Category Archives: Constitution

What Is The Comstock Act?

During the recent Supreme Court argument over Mifepristone, Justices Alito and Thomas both raised the possibility that a case brought under the Comstock Act would be stronger than the one being argued. (Legal scholars have noted the multiple deficiencies in the current case, which–had Trump not appointed an intellectually-dishonest extremist to a Texas federal judgeship–would never have reached the Supreme Court.)

What, you may ask, is the Comstock Act?

Back in 1999, I edited “Free Expression in America: A Documentary History” for Greenwood Press. Producing the book required me to identify, reprint and explain documents that told the evolving story of America’s free speech jurisprudence. I began with “Foundations of Liberty”–the Magna Carta, Areopagitica and Cato’s Letters–proceeded through Common Sense, the Virginia Declaration of Rights, the First Amendment and several others, and on through America’s various battles with censorship to the late 1990s.

In a section titled “1900-1950: A Half-Century of Paternalism” I included “Birth Control and Public Morals: An Interview with Anthony Comstock.” I introduced the interview by noting that contemporary readers might come away considering Comstock a caricature. (Even at his most influential, he was widely ridiculed.) Comstock founded the Society for the Suppression of Vice, and he saw vice pretty much everywhere he looked. He campaigned against the publication of “vile books,” which he argued were responsible for “debauching” young men, and it isn’t an exaggeration to say that he considered any publication dealing in any way with sex to be “vile.” He was particularly offended by then-current efforts to provide women with birth control information.

The Act reads as follows:

Every article, instrument, substance, drug, medicine, or thing which is advertised or described in a manner calculated to lead another to use or apply it for producing abortion, or for any indecent or immoral purpose; and

Every written or printed card, letter, circular, book, pamphlet, advertisement, or notice of any kind giving information, directly or indirectly, where, or how, or from whom, or by what means any of such mentioned matters, articles, or things may be obtained or made, or where or by whom any act or operation of any kind for the procuring or producing of abortion will be done or performed, or how or by what means abortion may be produced, whether sealed or unsealed; and

Every paper, writing, advertisement, or representation that any article, instrument, substance, drug, medicine, or thing may, or can, be used or applied for producing abortion, or for any indecent or immoral purpose; and

Every description calculated to induce or incite a person to so use or apply any such article, instrument, substance, drug, medicine, or thing—

Is declared to be non-mailable matter and shall not be conveyed in the mails or delivered from any post office or by any letter carrier.” 

The Comstock Act was passed in 1873, and although it hasn’t been explicitly repealed, most lawyers believe that intervening case law has rendered it unenforceable. 

Justices Alito and Thomas are so intent upon banning abortion they have evidently overlooked the sweep of the Act, which would go far, far beyond preventing abortifacients from being mailed. Comstock was intent upon preventing the dissemination of anything and everything he found “vile,” including, in his own words “intemperance, gambling and evil reading.” He classed contraceptives with pornography, and when questioned about that, replied that “If you open the door to anything, the filth will pour in and the degradation of youth will follow.”

Even during his lifetime, Comstock was widely regarded as an unbalanced anti-sex zealot; his Society for the Suppression of Vice was intent upon censoring books, magazines or other materials describing or touching on sex, very much including medical information and information about contraception. (The Comstock Act at one time prevented the mailing of anatomy textbooks to medical students.)

In Comstock’s fanatic view, “Any indecent or immoral use” covered a lot of ground, much of it misogynistic. There’s a reason a recent biography of him is titled “The Man Who Hated Women.”

Trying to resuscitate Comstock’s “zombie law” will raise some interesting legal questions. Can the anti-abortion provisions be severed from the clearly unconstitutional censorship provisions of the Act? Does the prohibition against use of the U.S. mail extend to Federal Express and other private carriers? 

Are Alito and Thomas so desperate to control the lives and reproductive liberties of American women–so desperate to take us back to a time when women were breeding property– that they’re willing to revive Comstockery? 

