

Volume One closes with the public debates over the ratification of the Thirteenth Amendment. Most of these materials, as far as I know, have never appeared in any prior collection. The proposed amendment raised a host of difficult questions that were discussed in newspapers around the country.

Were the states of the soon-to-be defeated Confederacy still in the Union and, if so, should they be allowed to vote on (and potentially defeat) the proposed amendment? (“Is the Union Destroyed?” New York Times editorial). Would ratification result in Democrats taking control of Congress since the formerly enslaved population of the southern states would now count as a full five-fifths of a person for the purposes of congressional representation (and membership in the electoral college)? (“Dr. Lieber’s Letter to Senator E.D. Morgan,” New York Tribune).

Lincoln’s tragic assassination resulted in Vice President Andrew Johnson taking the lead in securing the abolition amendment’s ratification. Johnson established provisional governments in the south and prodded their governors to ratify the abolition amendment and, perhaps, “extend the elective franchise to all persons of color who can read the Constitution” in order to quell congressional opposition to readmitting the southern states (Pres. Johnson to Provisional Mississippi Governor William Sharkey).

Meanwhile, anti-slavery societies, sensing that ratification was imminent, pivoted to calls for back suffrage, with advocates like Francis W. Harper declaring it would be unpardonable to say to black men “You are good enough for a soldier, but not for a citizen” (New York Times, “Speeches at the 1865 meeting of the American Anti-Slavery Society”). Similarly, the signatories of “An Address from the Colored Citizens of Norfolk Virginia to the People of the United States,” demanded the rights of suffrage, not only as protection from discriminatory black codes, but also because “[n]o sane person will for a moment contend that color or birth are recognized by the Constitution of the United States as a bar to the acquisition or enjoyment of citizenship.”

As the above documents illustrate, the drama of the Fifteenth Amendment began even before the ratification of the Thirteenth Amendment. In the meantime, however, ratification of the Thirteenth remained uncertain. Northern states like Delaware, Kentucky and New Jersey rejected the amendment. Provisional state legislatures feared Section Two of the proposed amendment would empower Congress to regulate local civil rights and establish black suffrage (see, e.g., Mississippi Joint Committee Report and Rejection of Proposed Amendment).

In response, Pres. Johnson’s Secretary of State William Seward wrote letters to the southern governors insisting that their concerns were “querulous and unreasonable, since that clause [Section Two] is really restraining in its effect, instead of enlarging the powers of Congress” (“Seward to S.C. Provisional Governor Perry” New York Times). A number of southern legislatures ratified the amendment along with resolutions declaring their understanding that Seward’s construction of Section Two was correct (see, South Carolina, “Ratification and Accompanying Resolutions,” Nov. 3, 1865).

When Secretary of State Seward declared the ratification of the Thirteenth Amendment in December 1865, the question of congressional power under Section Two moved to center stage. In November and December of 1865, multiple national newspapers published editorials with competing interpretations of congressional power to enforce the Thirteenth Amendment. The issue would dominate the early debates of the Thirty-Ninth Congress and ultimately influence their decision to pass a Fourteenth Amendment.

Tomorrow: Documenting the extraordinary drama of the framing and ratification of the Fourteenth and Fifteenth Amendments.

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Montana Gov. Greg Gianforte fortified First Amendment protections at public universities Thursday by signing H.B. 218. This bill designates outdoor spaces at public universities as public forums, eliminates “free speech zones” that relegate open expression to contained areas, and allows a cause of action in court to students whose First Amendment rights are violated.

State Rep. Mike Hopkins (R–Missoula) originally introduced H.B. 218 in 2018, after the University of Montana’s School of Journalism refused to sponsor a speech by the conservative sociologist Mike Adams. The bill passed with broad bipartisan backing in March, with just four votes against it in the House and unanimous support in the Senate. Gianforte praised the legislation, proclaiming, “A university should be a place where the free exchange of ideas is encouraged, without voices silenced.”