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About That Plan…

An increasing number of media outlets are reporting on Project 2025–a plan by the Heritage Foundation together with other right-wing organizations intended to be a road map for a second Trump presidency.

Pundits have noted Project 2025’s similarity to Victor Orbán’s “illiberal” democracy in Hungary, where Orban has gutted the civil service and filled government positions with loyalists who support his attacks on immigrants, women, and the LGBTQ+ community, and his efforts to distance Hungary from other NATO nations. Orban’s recent trip to Mar-A-Lago was followed by a less-publicized meeting at Heritage.

So–what is in the Project 2025 plan for a second Trump Administration? Heather Cox Richardson recently spelled it out:

Project 2025 stands on four principles that it says the country must embrace. In their vision, the U.S. must “[r]estore the family as the centerpiece of American life and protect our children”; “[d]ismantle the administrative state and return self-governance to the American people”; “[d]efend our nation’s sovereignty, borders, and bounty against global threats”; and “[s]ecure our God-given individual rights to live freely—what our Constitution calls ‘the Blessings of Liberty.’”

In almost 1,000 pages, the document explains what these policies mean for ordinary Americans. Restoring the family and protecting children means making “family authority, formation, and cohesion” a top priority and using “government power…to restore the American family.” That, the document says, means eliminating any words associated with sexual orientation or gender identity, gender, abortion, reproductive health, or reproductive rights from any government rule, regulation, or law. Any reference to transgenderism is “pornography” and must be banned.

The overturning of the 1973 Roe v. Wade decision recognizing the right to abortion must be gratefully celebrated, but the Dobbs v. Jackson Women’s Health Organization decision accomplishing that end “is just the beginning.”

Dismantling the administrative state in this document starts from the premise that “people are policy.” Frustrated because nonpartisan civil employees thwarted much of Trump’s agenda in his first term, the authors of Project 2025 call for firing much of the current government workforce—about 2 million people work for the U.S. government—and replacing it with loyalists who will carry out a right-wing president’s demands.

The Global Project Against Hate and Extremism describes Project 2025 as a significant threat to democracy. Spearheaded by Heritage and supported by more than 80 extremist organizations, the plan aims to “rescue the country from elite rule and woke cultural warriors.” The Global Project notes reports of internal discussions centered around a proposal that the next “conservative” President invoke the Insurrection Act on his first day in office, in order to allow use of the military to quell civil unrest.

Project 2025 plans what it calls a “robust governing agenda,” with all of the hallmarks of authoritarianism.

It threatens Americans’ civil and human rights and our very democracy. The America that Project 2025 wants to create would involve a fundamental reordering of our society. It would greatly enhance the executive branch’s powers and impose on all Americans policies favored by Christian nationalists regarding issues such as sexual health and reproductive rights, education, the family, and the role of religion in our society and government. It would strip rights protections from LGBTQ+ people, immigrants, women, and people of color. It would dismantle much of the federal government and replace our apolitical civil service with far-right partisans it is already training in anticipation of a power shift. It would end attempts to enhance equity and racial justice throughout the government and shut down agencies that track progress on this front. Efforts to tackle issues such as climate change would be ended, and politicized research produced to back the project’s views on environmental policy, the evils of “transgenderism,” and women’s health would take priority.

There is more, obviously, in a thousand-page document, and it’s all very chilling, but what strikes me is how explicit and professional it is.

Project 2025 represents a very troubling step up from the tracts and manifestos produced by the disaffected and generally disturbed members of militias and groups like the Proud Boys and Oath Keepers. This is a professional document, produced and endorsed by people and organizations that already wield considerable power and influence–extremists who have already massively infiltrated the courts, completely taken over of one of America’s major political parties, and who “own” numerous lawmakers in Congress and in a number of states. Those “fellow travelers” are easily identifiable: we need only look at the GOP Representatives who oppose aid to Ukraine, attack trans children, and advocate for a national abortion ban. (Here in Indiana, that includes far-Right Congressman Jim Banks, currently running for the Senate, among others.)

The fact that Heritage felt free to put it in writing tells us the takeover is well underway. That should terrify us all…..

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Who Decides?

The Bill of Rights–as I repeatedly note– addresses areas of citizens’ lives that the Founders marked “off limits” to government authority, answering the question “who decides this?” in favor of individual citizens.

That framing is one way to look at today’s vicious culture war.

Those of us who want to maintain the constitutional line between matters government is authorized to decide and matters remitted to our individual consciences are under attack by the autocrats and theocrats who want to use the power of the state to impose their favored choices on everyone else. Nowhere is that clearer than in the persistent efforts to control what books we can read and what information we can access.

A recent article from Axios focused on that battle.

Attempts to ban books at public libraries have reached record levels, pitting right-wing parents and legislators against those who oppose censorship.

Driving the news: The culture war over books has become a legislative battle as well.

  • Last year, “more than 150 bills in 35 states aimed to restrict access to library materials, and to punish library workers who do not comply,” per the New York Times.
  • As a counterpunch, legislators in blue and purple states are coming to the aid of librarians to help them fight efforts to remove books with certain racial, sexual or gender-related themes.
  • Last June, Illinois became the first state to pass a law penalizing libraries that ban books.

What they’re saying: “We have broadened the framing to refer to ‘intellectual freedom challenges'” rather than just book bans, AnnaLee Dragon, executive director of the New York Library Association, tells Axios.

The hypocrisy is obvious. As one librarian reportedly told Axios, “It’s the same people who are out touting the freedom to own a gun. But you don’t think I have the right to pick a book for my kid?”

The American Library Association has mounted a campaign, Unite Against Book Bans, to encourage people to take action locally, and it’s also selling a workbook for librarians about “navigating intellectual freedom challenges together.”

Libraries have long been seen as cradles of democracy; in the words of former U.S. Senator Wendell Ford, “If information is the currency of democracy, then libraries are its banks.”

The current attacks are coming from what the article calls “a small but vocal minority” that opposes libraries precisely because they are democratic– inclusive, affirming, and intentional. That minority sees access to information as a threat.

The current onslaught has come at a time when libraries are serving an expanding variety of community needs. Librarians have gotten used to tackling whatever tasks society demands of them, and those demands continue to broaden. As Time Magazine recently reported, 

Libraries are among the most visited public service institutions, totaling more than 1 billion visits annually with users turning to libraries for critical educational services in addition to books. In recent years, as many as 118 million participants have taken part in nearly 6 million programs focused on early and family literacy, digital literacy instruction, after-school homework support and summer reading programs for youth, adult literacy and basic education, career readiness, small business development, arts and humanities programming, English for Speakers of Other Languages instruction, and special programs for adults navigating memory loss and reentry after incarceration.

The effort to restrict what information other citizens can access has accelerated.

Last year there were 1,269 attempts to censor library books, the highest number of attempted book bans in the two decades that ALA has been compiling data about censorship in libraries. During this same period, 2,571 unique book titles were targeted for censorship, an astonishing 32% increase over 2021, with 40% of book challenges occurring in public libraries, while the remaining nearly 60% occurred in school libraries. As these threats to the right to read continue, in all too many cases, parents are being roped into banning books they haven’t even heard of before, let alone read, by extremist groups using book banning as a political tactic. At a school board meeting in Pennsylvania this year at which book censorship was being recommended, one parent supporting the banning of a title proclaimed, “I have not read the book myself, I don’t intend to read the book, but I have had portions distributed to me of this book.”

If we have come to a time in this country when parents can be successfully swayed into restricting access to books they haven’t read, what does that mean for our future as a nation? What other personal and constitutional rights might next be compromised?

Some constitutional questions are open to interpretation. This one isn’t.

The First Amendment protects our right to decide for ourselves what we and our children read.

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Equal Protection? Or Discrimination?