H.B. 218 is based on the Forming Open and Robust University Minds (FORUM) Act, a model bill developed by the American Legislative Exchange Council (ALEC) in 2017. The FORUM Act protects students and student organizations from disciplinary action for lawful expression. “Free speech is fundamental to American democracy, and FORUM represents a set of best practices for legislators to follow,” says Andrew Handel, director of ALEC’s Education Task Force.

The model bill affirms that the “legislature views the exercise of First Amendment rights on public university campuses in this state as critical components of the education experience for students and requires that each public university in this state ensures free, robust, and uninhibited debate and deliberation.” It urges public universities to inform students of their First Amendment protections and to educate all faculty (including administrators, campus police, residential assistants, and professors) of their responsibilities in upholding a culture of open expression through school websites, handbooks, and orientation programs.

It also eliminates so-called free speech zones, a concept popularized in the 1980s and 1990s. “Having a designated free speech zone sounds like a good idea in theory,” Handel says. “But they tell students that there’s a specific, small area of campus that they can use at a very specific time. They’ve been utilized as a way to chill freedom of expression.”

The legislation also requires institutions to produce annual reports on campus free speech incidents, which will then be submitted to legislators and made available to the public. “A significant amount of taxpayer dollars is appropriated to public institutions of higher education each year,” the model bill reads. “As such, this legislature must ensure that all public institutions…recognize freedom of speech as a fundamental right for all.”

The bill protects the rights of both speakers and students who protest speakers—and unlike other model legislation, it does not recommend particular disciplinary actions for those who obstruct speech. “If students fear their expressive activities could unnecessarily land them in a campus disciplinary hearing, they may choose to sit on the sidelines,” explains ALEC’s Shelby Emmett, “The FORUM Act protects speech. It does not punish speech.”

Upon passage, states also waive their immunity under the Eleventh Amendment, which prevents individuals from filing lawsuits against states in federal court. This enables students whose First Amendment rights were violated to bring a cause of action in court. If their suit succeeds, they are guaranteed an award of at least $5,000.

Montana is the 14th state to adopt a version of the FORUM Act. Others to pass the legislation include Alabama, Arkansas, California, Georgia, Iowa, Louisiana, Maryland, Mississippi, Ohio, Oklahoma, South Carolina, Washington, and West Virginia. Eleven additional states have banned free speech zones on public colleges and universities.

The FORUM Act has predictably drawn opposition. Some critics have objected to a provision saying public universities cannot deny a group funding because of its “actual or anticipated expressive activity,” fearing that this would protect religious organizations that discriminate against gays. “The American ideals of free speech must not be used as a sword for discrimination,” the political director of the Georgia ACLU told Project Q Atlanta last year.

Others say the legislation restates the obvious. In 2019, Montana’s then-Gov. Steve Bullock vetoed a similar bill, maintaining that free speech on campuses was already adequately protected by the Constitution. Handel concurs—to a point. “The Constitution is very clear that, regardless of your underlying beliefs, you have the right to speak and be heard,” he says. But as long as institutions have failed to uphold this promise, he feels the FORUM Act is necessary to reaffirm speakers’ First Amendment rights.

As the Supreme Court reminded us in 1957’s Sweezy v. New Hampshire, “Students must always remain free to inquire, to study and to evaluate, to gain new maturity and understanding; otherwise our civilization will stagnate and die.”

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The last time I was out at a dive bar was March 6, 2020. The SXSW music and cultural festival was canceled, wrecking Austin’s tourism economy. A sense of chaos and impending doom hung in the air. I went home somewhat aware of how the world was about to change. 

And, for the next month, all I did was smoke weed, cook Italian food, and watch The Sopranos. My social life evaporated. I spent a lot of time on my back porch, dogs and chickens frolicking in the distance, rolling joints, listening to Blondie and Destroyer, refreshing the New York Times “coronavirus live updates” tab, as if that would do much of anything.

I wasn’t the only one. At the beginning of the pandemic, the City of L.A. declared dispensaries essential businesses. Actor Seth Rogen announced to the world that he was smoking “truly ungodly” amounts of weed to endure quarantine, prompting headlines aplenty. Leafly reported that national pot sales boomed throughout 2020.