Does the Equal Protection Clause of the 14th Amendment forbid the government to address problems caused by decades of unequal treatment? One off-the-tracks court apparently believes the answer is yes.

The Supreme Court has effectively ended most affirmative action programs, and now a federal judge has handed down what has been labeled a “White grievance ruling,” holding that the Minority Business Development Agency cannot focus on minorities, and must open its doors to every race–i.e., White guys.

I am not making this up.

U.S. District Court Judge Mark Pittman (a Trump appointee) ruled that the Minority Business Development Agency (which has been working with minority-owned businesses for 55 years) must open its doors to “every race,” in a case brought by a group of White plaintiffs who argued that the agency’s focus on minority businesses constituted discrimination against White people.

Pittman is the judge who killed Joe Biden’s student debt relief, and ruled that Texas couldn’t ban teenagers between 18-20 from carrying concealed weapons.

As one relatively intemperate pundit reported (no link available and “F bomb” omitted):

In his 93-page opinion… the judge ruled that the agency’s presumption that businesses owned by Black, Latino, and other minorities are inherently disadvantaged violates the Constitution’s equal protection clause. Further, he permanently prohibited the agency’s business centers from extending services based on an applicant’s race. In one truly infuriating passage, Pittman wrote: “If courts mean what they say when they ascribe supreme importance to constitutional rights, the federal government may not flagrantly violate such rights with impunity. The MBDA has done so for years. Time’s up.” Rarely does diction in a judicial ruling trigger a Looney Toons-style reaction complete with steam coming out of my ears and my face turning red with rage but wow! That did it!

This ruling is the latest in a string of judgments that have blown up federal affirmative action programs following the precedent set by the conservative-majority Supreme Court ruled against Harvard and the University of North Carolina using race-conscious admissions last June. The conservative public interest law firm Wisconsin Institute for Law & Liberty, who represented the White plaintiffs, was naturally ecstatic about the ruling. One of the firm’s attorneys, Dan Lennington, said, while somehow keeping a straight face: “No longer can a federal agency only cater to certain races.” This man really said “cater”! About America’s relationship to minorities! I’m going to stop writing now before I have a stroke.

I’m not having a stroke, exactly, but it is clearly past time to address a profoundly important issue–does the Equal Protection Clause forbid lawmakers from trying to solve (or at least ameliorate) specific inequities?

Do government efforts to combat disease A constitute discrimination against diseases B and C? Was the (now eviscerated) Voting Rights Act unfair to the states required to get pre-clearances due to past misbehaviors, since states that hadn’t purposely prevented Black folks from voting weren’t required to get such permissions?

You can undoubtedly come up with other examples.

Do some efforts to address past inequities go too far? Absolutely. It is always appropriate to examine programs that are intended to remediate past misbehavior, to ensure that those programs aren’t themselves violating Equal Protection. There are lots of gray areas, lots of legitimate differences of opinion based upon the specifics of the program being examined.

But this opinion really does seem to be–in the words of the quoted pundit–an example of White grievance. How dare the government try to help minority businesses that have demonstrably been disadvantaged through slavery and Jim Crow? How dare the government concede the ongoing effects of years of White privilege, and try to even the playing field?

It is certainly possible that some aspects of the agency –some programs–go too far, but finding that the agency’s mission violates Equal Protection is–in my humble opinion–evidence of racism and a total lack of basic legal reasoning. (In law school, we learn that there is no right without a remedy...)

An old friend of mine–a Republican, from back in the days when “Republican” didn’t mean “member of a racist MAGA cult”–used a sports analogy to point out that government is supposed to be an umpire–not a player on the field. Umpires and referees are supposed to ensure fair play. I don’t know much about sports, but I’m pretty sure that in basketball, when a member of one team fouls a member of the other team, the one who was fouled gets a free throw or two. It’s an effort to compensate for harm done by the foul.

Judge Pittman would evidently label that free throw discriminatory …

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One More Time

There are numerous reasons to vote straight Blue this November. But forgive me for returning to my argument that reproductive rights tops them all, and not just because women deserve the same bodily autonomy as men.

In a very real sense, Justice Alito threw down the gauntlet in Dobbs. That decision didn’t just eliminate a constitutional right that American jurisprudence had recognized for fifty years–it dealt a potentially fatal blow to the philosophy upon which our  entire constitutional edifice rests.

Before I (once again) explain why that assertion is not hyperbole, let me connect the dots between Dobbs and the recent, blatantly theocratic decision from Alabama equating a frozen embryo with a living, breathing child. As Jamelle Bouie recently wrote in the New York Times, key parts of the Republican coalition demand fetal personhood.

There’s no question that the Alabama decision would not have been possible without the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization, which revoked the constitutional right to an abortion. In doing so, the court gave states and state courts wide leeway to restrict the bodily autonomy and reproductive freedom of Americans, in the name of protecting life.

That the Dobbs decision would threaten I.V.F. was obvious from the moment the Supreme Court released its opinion in June 2022. That’s why, toward the end of 2022, Senate Democrats introduced a bill to protect the right to use in vitro fertilization. It did not come up for a vote.

Bouie points out that the Justices who delivered Dobbs were placed on the Court as part of an explicit transaction in which Trump traded American women’s rights for the support of Evangelical voters.

What’s important, for thinking about a second Trump presidency, is that fetal personhood is the next battlefield in the anti-abortion movement’s war on reproductive rights, and conservative evangelicals are among those groups waving the standard. As one such activist, Jason Rapert of the National Association of Christian Lawmakers, told The New York Times regarding the Alabama court decision, “It further affirms that life begins at conception.”

At least 11 states, The Washington Post notes, have “broadly defined personhood as beginning at fertilization in their state laws.”

It does not matter whether Trump rhetorically supports access to I.V.F. treatments. What matters is whether he would buck the priorities of his most steadfast supporters and veto a bill establishing fetal personhood across the United States.

As we all know, he would not.

A Republican win in November would guarantee further erosion of reproductive rights– but as I have repeatedly argued, it would do far more than that.

Dobbs was a frontal attack on the doctrine of substantive due process, often called the “right to privacy.” That doctrine confirmed the American principle that certain “intimate” individual decisions—including one’s choice of sexual partners or the decision to use contraception– are none of government’s business.

Constitutional scholars argue that the right to personal autonomy has always been inherent in the Bill of Rights, but it was  explicitly recognized in 1965, in Griswold v. Connecticut. Connecticut’s legislature had passed a law prohibiting the use of birth control by married couples. The law prohibited doctors from prescribing contraceptives and pharmacists from filling those prescriptions.The Supreme Court struck down the law, holding that whether a couple used contraceptives was not a decision government is entitled to make.

The majority recognized that recognition of a right to personal autonomy—the right to self-government—is essential to the enforcement of other provisions of the Bill of Rights.  Justices White and Harlan found explicit confirmation of it in the due process clause of the Fourteenth Amendment—which is where the terminology “substantive due process” comes from. Wherever it resided–in a “penumbra” or the 14th Amendment—the Justices agreed on both its presence and importance.

The doctrine of Substantive Due Process draws a line between decisions that government has the legitimate authority to make, and decisions which, in our system, must be left up to the individual. I used to tell my students that the Bill of Rights is essentially a list of things that government is forbidden to decide. What books you read, what opinions you form, what prayers you say (or don’t)—such matters are outside the legitimate role of government. The issue isn’t whether that book is dangerous or inappropriate, or that religion is false, or whether you should marry someone of the same sex, or whether you should procreate: the issue in America is who gets to make that decision.

Enabling autocracy–destroying our current system of democratic majorities restrained by the Bill of Rights– requires eliminating substantive due process. Dobbs thus opened a pathway to an enormous expansion of government power.

Outlawing IVF is just a way station…..

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