Amid an impressive amount of worldly despair, smoking weed made our lost pandemic year not good exactly, but more joyful for many people—myself included. Minimizing the role weed played in helping people endure the pandemic would be letting the drug warriors win.

Weed wasn’t just part of a smorgasbord of things I looked forward to; it was sometimes the only weekend plan I had. As any devoted stoner will tell you, it’s not just about watching Pineapple Express or The Big Lebowski or any of the other great movies in our esteemed canon; getting really stoned is a way of exploring your own mind when other forms of adventure are verboten. People need play, and when that’s been taken away from you, you must make do with the plaything of your own mind.

I was able to easily smoke with little fear of consequences because the two places I lived during the pandemic (Austin, Texas, and Brooklyn, New York) have chosen not to lock people up for possession of small amounts—a trend even conservative places like South Dakota and Mississippi have embraced.

When I first moved to Austin, this wasn’t the case; in fact, City Council unanimously voted to end arrests for possession of small amounts of weed in January 2020. If I’d chosen to live a few miles south, in Hays County, the risk of severe consequences would have been much higher: Hays still technically treats marijuana possession under two ounces as a misdemeanor that carries the threat of up to six months of jail time, though the county has announced plans to experiment with a “cite-and-divert” program for low-level offenses.

In the short time I’ve lived in New York, weed possession has gone from a tolerated but not technically permissible act to one that’s finally legal, signed into law by Gov. Andrew Cuomo on March 31. Soon I will be able to grow up to 12 cannabis plants in my house; visit dispensaries to buy and cafes to imbibe; and have the peace of knowing I live in a place where the authorities have decided I ought to have more ownership over my body and mind.

For those who don’t get high, it’s hard to understand why others do. Some people have eaten an edible before and had a Maureen Dowd-esque encounter with the gates of hell, scaring them off for good. Others have tried but nothing’s happened, and they haven’t persisted in their pursuit. Others are understandably too content with booze to experiment with the range of possible delights.

But smoke a joint and taste a lime curd tart or my famous goat milk pie; it will taste 30 times better than it did before. Turn on a Frank Ocean album. Lounge in chairs in the yard, on a crisp fall night, passing a joint around with friends. Marvel at the stars, noticing the cold air sliding across your nose and cheeks.

Some people toke because they enjoy becoming more attuned to sensory joys. Others do it for the heightened relaxation—a little block of time at the end of your day when you can truly calm down and forget about the mounting to-do lists. And, for those with social anxiety, who may have to work a little harder to enjoy even small gatherings, smoking with others can give you a deeper appreciation of other people’s weird quirks, vulnerability, humor, and fascinating backstories.

The pandemic brought personal, social, and economic pain. Some people lost family members and weren’t able to attend their funerals. Others found themselves facing job loss, credit card debt, debt, dashed dreams, and stalled careers. For families spread across the globe, border restrictions and the unpredictability of travel have taken an enormous toll.

But throughout that heaviness, my ability to roll a joint and go out onto my patio and gaze out at other people’s fire escapes and newly minted home-office spaces and planes landing at LaGuardia, increasing in volume as the months skate by, has added happiness where it felt like there was none.

For just a few minutes of the day, I would allow myself to forget about the pandemic and the lockdowns, the pace of vaccinations, the uncertainty of when I would see my family again. I’d allow myself to really enjoy that Blaze Foley song I’d heard years ago. Reclining into the comfort and dimensions of my own mind always felt like a restorative function, a good use of my time—time that seemed to stretch on and on with very little to distinguish it from what had come before.

For decades, drug warriors not only denied people this escape and enjoyment, but they patted people down, locked them up, and separated them from their families over pot offenses. President Joe Biden, who opposes federal legalization (unlike much of the rest of the country), still can’t quite wrap his head around the idea that actually, weed has enormous benefits that people ought to be free to reap.

I could write a paean to my bike or to cocktails, both of which made the pandemic less awful. But a paean to the act of getting high feels more fitting since this private, peaceful, solitary act is still one that some people still seek to condemn, as if this little bit of respite in a time of hardship is any business of theirs at all.

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4/20/2010: United States v. Stevens decided.

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